Smith v. State

• Decision Date: 20 March 1934
• Docket Number: 8 Div. 744.
• Citation: 157 So. 872,26 Ala.App. 271
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

157 So. 872

26 Ala.App. 271

SMITH v. STATE.

8 Div. 744.

Court of Appeals of Alabama

March 20, 1934

Rehearing Denied April 17, 1934.

Affirmed on Mandate Oct. 30, 1934.

Rehearing Denied Dec. 18, 1934.

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Tom B Smith was convicted of embezzlement, and he appeals.

Reversed and remanded.

Certiorari granted by Supreme Court in Smith v. State, 157 So 874.

Certiorari denied by Supreme Court in Smith v. State, --- So. ---.

Almon & Almon and Bradshaw & Barnett, all of Florence, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

RICE Justice.

Appellant was tried, and convicted, for and of the offense charged in the single count of the indictment which was submitted to the jury, the same being in words and figures as follows, to wit:

"The Grand Jury of said County, further charge that before the finding of this indictment: Tom B. Smith, whose christian name is otherwise unknown to the grand jury, while Clerk of the City of Florence, Alabama, a municipal corporation, who was then and there as such Clerk charged or intrusted with the collection, receipt, safekeeping, transfer or disbursement of money or funds belonging to or under the control of said City, 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 $2,720.50."

If there be pith, which we neither affirm nor deny, here, in the argument of appellant's counsel, that the indictment should, in order to have withstood his demurrers, allege that appellant was "in possession" of said money. etc., we answer that to our minds it does just that. True, "possession" is not alleged eo nomine; but the fair import of the language used can, as we read it, be to no other effect. See Wilkerson v. State, 23 Ala. App. 520, 128 So. 777, certiorari denied 221 Ala. 393, 128 So. 778.

The indictment being drawn, etc., as for a violation of the terms of Code 1923, § 3961, it was unnecessary to allege a "fraudulent intent," etc. See Ex parte Cowart, 201 Ala. 525, 78 So. 879.

But aside from the above, and in addition thereto-as applying to any other grounds of demurrer than those covered thereby-we observe that the said count of the indictment follows the language of the statute (Code 1923, § 3961, supra) denouncing the offense. This, under the circumstances, was all that the law required. See State v. Dodd, 17 Ala. App. 20, 81 So. 356; also, Code 1923, § 4529.

The demurrers to the said count of the indictment were properly overruled.

The theory of the prosecution was, as we gather, in major part, that appellant, who, as city clerk, was charged or intrusted with the duty of drawing checks or warrants on the city treasurer, in payment of obligations of the city-his own fixed salary among them-drew, personally, not only the amount of his salary, by this method, but, a considerable sum in addition thereto; that this additional sum so drawn by him was without authority of law, and that his said action constituted and embezzlement by him of such sum.

The defense was, as to the above, that the warrants so drawn by appellant for the "additional sum," payable to himself, were drawn with full authority of law, etc., and that he was justly entitled to receive the amount for which they were drawn.

As we view it, the issues thus raised were properly submitted to the jury.

However the state went further. While examining one Baylor, a certified public accountant-who had audited the books of the city, etc.-as a witness in its behalf, the state was allowed, over the objection, etc., of appellant, to elicit testimony from this witness, in substance or effect as follows: That the city of Florence had imposed and was collecting a tax of 2 cents...