Smith v. State

• Decision Date: 22 January 1952
• Docket Number: 5 Div. 332
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

Page 698

61 So.2d 698

36 Ala.App. 624

SMITH v. STATE.

5 Div. 332.

Court of Appeals of Alabama.

Jan. 22, 1952.

Rehearing Denied March 13, 1952.

Reversed on Mandate Nov. 25, 1952.

Crover C. Walker, Clanton, and Rives & Godbold, Montgomery, for appellant.

Si Garrett, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.

CARR, Presiding Judge.

The accused was indicted for the offenses of false pretenses and embezzlement. The indictment contained six counts. The indictee was convicted under the sixth count. This count is:

'The Grand Jury of said County further charge that before the finding of this Indictment, J. Lee Smith, alias James Lee Smith, while Chairman or President of the Court of County Commissioners of Chilton County, Alabama, one of the counties of the State of Alabama, who was then and there as such chairman or president, charged or entrusted with the collection, receipt, safekeeping, transfer or disbursement of money or funds belonging to, or under the control of, said County, did convert to his own use, or to the use of another person, contrary to law, a portion of such money or funds to about the amount of $200.00.'

The appellant moved to quash the indictment. The motion was based upon an erroneous minute entry of the clerk of the court. This identical question was decided adversely to the contention of the appellant in the case of Wyatt v. State, Ala.App., 57 So.2d 350, certiorari denied Ala.Sup., 57 So.2d 366.

Appellant's demurrers to the indictment were overruled. A ground is posed that Count 6 is defective in not charging that the act was knowingly done.

Title 14, Sec. 127, Code 1940, upon which Count 6 of the indictment is based, is as follows:

'Whoever, being charged or in any manner intrusted with the collection receipt, safe-keeping, transfer or disbursement of any money, funds, securities, bonds, choses in action or other property belonging to or under the control of the state or of any state officer, or belonging to or under the control of any county, civil or school township, city or town, or any officer thereof, converts to his own use, or to the use of any other person or corporation, in any manner whatever contrary to law, or uses by way of investment in any kind of property, or loans, either with or without interest, or deposits with any person or corporation contrary to law, or exchanges for other funds, except as allowed by law, any portion of such money, funds, securities, bonds, choses in action or other property is guilty of embezzlement, and, on conviction, shall be punished as if he had stolen the same.'

In the case of Ex parte Cowart, 201 Ala. 525, 78 So. 879, the Supreme Court held that under Sec. 6838, Code 1907, with some additions now Sec. 140, Title 14, current code, a fraudulent intent is not an essential ingredient of the crime.

The court in the same case held that under Sec. 6831, Code 1907, Sec. 133, Title 14, current code, fraudulent intent is an essential ingredient of the charged offense.

After the Cowart case was decided, Sec. 3961, Code 1923, Sec. 127, Title 14, supra, was added. This addition may have been inspired by the holding in the Cowart case. Justice Foster expressed this view in McGilvray v. State, 228 Ala. 553, 154 So. 601.

In the latter case the indictment charged that the defendant did 'embezzle or fraudulently convert to his own use money to about the amount of $40.00.'

In response to the questions presented for review Justice Foster observed:

'The ordinary meaning of 'embezzlement or fraudulent conversion' is that a fraudulent intent is included. Ex parte Cowart, supra. But section 3961, Code, makes embezzlement include certain conduct there definitely defined, which does not include a fraudulent intent. So that the charge of embezzlement includes the acts there specified. The indictment in this cause could be sustained by proving those acts, and the court did not err in submitting them to the jury as being included in it.' (Emphasis ours.)

In the case of Garner v. State, 26 Ala.App. 246, 158 So. 543, the indictment was based on a violation of Sec. 127, Title 14, as it appears in our current code.

We held that the indictment followed the statute and charged every material ingredient of the offense. The indictment, which we have examined in the court record, does not contain an allegation of a fraudulent intent.

