Willis v. State , 134 Ala. 429 ( 1901 )

TYSON, J.

The demurrer to the. indictment was correctly overruled. —§ 4659 of Crim. Code; Washington v. The State, 72 Ala. 272; Reeves v. The State, 95 Ala. 31; Walker v. State, 117 Ala. 42.

The indictment alleges that defendant, “an agent of the Southern Railway Company, a corporation under tire laws of tire State of Virginia, embezzled,” etc. At the time of thei commission of the alleged offense and at the time of the finding of the indictment, upon a trial tiren had, the burden would have been upon the State to make proof of the incorporation of the Southern Railway Company as alleged. However, before a trial was had, the general assembly passed the act, approved March 4, 1901, entitled “An act to regulate the practice us to the proof of the incorporation of corporations in the trial of criminal cases.” By this act the State is relieved of the necessity of making proof of incorporation mentioned in an indictment, complaint or information, unless the defendant before entering upon the trial denies the existence of such corporation by a sworn plea. It is contended that the provisions of this act had no application to the trial of this cause, because the offense charged in the indictment was alleged to have been! committed before its passage and that it contains no provision making it retroactive. The latter proposition may be conceded and yet if the provisions of the act effect merely the mode of procedure, it did govern as to the matter of proof of incorporation upon this trial. That such is the nature and character of the act and that the enforcement of it deprives the defendant of no substantial right will clearly appear upon the principles declared in the following cases: Perry v. The State, 87 Ala. 30; South v. The State, 86 Ala. 617; Hanover Nat. Bank v. Johnson, 90 Ala. 552; Robinson v. The State, 84 Ind. 452; People v. McDonald, 5 Wyoming, 526; Commonwealth v. Hall, 97 Mass. 570; Thompson v. Missouri, 171 U. S. 380. See also 12 Am. & Eng. Ency. Law (2d ed.), 533.

The next important question raised upon the record is, whether the prosecution could be compelled to elect to prosecute for one particular act of embezzlement. The evidence shows that the defendant was the station agent of the Railway Company, and as such had full charge and control of its business at that station; was the custodian of all money arising out of the sale of tickets, collected all freight and express charges, made disbursements, and kept the books. Furthermore, the evidence tended to show that by a system of false entries upon üie books, and other dubious practices, he endeavored to conceal his withholding, of small sums of money which came into his possession from time to time by virtue of his employment. And by a system of falsification he managed to conceal for a considerable length of time his acts of conversion of his employer’s money. The tendency of the evidence strongly supports the theory that 'the, defendant systematically instituted a continuous series of withholding of his principal’s money for the purpose of acquiring for his own use, ultimately, a large sum. Where this is the case, the doctrine of election does not apply, since the series of acts would constitute bujt one offense and each separate act would not be separate and distinct offenses. Carl v. The State, 125 Ala. 104; Brown v. The State, 18 Ohio St. 513. In the latter case cited, in response to the contention “that the evidence shows there was in fact an infinite number of separate and distinct acts of embezzlement and the jury could only properly find the amount embezzled at one time — or at most only the amount embezzled a,t four several times,. corresponding with the four counts of the indictment — whereas they, have found the aggregate amount,” the court said: “The answer is that the evidence shows 'a continuous series of conversions of the money, in pursuance of a conspiracy. Such evidence is sufficient to support a finding hy the jury of the aggregate sum, as:'the amount of a single, embezzlement. It ivas in fact and in law a single embezzlement. Were it otherwise, the particular conversions could never be ascertained or proven, and there would have to he, 'in some cases, almost as many counts in the indictment as there were dollars in the money embézzled.”

A strikingly analogous-case, to- the one in hand, involving the question now under consideration,, where the embezzlement was under a statute identical in substance with ours, was reviewed by tbe Supreme Court of Illinois. Tli-e court speaking, to this question said: “It is insisted the cwidenc'e shows a, cumulation of offenses, and for that reason if; was error in the court to deny-defendant’s motion to compel the prosecution: to elect upon what alleged act of larceny or embezzlement a conviction would be asked. The court, hy its ruling, submitted all the evidence touching the embezzlement of funds and securities by defendant, to the jury andi it is not perceived how it could properly have done otherwise. Embezzlement is a crime defined hy statute, and it was entirely competent for the legislature to, declare what acts would constitute the crime, and fix the measure of punishment. One element that enters into the statutory definition of embezzlement, is the fiduciary or confidential relation. Such relations afford the amplest opportunity to misappropriate money, funds and securities, and often present great difficulty in proving exactly when and how it was done. This is especially true with regard to clerks and confidential agents in banks, or other corporations or firms doing a, large business, and Avho are entrusted, in- Avhole or ini part, Avith -the care or custody of funds, securities and property belonging to banks or-other corporations, or to a copartnership. It is difficult,, in such cases, if at all possible, to prove with certainty when or how the embezzlement was effected. It is, of course, done with a view to avoid detection, and the .confidential relations existing ward off suspicion. Embezzlement may, and most often does, consist of many acts done in a series of years, and the fact at laist disclosed that the employer’s money and funds are embezzled is the crime against which the statute is leveled. In, such cases, should the prosecution be compelled to elect it would claim a conviction for only one of the many acts of the series that constitute the corpus delicti, it would be doubtful if a conviction could be had, [under section 4659 andl 4660 of Crim. • Code] against a clerk in a bank or other corporation, or a co-partnership, although the accused might be comleeded to be guilty of embezzling large sums of money in the aggregate. It might be otherwise [under section 4661 of Crim. Code] where distinct sums of money or articles of personal property are or may be delivered to- the accused on different occasions wide apart. Such distinct acts-might very readily be susceptible of direct proof,- for the act of delivery implies actual knowledge in some one who could be a witness. But no1 such opportunity is afforded to make direct proof as to the acts done, [under sections 4659 and 4660] defining embezzlement.. The body of the crime consists of many acts done by virtue, of the confidential relations existing between the employer amid the employe, with funds, moneys or securities over which the servant is- given care or custody, in whole or in part, by virtue of his employment. The separate acts may not be 'susceptible of direct proof, but, the aggregate result is, and that is embezzlement.” — Ker v. The People, 110 Ill. 645.

