State v. May

• Decision Date: 10 April 1950
• Docket Number: No. 37556,37556
• Parties: STATE v. MAY.
• Court: Mississippi Supreme Court

Page 728

45 So.2d 728

208 Miss. 862

STATE v. MAY.

No. 37556.

Supreme Court of Mississippi, in Banc.

April 10, 1950.

Geo. H. Ethridge, Acting Attorney General, Jackson, for appellant.

Nothing filed by appellee.

SMITH, Justice.

This is an appeal by the State from an order of the Circuit Court of Lee County, sustaining defendant's demurrer to an indictment for embezzlement. The defendant was ordered held under his same bond pending 'possible action of another Grand Jury.'

The State appealed under authority of subsection (1), Section 1153, Code 1942, which reads as follows: 'From a judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit charging crime; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense.'

Only a question of law is presented by this appeal by the State of Mississippi, and the only assignment of error is that 'The Circuit Court of Lee County erred in sustaining the demurrer to the indictment.' We have held that such appeal may be taken only on a question of law. State v. Wall, 98 Miss. 521, 54 So. 5; City of Gulfport v. Stratakos, 90 Miss. 489, 43 So. 812, 13 Ann.Cas. 855.

The indictment is in this language: 'The Grand Jurors of the State of Mississippi, elected, summoned, impaneled, sworn and charged to inquire in and for the body of Lee County, State of Mississippi, at the term aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present that J. May late of the county aforesaid on the 17th day of November, A. D., 1948 with force and arms in the county aforesaid and within the jurisdiction of this court being then and there, by virtue of an oral contract of employment, the salesman and agent of one Walker Francis, did then and there, by virtue of said contract of employment as salesman and agent, have in and under his care and possession of the property of the said Walker Francis, one 1947 Model Chevrolet two door coach automobile, which said automobile, under the terms of said contract the said J. May was to sell for not less than $2175 and to immediately deliver the said sum of money received in payment, to the said Walker Francis, and did afterwards, then and there, sell said automobile, under the terms of said contract, for $2175 and did, then and there, receive into and under his care and possession the aforesaid money, and did afterwards, then and there, without the consent of the said Walker Francis, feloniously embezzle the said money in the amount of and of the value of $2175, the property of Walker Francis, and did fraudulently and feloniously convert the same to his own use contrary to the Statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.'

The demurrer contains twelve grounds of attack upon the foregoing, indictment, only three of which, however, have been deemed worthy of discussion by this Court. They are the first ground, 'That the indictment alleges the offense occurred November 17, 1948, whereas that was the date of the returning of the indictment.' Also, the sixth ground, 'That the indictment does not allege the date of the alleged sale of the 1947 model Chevrolet by the defendant.' And the seventh ground, 'That the indictment does not allege the name of the person to whom the 1947 model Chevrolet was alleged to have been sold.'

There is some difficulty in determining under what particular statute the indictment was returned, whether under Section 2115, Code 1942, covering embezzlement by agents, bailees, et cetera, of property generally, or Section 2118, Code 1942, dealing with embezzlement of property held in trust or received on contract. However, since the indictment charges that the defendant 'by virtue of an oral contract of employment, * * * did then and there, by virtue of said contract as salesman and agent, have in and under his care and possession of the property of the said Walker Francis, * * * under the terms of said contract the said J. May was to sell for not less than $2175 and to immediately deliver the said sum of money received in payment, to the said Walker Francis, and did afterwards, then and there, sell said automobile, under the terms of said contract, for $2175 and did, then and there, receive into and under his care and possession the aforesaid money, and did afterwards, then and there, * * * feloniously embezzle the said money * * *,' we have concluded that the indictment was returned under Section 2118, Code 1942. The defendant was charged with embezzling the proceeds of the sale. The latter statute makes an act embezzlement if any person fraudulently appropriate personal property or money which has been delivered to him, '* * * on...