Wall v. State

• Decision Date: 18 May 1911
• Citation: 56 So. 57,2 Ala.App. 157
• Parties: WALL v. STATE.
• Court: Alabama Court of Appeals

56 So. 57

2 Ala.App. 157

WALL v. STATE.

Court of Appeals of Alabama

May 18, 1911

Rehearing Denied June 14, 1911.

Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.

John Wall was convicted of embezzlement, and appeals. Affirmed.

Omitting the formal charging part, the indictment is as follows: "John Wall, alias John Walls agent of Mandy Simpkins, embezzled or fraudulently converted to his own use money to about the amount of $500, which came into his possession by virtue of his agency or employment, against the peace and dignity," etc. The demurrers raise the questions discussed in the opinion. The power of attorney alluded to was from M. J Simpkins to John J. Wall, constituting him agent and attorney in fact to fully adjust and settle with the executor of the estate of J. J. Simpkins, and with the heirs and legatees of said estate, all matters pertaining to her personal property and homestead exemptions and distributive shares and dower rights in said estate, for which she agreed to pay 50 per cent. of all recovered for her; the power of attorney authorizing him to employ an attorney and to pay all his actual necessary expenses. The letter referred to in the opinion does not appear in the bill of exceptions. Witness Coxwell was shown to have been clerk of the circuit court for six years, and to have been assistant cashier of the Monroe County Bank, and to have come in contact with various handwritings of this individual all over that section of the country, and was asked to give his opinion as to the handwriting in the body of the receipt, and the handwriting as to the signature to the receipt, and was permitted to do so.

The defendant objected to the following portion of the court's oral charge: (1) "It is uncontroverted that the relationship of agency existed between the defendant and M. J. Simpkins." (2) "The chancery papers introduced in evidence are limited for a certain purpose." (3) "Conversion is any unusual, undue, or illegal deflection with intent to pervert money from its legitimate and proper channel. Did he appropriate, did he secrete, this fund, for the purpose of appropriating it to his own use, depriving this old woman of her ownership of that amount?" (4) "The question has come in here as to whether he has paid this money to this old woman. Gentlemen, I charge you this: That if the fraudulent intent was completed and existed in the mind of John Wall, and after the formation of the fraudulent intent, upon being harassed, he went and paid the money to this old woman, I charge you that the subsequent payment of the money to her and taking her receipt--and that is for you to say--does not wipe out the offense of embezzlement. If you are satisfied he converted it, I charge you that the subsequent payment does not release him from the charge of embezzlement."

The following charges were refused to the defendant: (12) "The court charges the jury that, if they believe that the defendant formed the intent to convert this money to his own use, or to the use of another person, prior to the receipt of the money, then you cannot convict the defendant under this indictment." (20) "The court charges the jury that, if you are reasonably satisfied from the evidence that the defendant formed the intent to convert the property which came into his hands by virtue of his agency or employment at the time the power of attorney was executed, and prior to the time the money or property was paid to him by the executor of the estate of J. J. Simpkins, then you cannot convict the defendant." (25) "The court charges the jury that, if they believe from the evidence that the defendant had the intent to convert the money received from the executor of the estate of J. J. Simpkins at the time he received it, they cannot convict under this indictment." (27) "The court charges the jury that, if the defendant obtained the power of attorney from Mandy Simpkins with the fraudulent intent to convert to his own use the money which he would have paid under said power of attorney, they cannot convict the defendant of embezzlement as charged in this indictment." (28) "The court charges the jury that if they believe from the evidence that the defendant, when he received the money alleged to have been converted to his own use, had the fraudulent intent then in his mind to so convert said money to his own use, he cannot convict the defendant under the indictment in this case." (13) "The court charges the jury that, if they believe that the defendant paid Mrs. Simpkins $500 prior to the finding of this indictment, then you should acquit the defendant." (18) "The court charges the jury that the evidence is without conflict that the receipt for $500 offered in evidence was in the possession of defendant's attorney prior to the finding of this indictment." (21) The general affirmative charge. (23) "The court charges the jury that the undisputed testimony in this case shows that the defendant was paid less than $100 in money by the executor of J. J. Simpkins." (24) "The court charges the jury that under the power of attorney and agreement in evidence the defendant was entitled to one-half of the amount collected by defendant from the estate of J. J. Simpkins." (26) "The court charges the jury that the question as to whether or not one-half of the amount to be collected by the defendant was fair and reasonable as a charge for the service rendered is not before you, and should not be considered by you in arriving at a verdict in this case." (29) "The court charges the jury that under the power of attorney introduced in evidence the defendant had a right to collect the checks and money testified about, and if no time is specified in said instrument when same should be paid to Mrs. Simpkins, that defendant would have a reasonable time in which to pay it to her after he collected it from the executor of J. J. Simpkins, deceased."

