McGilvary v. State , 17 Ala. App. 588 ( 1920 )

The offense charged in the indictment is strictly statutory, and to constitute it there must be the concurrence of three several facts. As applied to the facts of this case, there must be proof: (1) That the defendant stood to the owner in the relation of bailee, or agent; (2) the pistol alleged to have been embezzled must have been deposited with defendant; and (3) the pistol so deposited must have been embezzled, or fraudulently converted to the use of defendant, or fraudulently secreted by him with the intent to convert it to his own use. Watson v. State, 70 Ala. 13, 45 Am. Rep. 70. The word "embezzle" in the statute has a technical meaning which suggests the character and scope of the proof required and involves two general elements; a breach of duty or trust in respect to the pre-party and a wrongful or fraudulent appropriation thereof. Wall v. State, 2 Ala. App. 157,56 So. 57.

The evidence for the state tended to establish these facts, and therefore the general affirmative charge as requested by the defendant was properly refused.

There was no error in the refusal of the court to allow the witness Butts to testify that sometimes boys around the shop put pistols in their pants and belts and walk around with them, there being no evidence that at such times these boys ever had access to this pistol or had ever handled it in any way. The fact that one Price carried an Iver-Johnson pistol to the shop where defendant worked was immaterial and irrelevant testimony, and the fact that the Iver-Johnson pistol was sold by Smith, who occupied a part of the shop and had possession of the Iver-Johnson pistol, could have no bearing on the question of whether defendant had embezzled a Smith Wesson, blue steel, 38-caliber pistol, the property of Fenn. Being immaterial, it was not admissible for the purpose of impeaching the testimony of the witness Bryan.

The court in its several rulings on the admissibility of testimony confined the inquiry well within the issues as herein defined, and the rulings were without error.

We find no error in the record, and the judgment is affirmed.

Affirmed.