Wall v. State , 2 Ala. App. 157 ( 1911 )

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 averment's in criminal pleading under the common-law rules, indictments áre 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 Ms agency, certainly the necessary inference must, and does, folloAV 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 frudulentappropriation 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 South. 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 South. 183; Willis v. State, 134 Ala. 429, 33 South. 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, 19 Ala. 93, 29 South. 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 agent, it was a matter peculiarly within her knowledge and was properly admitted. The court excluded the witness’ statement as to her “understanding” with reference to the collections of money by defendant-. The collection of money, which, if retained, tended to prove defendant guilty of the offense, was material evidence, and the witness could properly testify to any collections of which she had knowledge, irrespective of how it might or could otherwise be proven, and her “understanding” with reference to it was properly excluded, leaving only competent evidence before the jury.

Whether or not the witness Amanda Simpkins was living “separate and apart” from her husband was entirely irrelevant to the issues, and the solicitor’s objection to such a question' seeking to elicit such testimony was correctly sustained. The prosecutrix’s husband may, or may not, have left a will devising substantially all of his property; it was not the proper subject of inquiry in the case at bar.

The motion of the defendant, upon cross-examination of the witness Darby, to exclude part of his testimony given on direct examination as to the payment to defendant, as contradictory to his cross-examination, was properly overruled. It was for the jury to weigh and consider his statements, even if they were in conflict, and determine which they would believe. Besides, if the property embezzled, as testified to by the witness on direct examination, did not correspond in part with the allegations in the indictment, it was not error to allow testimony of other embezzlements of different property by defendant, if the property was similarly received in the line of his agency, as going to show the act was knowingly and intentionally done.—Stanley v. State, 88 Ala. 154, 7 South. 273; Reeves v. State, 95 Ala. 31-43, 11 South. 158; Lang v. State, 97 Ala. 41, 12 South. 183.

The testimony of the witness Gilmore, giving the names of the parties who wrote certain letters and some •statements of their contents, was collateral, and not •subject to the defendant’s objection. The letters were •afterwards admitted in evidence, and no injury resulted to defendant from the statement of the witness.

The testimony of the witness Beatrice Lee, objected to by the defendant, was excluded by the court. If the defendant deemed the testimony excluded prejudicial, he should have requested special instruction from the court to the jury not to consider it. The court exercised Its full authority in excluding the testimony upon the motion of the defendant, and there is nothing further -upon which to predicate the objection and exception.

It was entirely relevant, and- not a violation of the rule against the. best evidence, to prove by the witness Jones “how much” the amount of money was he (witness) came to settle with the defendant. Defendant had allowed the witness to state, without objection, that he had an agreement with Mrs. Simpkins to collect the money from the defendant, Wall, and Jones a.t the time was representing Mrs. Simpkins as an attorney seeking a settlement with the defendant of the very matter and moneys in question, all of which was known to the defendant at the time.

After the witness had been asked by defendant’s counsel about filing a bill in the chancery court, it was permissible for the state to ask the witness what the chancery suit was for, and if it was a matter of record. The questions were only preliminary, for the purpose of identifying the suit and papers, as appears from the record, by the solicitor immediately following up the questions by an introduction of the papers.

The witness Jones was allowed to testify without objection by the defendant, as a witness for the state, on direct examination: “I came back and prepared the bill and filed it in chancery court.” And on cross-examination the witness was asked by defendant’s counsel: “You say you filed a bill in the chancery court for Mrs. Simpkins?” to which the witness answered: “I did.” (It malees no difference that defendant’s counsel attempted to withdraw the question after it was answered. )

The state then offered in evidence the original chancery proceedings in the case; the defendant objected, but the court overruled the objection and admitted-them in evidence, and the defendant duly excepted. The original bill was limited, “to show fraudulent intent” when admitted by the court, and was also likewise limjted by the court in the oral charge to the jury. In cases involving proof of fraudulent conversion, great latitude is allowed in the evidence, in order to establish the crime, the very nature of which malíes it rarely susceptible in all its necessary phases of direct or positive proof. It is not, however, permissible to introduce in evidence civil judgments or decrees rendered against the defendant, even though they involve the same matters on the trial of a criminal prosecution, for the obvious reason that the judgment or decree in the civil action may have been rendered on a state of facts totally irrelevant in the criminal case, and on a different-rate of the measure of proof. It is quite probable, also, that the defendant might be civilly, but not criminally, liable, nor is there a mutuality of parties. The proceedings are totally different, and such judgments and decrees are not admissible as a general proposition. —Britton v. State, 77 Ala. 202.