Barnett & Bugg, for appellant.

R. C. Brickell, Atty. Gen., for the State.

PELHAM, J.

The indictment in this case charges embezzlement, and is founded upon section 6828 of the Code of 1907, and conforms substantially to the section under which it is drawn and the form, in so far as applicable, prescribed for embezzlement (form 49, Code 1907, § 7161). The demurrers to the indictment are assigned upon the grounds that there is a failure to allege ownership of the property embezzled, or converted, and a failure to charge specifically that the defendant was acting as agent for his principal, named in the indictment at the time of the embezzlement. Since the statutes were enacted dispensing with many of the necessary averments in criminal pleading under the common-law rules, indictments are to a great extent reduced to a statement of legal conclusions rather than facts, and from such legal conclusions naturally flow the necessary inferences.

The indictment alleges the defendant's agency of a named principal, and the embezzlement, or conversion, by him of the money which came into his possession by virtue of such agency or employment. This is sufficient, and states the gist of the crime, while charging all the constituent elements of the offense, though it is the safer and better practice to specifically allege the ownership of the property embezzled, and the agency at the time of the commission of the offense, as separate and distinct averments apart from the natural and necessary inference of such ownership and agency at the time, which is drawn from the allegations of principal and agent, and possession of the property embezzled by virtue of such agency or employment. When the indictment contains the allegation (as it does in this case) that the defendant's possession of the money alleged to have been embezzled was by virtue of his agency, certainly the necessary inference must, and does, follow that he embezzled while acting in the capacity of such agent, and a conviction could only be had upon such proof; i. e., that defendant, by virtue of his agency or employment, and while so lawfully in possession or custody of such money, embezzled, or unlawfully and fraudulently converted, it to his use.

"The word 'embezzles,' used in the statute, is one having a technical meaning, and that meaning suggests the character and scope of the proof required to sustain the charge. It involves two general ingredients, or elements: First, a breach of duty or trust in respect of money, property, or effects in the party's possession, belonging to another; second, the wrongful or fraudulent appropriation thereof to his own use. There must be the actual and lawful possession or custody of the property of another by virtue of some trust, duty, agency, or employment on the part of the accused; and, while so lawfully in the possession of such property, it must be unlawfully and fraudulently converted to the use of the person so in the possession and custody thereof." Reeves v. State, 95 Ala. 31, 11 So. 158.

The separate averment of ownership of the money embezzled was unnecessary. The trial court properly overruled the demurrers to the indictment. Washington v. State, 72 Ala. 276; Lang v. State, 97 Ala. 41, 12 So. 183; Willis v. State, 134 Ala. 429, 33 So. 226.

The question asked the witness Amanda Simpkins by state's counsel, "Did your husband leave any estate of any kind in Monroe county?" was simply preliminary, leading up to the prosecutrix's ownership of the embezzled property, and was not improper to be admitted. It was only a collateral incident to the matter in issue, and the rule requiring proof by the best evidence is not applicable. Griffin v. State, 129 Ala. 93, 29 So. 783; Allen v. State, 79 Ala. 34-39.

The question of the defendant's agency was a collective fact and, the defendant being prosecutrix's...