Opinion
No. 29169.
February 9, 1931.
INDICTMENT AND INFORMATION. Indictment for embezzling automobile hired from rental agency, not averring place and time of redelivery, held insufficient ( Code 1930, sections 893, 1182).
Code 1906, section 1402 (Code 1930, section 1182), relating to venue in prosecutions for embezzlement, provides that embezzlement may be prosecuted in county in which money or property, or some part thereof, was received or converted by the accused, or in the county in which he was under obligation to pay over the funds or to deliver up the property.
APPEAL from circuit court of Clarke county. HON. J.D. FATHEREE, Judge.
L.J. Broadway, of Quitman, for appellant.
The court erred in overruling the demurrer to the indictment.
The demurrer of the appellant to the indictment challenges its sufficiency in law on four distinct grounds to-wit:
1. It does not sufficiently inform the accused of the nature and cause of the accusation against him.
2. It does not allege the act or acts of the defendant constituting the alleged embezzlement and fraudulent appropriation.
3. It consists of mere conclusions of the pleader.
4. It does not state any of the terms of the contract by which the property was to be delivered back to the prosecutor and under which the property was received; and it does not allege when the property was to be redelivered, and that thereafter the said property was embezzled and fraudulently appropriated.
Sanders v. State, 105 So. 523; 20 C.J., Topic Embezzlement, p. 475, section 69; Sections 909 and 910, Hemingway's 1927 Code.
The state failed to prove venue.
The indictment herein alleged the actual embezzlement to have taken place in Clarke county, Mississippi, and seems to charge that it was embezzled at the very instant it was received. It does not allege where the accused received the car, when nor where he was to redeliver it.
Section 1402, Code 1906, section 1218, Hemingway's 1927 Code provides:
"Jurisdiction of Crimes — Embezzlement. When an embezzlement is committed it may be prosecuted in the county in which the money or property, or some part thereof, was received or converted by the accused, or in the county in which he was under obligation to pay over the funds or to deliver up the property."
Smith v. State, 126 Miss. 336, 88 So. 718.
W.A. Shipman, Assistant Attorney-General, for the state.
The indictment is good, either under section 1136, Code of 1906 (section 889, Code 1930), or under sections 1139 and 1140, Code of 1906 (sections 892 and 893, Code of 1930).
1. The indictment sufficiently informs the accused of the nature and cause of the accusation against him;
2. It does allege the act or acts of the accused which constitute the offense of embezzlement;
3. The language used is in the nature of direct charges and averments; not mere recitals or conclusions of the draftsmen;
4. The indictment sufficiently sets out the nature of the transaction.
Davis v. State, 108 Miss. 710, 67 So. 178; State v. Journey, 105 Miss. 516, 62 So. 354; 111 Bishop Cr. Proc. (2 Ed.), section 315; Wharton, Cr. Law, pages 1497, 1510, 1513, 1514 and 1516; 3 Bishop Cr. Proc. (2 Ed.), section 323a.
Appellant, who apparently is a young man, on Sunday, May 4, 1930, at Pachuta, in the county of Clarke, hired an automobile from the prosecuting witness, who was in the automobile rental business. The prosecuting witness and his wife testified that the statement made by appellant at the time, and the consequent understanding had, was that the car was being hired to take appellant's wife to the home of appellant's father a few miles from Vossburg in an adjoining county, and that the car would be returned within about four hours, on the same day. Appellant's testimony was that he had rented the car to take his wife to her father's home, and that this was the only statement made to the prosecuting witness, there being nothing said about going to the neighborhood of Vossburg; and nothing in respect to returning the car on that particular day or at any particular hour, but only that the car was to be used to take appellant's wife to her father's home and to return the car immediately therefrom.
The home of the father of appellant's wife was in Tulsa, Oklahoma. On the same day, appellant and his wife departed in the car and arrived at Tulsa on Tuesday night. On the following morning appellant left Tulsa with the car to return to Mississippi, and while on the way back was arrested at Dennison, Texas, at the request, apparently, of the Mississippi authorities. The car was unharmed and was in as good condition as when received by appellant. The prosecution was evidently under section 1140, Code 1906, section 893, Code 1930, and, while the testimony is perhaps sufficient to sustain a conviction under the letter of that statute, it is not at all convincing that appellant had any actual purpose or intention of committing any felonious crime, but rather was guilty of only a lesser offense. The jury must have been of this latter opinion, for in their verdict they asked the "mercy of the court for the defendant." The court, however, disregarded the appeal of the jury and sentenced appellant to what appears to us to be a harsh term of three years in penitentiary.
There was a demurrer to the indictment, which demurrer was overruled. The grounds of the demurrer, as stated, were sufficient in the terms used to raise the points hereinafter mentioned. The indictment was in the following words, omitting the formal parts:
"That Hyman Touchstone, in said county, on the ____ day of ____, A.D. 1930,
"Did unlawfully, wilfully and feloniously, embezzle and fraudulently appropriate to his own use certain personal property, to-wit: a Dodge touring car valued at three hundred dollars which car had theretofore been delivered to him by Louis Lightsey on contract by which he the said Hyman Touchstone was bound to deliver the said car back to the said Louis Lightsey, which he the said Hyman Touchstone feloniously failed and refused so to do, but he the said Hyman Touchstone then and there feloniously, fraudulently appropriated the same to his own use and carried it outside of the state of Mississippi, contrary to the form of the statute in such cases made and provided, against the peace and dignity of the state of Mississippi."
It will be at once observed that there is no averment in the indictment that the property had been delivered to appellant in Clarke county, and no averment that the property was to be redelivered in said county. Nor is there any averment of the time when it was to be redelivered. The statute, section 1402, Code 1906, section 1182, Code 1930, in relation to the venue in prosecutions of this character reads as follows: "When an embezzlement is committed it may be prosecuted in the county in which the money or property, or some part thereof, was received or converted by the accused, or in the county in which he was under obligation to pay over the funds or deliver up the property."
In Smith v. State, 126 Miss. 336, 340, 88 So. 718, it was held that, in order that an indictment may be brought within this section and may accord with the proof required to sustain the charge, it is necessary that the indictment allege the time when as well as the place where the defendant was under obligation to deliver up the property. It will be seen therefore that the indictment in this case is deficient, not only in respect to the features mentioned in the Smith case, but in others besides. So far as the indictment shows, the property may have been delivered to appellant in some other county than Clarke, and was to have been redelivered in some other county, and the time of redelivery is wholly absent in averment. The general charge of felonious embezzlement in the county is not sufficient, for this general averment was present in the Smith case. The judgment is therefore reversed, the demurrer sustained, and appellant is held on his bond to await the action of another grand jury.
Reversed and remanded.