Young v. State

• Decision Date: 18 December 1913
• Citation: 64 So. 171,9 Ala.App. 55
• Parties: YOUNG v. STATE.
• Court: Alabama Court of Appeals

64 So. 171

9 Ala.App. 55

YOUNG v. STATE.

Court of Appeals of Alabama

December 18, 1913

Appeal from City Court of Mobile; O.J. Semmes, Judge.

Hardaway Young was convicted of embezzlement, and he appeals. Reversed.

Webb & McAlpine, of Mobile, for appellant.

R.C Brickell, Atty. Gen., W.L. Martin, Asst. Atty. Gen., and Gregory L. & H.T. Smith, of Mobile, for the State.

PELHAM, J.

The general charge requested by the defendant was properly refused. Undoubtedly there was sufficient evidence before the court of the defendant's guilt of the crime of embezzlement, the charge against him, to require the submission of that question to the jury. In fact, we think on the evidence set out in the bill of exceptions, the court was not justified in taking from the jury at the defendant's request, the question of his guilt of having embezzled money, as the evidence was sufficient to support a finding by the jury of this charge, a charge clearly embraced in the indictment upon which he was tried. We deem it proper to say this for the guidance of the court below on another trial, in view of the fact that the case must be reversed for errors of the court committed in rulings on the admission of testimony hereinafter to be pointed out and discussed.

The check, alleged to have been the property of a Mobile hardware company, that it was contended by the state the defendant had embezzled while an officer of that company was drawn on a bank in New York, and, the existence of this institution having been questioned, and thus made an issue, the testimony of the state's witness Pugh, who was an employé of the hardware company, to the effect that the hardware company had in the due course of business received statements through the mail from this bank might have been competent for the purpose of identifying the paper as the one received as having a tendency to show the existence of the New York bank, as is contended in brief filed by state's counsel; but it was clearly error for the court to allow the witness to read from this paper to the jury the items set out in the statement, showing, among items of the account, the entries of payment by the bank, and a charging by it to the account of the hardware company of the check drawn by the defendant in the name of his principal which had been deposited to his personal account in a Mobile bank, and for which he was on trial for having embezzled from the hardware company. A witness should not be allowed to testify to entries on books or items on statements of accounts when he has no personal knowledge of their correctness, and it is error to admit such evidence against objection seasonably interposed. Davie v. Roland, 3 Ala.App. 567, 57 So 1034; Plott v. Foster, 7 Ala.App. 403, 406, 62 So 299; Standard T.M. Co. v. Matthews Sup. Co., 6 Ala.App. 188, 60 So. 481; Wagner Lumber Co. v. Sullivan Logging Co., 120 Ala. 558, 24 So. 949; Walling v. Morgan Co., 126 Ala. 326, 342, 28 So. 433; North Birmingham L. Co. v. Sims & White, 157 Ala. 595, 48 So. 84.

Although it might be conceded that the nature of the evidence was...