It is a well-settled, rule in the trial of criminal cases that where the defendant has elicited part of a conversation, or transaction, on cross-examination, the state is entitled to have the whole conversation or transaction go to the jury.—Simmons v. State, 145 Ala. 61, 40 South. 660. And, where part of a conversion is brought oiit by the state, the defendant is entitled to have the Avliole conversation, or all said in that connection put before the jury.—Drake v. State, 110 Ala. 9, 20 South. 450.

In the case of Williams v. State, 103 Ala. 33, 15 South. 662, it was held that the state had the right to bring out the facts and circumstances Avhich caused a shooting-at the time the defendant was under arrest for a different offiense, after the defendant, on cross-examination of a witness, had called out the fact of the shooting.

It is the established rule of evidence in this state that When part of a conversation, or part of a transaction, is put in evidence, the opposing party may call for the Whole conversation or transaction.—Gibson v. State, 91 Ala. 64, 9 South. 171; 1 Brick. Dig. § 1217.

Applying this principle to the case before us, it would seem that the trial court did not commit an error in admitting the proceedings in the chancery case, since the defendant had made them admissible by examining the witness Jones in reference to' them, and getting before the jury the fact of a bill having been filed in the chancery court for Mrs. Simpkins, in relation to the matters in controversy involved in the case on trial. The door to this transaction having been thrown open, the state was then entitled to have the entire proceedings put before the jury.

The question asked the witness McCorvey by defendant’s counsel on cross-examination, to state directly or positively if the power of attorney vas in the handwriting of a Mr. Hare, was immaterial to the issue, and an objection was properly sustained to it. The witness had stated the handwriting “looked like” Hare’s.

The objection to the question, “According to your best judgment, didn’t you receive a letter from Mr. Wall, this defendant here, notifying or advising you, as register in chancery, that he had had a settlement with Mrs. Simpkins?” asked the witness McCorvey, was properly sustained. The answer to the question could only have brought out self-serving, illegal evidence. The admission of such evidence would have been to allow the defendant, through secondary evidence, to make testimony for himself.

There was evidence tending to prove the defendant’s guilt of the crime charged, introduced in behalf of the state, and the court properly overruled the defendant’s motion to exclude the evidence. It was not necessary to sustain a conviction that the state should prove that the full amount of money charged in the indictment was embezzled; proof of a part of the funds alleged is sufficient.—Walker v. State, 117 Ala. 42, 23 South. 149.

The question, “What did she want you to do?” propounded to defendant by his counsel, gave no intimation what the answer would be, and the court correctly excluded the answer on motion of the solicitor, without the question being objected to, when the answer proved to he irrelevant to the issue before the court.

The power of attorney offered in evidence by the defendant was irrelevant and not legal evidence for any purpose under the issues of the case, and there was no error in excluding it.

The letter written by the defendant and offered by him in evidence was self-serving and properly excluded on motion of the solicitor. There was no error in the exclusion of defendant’s statement, marked “Exhibit AA,” in regard to expenses incurred by him, as it was entirely irrelevant.

The question-, on cross-examination by the solicitor of the defendant, seeking to ascertain when defendant actually took charge of the business of Mrs. Simpkins, under the power of attorney, was proper for the purpose of fixing a time that was material, and was correctly admitted, as were the other questions of the defendant on cross-examination. None of them exceeded the limitations of legitimate, legal cross-examination of the defendant by state’s counsel.

The cross-examination of the defendant’s witness Ingram about his interest in the land, and the defendant’s being an important witness for him,' was proper for the purpose of showing the interest or. bias of the wit-" ness. ' ■ '"

It is not clear from anything in the record what letter is referred to by the witness Bugg. Its contents are not shown, nor is there anything by which it may be identified or shown to be in any way relevant. The trial court cannot be put in error under such circumstances for excluding it.

