Opinion
4 Div. 311.
November 23, 1937.
Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
Reece Mauldin was convicted of embezzlement, and he appeals.
Reversed and remanded.
J. E. Acker, of Ozark, and Speight Tiller, of Dothan, for appellant.
In order to convict defendant of the statutory offense of embezzlement, it is essential that the State establish that defendant was the clerk, agent, servant, or apprentice of a private person; that the pigs came into his possession by virtue of his employment; and that he embezzled or fraudulently converted them to his own use or fraudulently secreted them with intent to convert them to his own use. Pullam v. State, 78 Ala. 31, 56 Am.Rep. 21; Wall v. State, 2 Ala. App. 157, 56 So. 57; Reeves v. State, 95 Ala. 31, 11 So. 158; Gleason v. State, 6 Ala. App. 49, 60 So. 518; Code 1923, § 3960. A verdict finding defendant guilty of one offense under an indictment for a different offense cannot stand. Weems v. State, 24 Ala. App. 590, 139 So. 571; Arthur v. State, 19 Ala. App. 311, 97 So. 158; Campbell v. State, 22 Ala. App. 493, 117 So. 396.
A. A. Carmichael, Atty. Gen., and Effie Crittenden, Asst. Atty. Gen., for the State.
It is apparent that the solicitor moved to nol pros. the embezzlement count and that the trial judge erroneously marked the larceny count nol prossed. The trial having proceeded as upon the larceny count and the indictment having contained a count for larceny, if there was error, it was without injury. The error as to the number of the count was obvious and self-correcting. There was no count 1, said first count being unnumbered, and hence no count 1 to be nol prossed. As there was no evidence as to embezzlement, the verdict of guilty was referable to the larceny count. Huckabaa v. State, 19 Ala. App. 11, 95 So. 587; Id., 209 Ala. 4, 95 So. 42; Webb v. State, 138 Ala. 53, 34 So. 1011; Chappell v. State, 19 Ala. App. 648, 100 So. 75; Pruett v. State, 141 Ala. 69, 37 So. 343; Arden v. State, 6 Ala. App. 64, 60 So. 538; Norman v. State, 13 Ala. App. 337, 69 So. 362; Haney v. State, 19 Ala. App. 79, 95 So. 57, 59; Corrunker v. State, 19 Ala. App. 500, 98 So. 363, 364.
The indictment was in two counts. The first count, although not numbered, charged the defendant with larceny of eleven hogs. Count 2 charged the defendant in statutory form with the embezzlement of eleven hogs.
On the trial in the circuit court the judgment entry recites: "This cause being called by the court comes the Solicitor, Hon. Geo. W. Andrews, Jr., who prosecutes for the State of Alabama, also comes the defendant in his own proper person, attended by his counsel. The Solicitor moves the court for a nol pros of Count one in this indictment and upon consideration of said motion it is hereby granted. It is therefore considered and adjudged by the Court that Count one of the said indictment is hereby nol prossed."
This entirely eliminated from consideration the charge of larceny. Walker v. State, 61 Ala. 30.
The trial then proceeded with the only charge against the defendant being the embezzlement of eleven hogs.
In order to convict the defendant of the statutory offense of embezzlement, it is essential and necessary that the State establish, by the evidence, without which there can be no conviction, the following facts: That the defendant was the clerk, agent, servant, or apprentice of the owner of the hogs; that the hogs came into his possession by virtue of his employment; and that he embezzled or fraudulently converted them to his own use, or to the use of another, or fraudulently secreted them with the intent to convert them to his own use. Pullam v. State, 78 Ala. 31, 56 Am.Rep. 21; Wall v. State, 2 Ala. App. 157, 56 So. 57; Reeves v. State, 95 Ala. 31, 11 So. 158; Section 3960, Code 1923.
There nowhere appears in the testimony any evidence tending to show any agency on the part of the defendant, or that he received the hogs described in the indictment, as the agent of the owner. Indeed it is conceded by the Attorney General, in his brief, that there is no such evidence. That being the case, we have the anomalous situation of a defendant being convicted of a crime charged against him without any evidence to sustain it.
It is insisted by the Attorney General that this court should apply rule 45, and hold that a defendant might be charged with one offense and convicted of another. We have applied rule 45 rather liberally in the past, but, as yet, it has never been applied in a case of this kind.
Section 6 of the Constitution provides that, in all criminal prosecutions, the accused has a right to demand the nature and cause of the accusation against him, and he is only required to meet the charge laid against him in the indictment, and is not called upon to defend himself against a separate and distinct charge not included in the indictment. Gassenheimer v. State, 52 Ala. 313; Windham v. State, 20 Ala. App. 16, 100 So. 457.
To permit this conviction to stand on the record as it appears before us would be to deny this defendant the right of due process of law, guaranteed to him by the Constitution of the United States (Amendment 14) and by the Constitution of this State (section 6).
While it is suspected, de hors the record, that the trial judge and the solicitor did not intend a nol pros of the first count of the indictment, there is nothing in this record to sustain such suspicion.
This court has consistently held to the principles hereinabove announced. Weems v. State, 24 Ala. App. 590, 139 So. 571; Arthur v. State, 19 Ala. App. 311, 97 So. 158; Campbell v. State, 22 Ala. App. 493, 117 So. 396.
For the error above pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.