Carr v. State , 104 Ala. 43 ( 1893 )

McCLELLAN, J.

The defendant had no immunity or right of exemption from prosecution, trial and conviction in this case by reason of the fact that he had been surrendered by the State of Iowa on a requisition from this State for another and different offense for which he has not been tried, and upon an indictment for which he was still being held, and the district court did not err in holding his plea setting up such immunity or exemption bad, and proceeding with the trial of this cause. — Carr v. State, ante, p. 4, and authorities there cited.

The juror Neff should not have been put upon the defendant, his connection as the party alleged to have been defrauded and as a witness in another case against this defendant, each case resting, as each does, on the fraud of the defendant in conducting a banking business at Tuscumbia, the fraud in each having been committed about the same time, if at all, and Neff’s admission that he had “made up his mind” that defendant was guilty in the other case could not have failed to have impressed a disqualifying bias on his mind in this case, and taken from him the attribute of impartiality which the constitution secures to defendants. The court erred in disallowing defendant’s challenge for cause of this juror ; and also, of course, in disallowing his peremptory challenge of the juror Stout, on the idea that defendant had been properly put to the exhaustion of his peremptory challenges counting that laid against Neff as one of them.— Carr v. State; ante, p. 4, and authorities there cited.

The indictment contains three counts. The first count count charges that Hinton E. Carr, an agent of Maria E. Bice, embezzled or fraudulently converted to his own use money to about the amount of $1,600.90 which Came into his possession by virtue of his employment as such agent by said Maria E. Rice, the money being laid as the property of Maria E. Rice. The second count differs from the first only in describing the property as “banknotes” instead of “money.” And the third count charges that Hinton E. Carr, a private banker doing business as such, embezzled or fraudulently converted to his own use money to the amount of $1,600.90, the property of Mrs. Maria E. Rice which was deposited with said Carr by said Maria E. Rice as a special deposit. The evidence showed that Carr was a member of a partnership composed of himself and his wife, which did a private banking business under the name and style of the Tuscumbia Banking Company, the defendant being the manager of this business, and the dealings of Mrs.- Rice were with this partnership under that name and style. Many objections to evidence offered by the State were interposed, and many refusals of the court to give instructions for the defense were excepted to by the defendant, on the theory that there ivas a fatal variance between the averments of the indictment and the evidence adduced in respect of the agency, alleged in the first and second counts, and the identity of the “private banker,” alleged in the third count to have received Mrs. Rice’s funds on special deposit with the Tuscumbia Banking Company, which, according to the evidence, did receive this deposit, if any such deposit was made. There is no merit in this position. Hinton E. Carr was no less the agent, if agent at all, of Mrs. Rice by reason of the fact that not he alone was such agent but both he and his wife, as members of the partnership, were such agents; and his civil and criminal liability for the conversion of Mrs. Rice’s money was precisely the same in either event. So in respect of the alleged special deposit: He was a private banker, and the deposit was made with him to all legal intents and purposes, although the business was carried on and the deposit was received by him and another constituting a partnership. Moreover, it is wholly immaterial whether the conversion was made by him to his own individual use, excluding the use of his co-partner, or to the use of the firm of which he was a member; in either case the conversion was to his benefit, and “to his own use” as averred in the indictment.

The fact as testified to by Sampson, the assignee, that when he took possession of the assets of the bank he re-.ceived no money belonging to Mrs. Rice, was clearly not illegal or irrelevant as evidence under the third count, and these are the only grounds of the objection made to it. If he had found Mrs. Rice’s money on special deposit in the bank, there could have been no conversion, and hence could be no conviction. And the fact that no such deposit was there, tended directly to show a conversion on the assumption that she had made a special deposit.

We find no error in the general charge of the court, or the charges given at the instance of the State.

Chai-ge 8 refused to the defendant should have been given. It was not abstract. The evidence for the defendant tended to show that neither he nor the Tuscumbia Banking Company ever had possession of any money belonging to Mrs. Rice. The defendant himself testified that Mrs. Rice gave him a check drawn by an insurance association in her favor, payable in Philadelphia, for collection; that he sent the check to his correspondent bank in New York city for that purpose; that said bank collected the check and entered the proceeds up to the credit of the Tuscumbia Banking Company on its books as a general deposit made by the latter company; and that such proceeds were checked out by the Tuscumbia Banking Company in the usual course of business, no part thereof ever coming into the hands of the defendant or his firm. If the jury believed this evidence, they could not have found the defendant guilty. Under it all he ever received from Mrs. Rice was the check for $5,000, and not money or bank notes, as alleged in the first and second counts of the indictment, to the amount of $1,600.90 ; and under it, there was no special deposit by Mrs. Rice of $1,600.90, or any other sum with the defendant or with the Tuscumbia Banking Company. It may be that conceding the truth of this evidence, the defendant would still be guilty of embezzling the check, but that charge is not made in this case. And whether this evidence be true or false was, of course, a question for the jury, and the defendant had a clear right to have it submitted to them as he sought to do by charge 8. Its refusal was error.

There was also evidence upon' which it was open to the jury to conclude that, notwithstanding the passbook given Mrs. Rice by Carr described her deposit as a special deposit, and notwithstanding also that Carr furnished her with a form of a filled out check to be used in drawing on this fund whereon he wrote the words, “special deposit,” the deposit was nevertheless a general one, and was called and written down a special deposit only for the purpose of keeping it safe from the creditors of Mrs. Rice’s deceased husband, and not to the end that the bank should safely keep the particular money as hers, for her and return it to her. If this was true, or if the jury had a reasonable doubt, because of this evidence, whether the deposit was special or not, the defendant should not have been convicted, since a general deposit is not alleged in the indictment, and confessedly, if it had been, no criminal responsibility attached to the use of money so deposited by the defendant or the bank, it being the money of the bank, on account of which the relation of debtor and creditor only could exist between the parties. Charge 17 asserts this proposition and should have been given unless its refusal may be justified for that it may be supposed to refer a legal question to the jury.

Each count of the complaint charges the defendant with having received, in one form or another, money from Mrs. Rice. On one aspect of the evidence, he received only a check from her directly or indirectly. Obviously a check is not money, and obviously also unless he did receive money of hers, the jury should have acquitted him. Charge 20 asked by the defendant asserts this, and should have been given. Upon the samé considerations, charges • 22 and 23, having reference to the first and second counts of the indictment, respectively, should have been given.

Each of the other charges requested by the defendant was properly refused.

The judgment of the district court is reversed and the cause remanded.

Reversed and remanded.