State v. Howell

• Decision Date: 12 January 1914
• Docket Number: 17075
• Court: Mississippi Supreme Court
• Parties: STATE v. W. S. HOWELL

64 So. 159

106 Miss. 461

STATE v. W. S. HOWELL

No. 17075

Supreme Court of Mississippi

January 12, 1914

APPEAL from the circuit court of Attala county, HON. J. A. TEAT Judge.

W. S Howell was indicted for embezzlement and upon demurrer to the indictment being sustained the state appeals.

The two indictments referred to in the opinion are as follows:

First "That W. S. Howell in said county, on the 2d day of September, A. D. 1912, being then and there the agent servant, employee, and bailee of the Jackson-Wallace Company a copartnership, composed of F. Z. Jackson, Sr., L. Doty Jackson, Mrs. C. Jackson, and Harvey Wallace, doing business under the style and firm name of 'Jackson-Wallace Company,' did then and there unlawfully, willfully, and feloniously embezzle and fraudulently secrete and convert to his own use, and make away with and secrete with the felonious and fraudulent intent to embezzle and convert to his own use, twenty-five dollars of the good and lawful money of the United States of America, the kind and description being to the grand jurors unknown, of the value of twenty-five dollars, of the property of the said Jackson-Wallace Company; by virtue and by means of his said agency, place, employment, and bailment, as aforesaid, did then and there receive, take into his possession, and was then and there intrusted to his care, by virtue of his said place, agency, employment, and bailment as aforesaid, the said sum of twenty-five dollars, of the value of twenty-five dollars, the kind and description being to the grand jurors unknown, the property of the said Jackson-Wallace Company, the said money being then and there received by and intrusted to him (the said W. S. Howell) for and in the name of and on account of the said Jackson-Wallace Company, and afterwards did then and there fraudulently, unlawfully, willfully, and feloniously embezzle, secrete, and apply to his own use the said twenty-five dollars of the property of the Jackson-Wallace Company, his employer and master as aforesaid, from the said Jackson-Wallace Company, willfully, unlawfully, and feloniously did take, steal, and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Mississippi."

Second: "That W. S. Howell in said county, on the 2d day of September, A. D. 1912, being then and there the agent, servant, employee, and bailee of F. Z. Jackson, Sr., did then and there unlawfully, willfully, and feloniously embezzle and fraudulently secrete and convert to his own use, and make away with and secrete with the felonious and fraudulent intent to embezzle and convert to his own use, one thousand five hundred and forty-one dollars of good and lawful money of the United States of America, the kind and description being to the grand jurors unknown, of the value of one thousand five hundred and forty-one dollars, of the property of F. Z. Jackson, Sr.; by virtue and by means of the said agency, place, employment, and bailment, as aforesaid, did then and there receive, take in his possession, and was then and there intrusted to his care by virtue of his said place, agency, and employment, as aforesaid, one thousand five hundred and forty-one dollars of good and lawful money of the United States of America, of the value of one thousand five hundred and forty-one dollars, the kind and description of said money being to the grand jurors unknown, and said money being then and there received by and intrusted to the said W. S. Howell for and in the name of and on account of the said F. Z. Jackson, Sr., and afterwards did then and there fraudulently, willfully, and feloniously embezzle, secrete, and appropriate to his own use the one thousand five hundred and forty-one dollars, the property of the said F. Z. Jackson, Sr., his employer and master aforesaid, from the said F. Z. Jackson, Sr., willfully, unlawfully, and feloniously did then and there steal, take, and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Mississippi."

Reversed and remanded.

Geo. H. Ethridge, assistant attorney-general, for the state.

It is difficult to see upon what grounds or reason the demurrers were sustained. The indictment charges a perfect case of embezzlement under section 1136 of the Code and it is certainly sufficient under 1436 of the Code. I infer from the demurrer that the defendant challenged the validity of the indictment mainly on the theory that the indictment charged both an embezzlement and larceny. I submit that the indictment does not charge larceny and that it is not open to objection for duplicity. The indictment is a good deal like the indictment in State v. Journey, 62 So. 354. An analysis of section 1136 of the Code in a comparison of the indictment will show that the indictment charges every necessary averment of the Statute. The mere fact that the indictment concluded in every case with the averment "did then and there steal and carry away" would not affect the validity of the charge as to the embezzlement. It is a familiar rule that where an indictment charges a crime, setting out the necessary allegations, and also attempting to charge another crime but does not charge it sufficiently, it will be referred to the good...