Touchstone v. State, 29169

• Court: United States State Supreme Court of Mississippi
• Citation: 159 Miss. 356,132 So. 339
• Docket Number: 29169
• Decision Date: 09 February 1931
• Parties: Touchstone v. State.

132 So. 339

159 Miss. 356

Touchstone
v.
State.

No. 29169

Supreme Court of Mississippi

February 9, 1931

(Division B.)

INDICTMENT AND INFORMATION. Indictment for embezzling automobile hired from rental agency, not averring place and time of redelivery, held insufficient (Code 1930, sections 893, 1182).

[159 Miss. 357]

Code 1906, section 1402 (Code 1930, section 1182), relating to venue in prosecutions for embezzlement, provides that embezzlement may be prosecuted in county in which money or property, or some part thereof, was received or converted by the accused, or in the county in which he was under obligation to pay over the funds or to deliver up the property.

HON. J. D. FATHEREE, Judge.

Hyman Touchstone was convicted of embezzling an automobile after renting same, and he appeals. Reversed and remanded.

L. J. Broadway, of Quitman, for appellant.

The court erred in overruling the demurrer to the indictment.

The demurrer of the appellant to the indictment challenges its sufficiency in law on four distinct grounds towit:

1. It does not sufficiently inform the accused of the nature and cause of the accusation against him.

2. It does not allege the act or acts of the defendant constituting the alleged embezzlement and fraudulent appropriation.

3. It consists of mere conclusions of the pleader.

4. It does not state any of the terms of the contract by which the property was to be delivered back to the prosecutor and under which the property was received; and it does not allege when the property was to be redelivered, and that thereafter the said property was embezzled and fraudulently appropriated.

Sanders v. State, 105 So. 523; 20 C. J., Topic Embezzlement, p. 475, section 69; Sections 909 and 910, Hemingway's 1927 Code.

The state failed to prove venue.

The indictment herein alleged the actual embezzlement to have taken place in Clarke county, Mississippi, and [159 Miss. 358] seems to charge that it was embezzled at the very instant it was received. It does not allege where the accused received the car, when nor where he was to redeliver it.

Section 1402, Code 1906, section 1218, Hemingway's 1927 Code provides:

"Jurisdiction of Crimes---Embezzlement. When an embezzlement is committed it may be prosecuted in the county in which the money or property, or some part thereof, was received or converted by the accused, or in the county in which he was under obligation to pay over the funds or to deliver up the property."

Smith v. State, 126 Miss. 336, 88 So. 718. W. A. Shipman, Assistant Attorney-General, for the state.

The indictment is good, either under section 1136, Code of 1906 (section 889, Code 1930), or under sections 1139 and 1140, Code of 1906 (sections 892 and 893, Code of 1930).

1. The indictment sufficiently informs the accused of the nature and cause of the accusation against him;

2. It does allege the act or acts of the accused which constitute the offense of embezzlement;

3. The language used is in the nature of direct charges and averments; not mere recitals or conclusions of the draftsmen;

4. The indictment sufficiently sets out the nature of the transaction.

Davis v. State, 108 Miss. 710, 67 So. 178; State v. Journey, 105 Miss. 516, 62 So. 354; 111 Bishop Cr. Proc. (2 Ed.), section 315; Wharton, Cr....