The witness. Coxwell was sufficiently qualified- as an expert, and the admission of his testimony upon handwriting was without error.—Glover v. Gentry & Moore, 104 Ala. 222-231, 16 South. 38; Tally et al. v. Cross, 124 Ala. 567, 26 South. 912.

The court’s action in permitting the witness Mims to testify after having been in the courtroom during the progress of the trial, when the witnesses were under the rule, was not an abuse of the judicial discretion, under the facts set out in the record. It is not shown by the record that an exception was reserved to this witness testifying as an expert, on the ground that he had not qualified as such, and defendant’s insistence to that effect in his brief cannot be considered.

That part of the argument of the assistant solicitor to which the defendant objected and reserved an exception was qualified and predicated expressly upon the statement, ‘‘if his testimony in this case is true,” and was not made as a statement of fact. The statement of the assistant solicitor in his argument to the jury, as set out in the record, being limited to and conditioned upon the jury’s belief in the truth of the evidence, does not transgress the limits of legitimate discussion and falls within the rule which prescribes what shall constitute fair argument.—Cross v. State, 68 Ala. 476; Childress v. State, 86 Ala. 77, 5 South. 775.

A careful consideration of all the exceptions reserved by the defendant to the oral charge of the court fails to disclose a reversible error. The evidence was not in conflict as to defendant’s agency. The defendant admitted it, and testified with respect to it at some length. The chancery papers being properly in evidence, any limitation' made by the court to the jury to consider them only as to the question of fraud was not injurious to, and could not be complained of by, defendant. The question of conversion under the evidence was properly submitted to the jury. Certainly there was evidence in the case, as shown by the record, from which the jury could find that there was a conversion by the defendant of the moneys of Mrs. Simpkins. There' was no error in that part of the court’s oral charge, under the evidence in this case, that the subsequent payment of the money did “not wipe out the offense of embezzlement,” if the jury believed the crime had been committed and was complete prior to the payment.

Defendant’s counsel in their brief replying to the brief of the Attorney General only insist upon the correctness of charges numbered 12, 20, 25, 27, and 28 requested separately in writing by defendant, and refused by the court. These charges seem to have been asked upon the theory that an agent cannot be guilty of embezzlement of his principal’s property if he has the secret, un communicated intent to convert it before he receives it, or before it comes into his custody or keeping. Such is not the law. While it is true that, if one receives money with the fraudulent intent at the time of converting it to his own use, he may be, and probably is, guilty of a larceny, it is also the law that, if before or at the time of receiving the money the intent had been secretly formed to convert it by the party receiving it, he may nevertheless be guilty df embezzlement, if he afterwards unlawfully converts it to his own use. Having received the money as a duly authorized agent, the act of receiving is a lawful one, and his uncommunicated intentions, formed before or at the time, to convert it would not entitle defendant in this case to an acquittal of the charge of embezzlement, if he lawfully received the money as an agent, and then unlawfully converted it. If the defendant, while in the lawful possession of the money as agent, the care and custody of it being intrusted to him, fraudulently converts such money to his own use, he would be guilty of embezzlement within the mean ingot the statute, notwithstanding the fact that he may have had a secret uncommunicated intention of converting the money before he received it. From this statement of the law, it will be seen that there was no error in refusing charges 12, 20, 25, 27, and 28. Also the charges were abstract. There was no evidence of such prior intent upon Avhich they could be predicated.

Charge 13 was properly refused. The defendant could not malee himself guiltless by repaying the money.

Charges 18, 23, 24, 26, and 29 were erroneous in singling out parts of the evidence and giving undue prominence to such parts, and had a tendency to mislead the jury.

The evidence being in conflict and the main ingredients constituting the offense having been proved by evidence tending to show the defendant’s guilt, there was no error in refusing the general charge (No. 21) for the defendant.

We have carefully considered all the exceptions contained in the record, and find no reversible error.

Affirmed.