It will be noted that in the above quotation we have substituted1 references to the sections of our Criminal Code in the place of those cited in the opinion copied from. Our1 statutes being substantial copies of those referred to in the opinion, we deemed it apropos to do so, in order to give point to the language quoted.

It is clear to us that the motion to require the prosecution to elect was properly denied.

■ There was clearly no error in the admission ini evidence of the itemized statement made by witness Hooks from the books kept by defendant showing a shortage by him in his accounts of $554.45 which he had not paid to his principal, when taken in connection with the fact that he paid the $554.45 and made and retained a copy of the statement. — Lang v. The State, 97 Ala. 46.

Under the principles announced by us, it ivas entirely proper to admit the books kept by defendant covering the period he ivas employed as agent at Bock Bun-Station, in order that the- jury might; ascertain from them the aggregate amount he owed the company when he gave up his position as agent at that point.

We have examined carefully that portion of the oral charge of the court excepted to anidl find no fault with it.

Written charges refused to defendant numbered 1, 8, 21, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58 and 59 were not in accord with the view's we have declared and, therefore, properly refused:

Larceny not being charged in the indictment, charges 2, 4, 5 and 28 were improper for this reason, if for no other. '

Charges 3. and 27 assumed that -there, was evidence of good faith on the part of defendant in retaining his employer’s money. Besides they were in substance given in charge 72.

Charges 6 and 12 in the use of the word “willfully” in conjunction Avith the word “intentionally” were bad atold were calculated to mislead the jury.

Charges 10, 18 and 30 Avere doubtless intended to assert that the State .had elected to prosecute for the $306, which the evidence tends to shoAv Avas embezzled exclusive of the $554.45 paid back by defendant to the Bailway Company. They Avere impotent to accomplish this result, since the evidence as to the conversion by defendant of either of these sums was competent as showing scienter ini the prosecution for the embezzlement of the one or the other. On the evidence as presented by the record, it is impossible to determine for which of the sums converted, the State wais prosecuting for, as it was not bound! to prove the exact amount charged in the indictment. If proof was made that $25 or more was embezzled, the crime is punishable as grand larceny is punished, and of course it is of no consequence whether the $25 constituted a> paid of the $306 or the-$554.45, in the absence of some action on the part of defendant upon the- introduction of the evidence showing the conversion of otaia or the other of the sums invoking a railing of the court as to the end of limiting its effect as tending to prove only guilty knowledge.

The charges were bad independent of the considerations adverted to above.

Charges 11, 16, 19, 22, 25 and 26 were argumentative, and this is sufficient for their condemnation) without more. — Dennis v. The State, 112 Ala. 68.

Charge 13 was abstract. So was charge 14 in so far ais the question of the receipt by defendant of the money or some portion cf ill. Besides the charge was in substance and legal effect duplicated in charges- numbered 69 amid 70 given at defendant’s request. And again no burden was on the State to prove property in the money in the. Railway Company.

If by the use of the words “a well founded doubt” in charge 15, it was meant to express “a reasonable doubt!,” that charge finds duplication: in substance and legal effect in a number of given! charges. On the other hand, if the expression employed does not mean “a rear sonable doubt,” the charge was correctly refused.

Charge 17 was condemned in Amos v. The State, 123 Ala. 50.

-Charge 23 was confusing and misleading. It was not shown by the evidence with any degree of definiteness how much of defendant’s salary and commission he remitted to the Railway Company- — whether the total amount of his salary and commission remitted approximated the amount withheld by him of the company’s money is left to conjecture.

Charge 24 was substantially given in 65. Besides the charge is of doubtful propriety in tire use of the word “supposition.” — Baldwin v. The State, 111 Ala. 15; 1 Mayfield’s Dig., 170 §§ 239, 240; Bones v. The State, 117 Ala. 138.

Change 29 is confused and obscure.

Charge 7 should have been given.— Walker v. The State, 117 Ala. 42.

The- verdict rendered was not a special one, but found “the defendant guilty as charged in the indictment”— Huffman v. The State, 89 Ala. 33.

Reversed and remanded.