On certiorari Justice Foster, again writing for the Supreme Court held, 229 Ala. 600, 158 So. 546:

'Under our statutes, 'embezzlement' includes statutory offenses which do not embrace all the elements of the English offense of embezzlement. The acts made a crime by section 3961, Code omit some of the essentials of that crime, but the statute declares that such conduct is embezzlement. So that to sustain a conviction on a charge of embezzlement under that Code section, it is not necessary that all the elements of the offense as it existed under the early English act (Knight v. State, 152 Ala. 56, 44 So. 585) be proven or charged, if the acts declared by the statute are proved and charged. And a general charge of embezzlement may be proven by such statutory requirements. McGilvray v. State, 228 Ala. 553, 154 So. 601.

'We cannot agree with petitioner therefore that an indictment under section 3961, Code, must aver possession of the funds by defendant or a fraudulent intent.'

The question of instant concern was up for review before this court in Smith v. State, 26 Ala.App. 271, 157 So. 872. We there held that it was not necessary to allege a fraudulent intent in an indictment drawn under Sec. 3961 which is the progenitor of Sec. 127, Title 14, supra.

This view was not disapproved by the Supreme Court on certiorari. 229 Ala. 207, 157 So. 874; 230 Ala. 700, 159 So. 912.

In consonance with these authorities and the historical background of the statute in question, we think that the conclusion is inescapable that Count 6 of the indictment is not subject to the indicated demurrer.

The fifth ground of the demurrer to Count 6 of the indictment poses this position:

'The Court judicially knows that the Chairman or President of the Court of County Commissioners of Chilton County, Alabama, was not charged or entrusted by law with the collection, receipt, safekeeping, transfer or disbursement of money or funds belonging to or under the control of said county.'

In support of this ground appellant's attorney urges that the county treasurer and the judge of probate of the county are officers entrusted with the above delineated duties, and therefore the probate judge in his capacity as chairman or president of the court of county commissioners is not so entrusted and cannot be the person subject to prosecution under Title 14, Sec. 127, supra.

Sec. 5, Title 12, Code 1940 provides in part:

'There is in every county a court of record, styled the court of county commissioners, composed of the judge of probate, as principal judge, and four commissioners * * *.'

Under the same title of the code, we have Sec. 53:

'All acts required by law to be performed with respect to county funds other than the receipt and disbursement of county funds by the county depository, shall be performed by the presiding officer of the board of revenue, or the presiding officer of the court of county commissioners or other like officer.'

And Sec. 76:

'No warrant shall be issued or check drawn on the county treasury or county depository by any person except the judge of probate or chairman of the board of revenue, or like governing body, or such other officer as may be designated by such board unless otherwise provided by law * * *.'

The section just above, in directing who is authorized to draw warrants, makes no distinction in the capacity in which the probate judge acts.

The statute under which the appellant was indicted includes persons who are in any manner entrusted with the collection, receipt, safekeeping, transfer, or disbursement of any county funds.

We judicially know that the appellant was Judge of Probate and Chairman of the Court of County Commissioners of Chilton County.

The probate judge, acting under his statutory authority in drawing warrants, or having it done, is performing a necessary part of disbursing or transferring county funds.

In the case at bar the undisputed evidence discloses that the appellant followed this procedure and received in this manner the amount of money he is charged with having embezzled.

Clearly the indictment is not subject to the ground of demurrer of instant concern.

The trial judge denied to appellant's counsel the privilege of asking prospective jurors, on voir dire, the following question:

'If you found from the evidence that the Defendant, J. Lee Smith, had drawn one hundred or two hundred dollars as ex officio fees from the County Treasury, and to which fees it may now appear he was not legally entitled, if he drew such fees openly, under a good faith claim of right, and without any criminal intent, would such evidence prejudice you or prevent you from giving the Defendant, J. Lee Smith, a fair trial, or from finding the Defendant, J. Lee Smith, not guilty if the evidence was not sufficient to convince you beyond a reasonable doubt that at the time he drew such fees said J. Lee Smith intended to commit a crime or had the necessary criminal intent? If so please hold up your hand and give your name.'

Without question the right of either party in civil or criminal cases to examine jurors as to their qualifications, interest, or bias that would affect a fair and impartial trial, should be liberally extended and freely granted. Title 30, Sec. 52, Code 1940; Dyer v. State, 241 Ala. 679, 4 So.2d 311.

The purpose of the privilege is to afford information to the parties relating to the qualifications of the jurors, so that the right of peremptory challenge may be exercised advisedly. It is not contemplated that the right should extend to questions concerning matters which involve intricate...