Walker v. State

• Decision Date: 11 February 1898
• Citation: 117 Ala. 42,23 So. 149
• Parties: WALKER v. STATE.
• Court: Alabama Supreme Court

23 So. 149

117 Ala. 42

WALKER v. STATE.

Supreme Court of Alabama

February 11, 1898

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

R. M Walker was convicted of embezzlement, and appeals. Reversed.

The indictment under which the appellant was tried and convicted was as follows: (1) "The grand jury of said county charge that before the finding of this indictment Robert M Walker, alias Bob Walker, who was at the time the agent of the Singer Manufacturing Company, an incorporated company incorporated under the laws of the state of New Jersey embezzled or fraudulently converted to his own use money to about the amount of two hundred and ten dollars, which came into his possession by virtue of his employment as such agent of said the Singer Manufacturing Company, an incorporated company." (2) "And the grand jury of said county further charge that Robert M. Walker, alias Bob Walker, an agent or a bailee of the Singer Manufacturing Company, an incorporated company, embezzled or fraudulently converted to his own use money to about the amount of two hundred and ten dollars, which came into his possession by virtue of his employment as such agent or bailee of the owner of said money, said the Singer Manufacturing Company, an incorporated company." (3) "And the grand jury of said county further charge that Robert M. Walker, alias Bob Walker, being the agent of the Singer Manufacturing Company, an incorporated company incorporated under the laws of the state of New Jersey, did embezzle or fraudulently convert to his own use money to about the amount of two hundred and ten dollars, the personal property of the Singer Manufacturing Company, an incorporated company, as aforesaid, which said money had come into the possession of the said Robert M Walker, alias Bob Walker, by virtue of his employment as such agent,-against the peace and dignity of the state of Alabama." Each of the counts of this indictment was demurred to upon the following grounds: (1) It fails to aver or describe the character or kind of money alleged to have been converted or embezzled by the defendant. (2) Because each of said counts fails to aver or sufficiently describe the act or acts incorporating said sewing-machine company, or that said act is still in force and effect, or was in force and effect at the time said offense is alleged to have been committed. (3) That each of the counts of the complaint fails to charge any certain or specific amount embezzled by the defendant. The court sustained the demurrer as to the second and overruled it as to the first and third, counts. The indictment was returned into court on March 19, 1896. At the fall term, 1896, of the circuit court of Cullman county, there was a mistrial of the defendant; and the minute entry in said cause at that term of the court, after setting out the fact of the joinder of issue on the plea of not guilty, and the submission of the cause to the jury, then recites: "And while said jury were considering said cause, the time fixed by law for the adjournment of this court having arrived, and the said jury having not agreed by twelve o'clock on Saturday night, the 3d day of October, 1896, the day fixed by law for adjournment of this court, and defendant being in open court, it is ordered by the court that the said jury is hereby discharged, and a mistrial be entered, and this cause be continued." There were several motions made by the defendant to correct this minute entry, setting out the fact that such entry was erroneous and void, in that the judge of the court was not present, and the defendant was not present at the time of the discharge of the jury. These motions were all overruled.

On the trial of the cause there was introduced a contract which was made between the Singer Manufacturing Company and the defendant, in which the defendant was appointed an agent of the said Singer Manufacturing Company, and was authorized to transact the business of said company within a designated territory. The evidence for the state tended to show that during the existence of his agency under said contract the defendant had obtained money belonging to the Singer Manufacturing Company for which he had not accounted, and which he had not turned over to the said company, but had appropriated to his own use. The evidence for the defendant tended to show that he had not misappropriated any of the funds belonging to said company, and that, if the credits were allowed him for old machines and other items which the contract provided for, he would not be indebted to the said company in any amount. His evidence further tended to show that the defendant, while he did not recognize his liability, offered to pay to the agent of the Singer Manufacturing Company the amount which its agent said was due if said agent would give him a receipt for the payment in full. The evidence for the state was in conflict with this testimony for the defendant. Upon the introduction of one E. E. Griswold, as a witness for the defendant, he testified that he was present at a conversation which was had between the defendant and Mr. Forbes, the agent of the Singer Manufacturing Company, and heard the defendant say to Mr. Forbes that he did not owe the said company anything if they would give him credit for the old machines and his commissions; and that he heard the defendant further say that, if they would give him a receipt, he would pay the amount claimed to be due. This witness further testified that in October, 1895, he had a conversation with Mr. Walls, who was agent for the Singer Manufacturing Company, in which he asked him whether or not the defendant was short in his account, stating to said Walls that he (the witness) was surety on the defendant's bond; that said Walls told him that the defendant was not in any trouble with the said company; and further said that "some people have prejudices against Mr. Walker, but he's all right, and I would advise you not to come off his bond. We have such a perfect system of checking that it is impossible for him, anyway, to get more than one machine ahead of the company." On motion of the state, the testimony of this witness which is quoted was excluded from the jury. To this action of the court the defendant duly excepted. The other rulings of the court are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give, among others, the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The jury are instructed that, if there is any one single fact proved to the satisfaction of the jury by a preponderance of evidence which is inconsistent with the guilt of the defendant, this is sufficient to raise a reasonable doubt, and, if the jury entertains such a doubt, they should acquit the defendant." (2) "The court charges the jury that the defendant cannot be convicted for the fact, if it be a fact, that Mr. Walls embezzled or failed to turn over some of the money." (3) "The court charges the jury if they believe that if the defendant were given due credit for his commissions and the old machines he did not owe the company anything, the jury must find the defendant not guilty." (4) "The court charges the jury that, if the evidence is not so convincing as to lead the minds of the jury to the conclusion that he is guilty, they must find him not guilty." (5) "The court charges the jury that a reasonable doubt is a doubt for which a reason can be given." (6) "The court instructs the jury that they must find the defendant not not guilty, unless the evidence against him should be such as to exclude to a moral certainty every hypothesis but that of his guilt of the offense imputed to him." (7) "The court charges the jury that they can take in consideration the fact, if it be a fact, and from the evidence such is a fact, that the defendant tendered the Singer Manufacturing Company, or agents, the amount or greater dues than he owed them, together with all the other evidence, in determining whether or not there was a criminal intent in the defendant's actions." (8) "The court charges the jury that they must believe from the evidence beyond a reasonable doubt that the defendant embezzled the amount of money charged in the indictment, and he does it willfully and intentionally, and converted it to his own use." (9) "The court charges the jury that if they believe from the evidence that Mr. Walker, the defendant in this case, offered to pay the Singer Manufacturing Company, or agent, and they refused to accept and that was all due them, then they will find the defendant not guilty." (10) "The court charges the jury that they may look to the conduct of the witness on the stand, and his manner of testifying, to determine what credit they shall give him." (11) "The court charges the jury that if they can explain the testimony in this case on any hypothesis with the defendant's innocence they must acquit him." (12) "The court charges the jury that they must believe the evidence conclusively as presented by the state before they can find the defendant guilty." (13) "Before the jury are authorized to convict the defendant in this case, they must believe from the evidence to a moral certainty that he is guilty of the things charged in the indictment, and, unless the jury are so satisfied from the evidence, they should acquit the defendant." (14) "The court charges the jury, if the jury, upon considering all of the testimony, have a reasonable doubt about the defendant's guilt, arising out of any part of the evidence, they should find the defendant not guilty." (15) "The court charges the jury, if they...