The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-07-16
HEAD NOTES OF THE DECISIONS
OF THE ALABAMA SUPREME COURT


owner ship OF said firppsrtys and because
il fails ID charge thatsthe money alleged
to rave been enb4zzied was the property
OF said railway company.
O. same: trt.n and its incidents: proof
OF Incorporation; construction Of act re-
lating thereto.-Thc act ito regulate the
practice as to the proof OF the incorpora-
ton Ct corporations In the trial Of GRIM
inal cases" relieving the State OF the
necessity Of making proof Of incorpora-
ton mentioned in the Indictment. unless
the defendant deAies the existence Of
such corporation by sworn pleas Affect
ing merely the mode Of procedure. Is APP
plicable to the trial Of criminal case.
although the offense charged In the In
dictment was alleged to have been COM
mitted and the indictment itself was
preferred before its passage. the trial Of
the case being had subsequent thereto.
8. Same; when election by state not
necessary.--On a trial under an indict-
ment. which charges that the defendant.
an agent of railroad company, embes-
zled or frandulently converted to his own
use money which, scame into his poeses-
sion by virtue Of his employment az such
agent. the evidence shows that the de-
PENDANT was q station agent Of said rail-
way company, and as such had full
charge and control Of its business at that
STATEN. ana was the custodian OF all
money arising from the sale OF tickets,
collected all freight and express charges.
made all the disbursements at said sta
tior and kept the books. The evidence
further tended tosshow that by thesstate-
ment of false entries Upon the books and
other practices, the defendant endeavor
| ed to conceal his withholding OF small
amounts OF money which came into his
| possession from time to time by virtue
OF his employment. and by such system
I CT Justification he had concealed for q
| considerable length of time his acts of
| conversion Of the railroads money, and
| that he systematically instituted q con-
| tinuors series Of withhoadings Of the
railrc ads money! for the purpose Of ul-
| umately acquiring for his own use o
large sum. Held: That the many acts
/ Of conversion by the defendant In such
case constituted the corpus deficit Of
| the cffense charged. and there was not
presented case where the State should
| be required TO electsfor which singl act
| Of conversion II would proceed to sprose-
cute.
Z. Sine; admissibiIity OF evidence. --On
| a trial under an Indictment charging the
| defendant, as the agent of b railroad cor
4 poration. With embezzlement. the item
| lied statement made by the railroad
| compsny's auditor, from the books kept
by the defendant. showing the defendant
short In his accounts. when taken In
connection with the fact that the de-
1 PENDANT paid the amount shown as short.
and retained a copy OF such statement. Is
| admissible In evidence.
4 s. Same; same.-In such case. the books
kept by the defendant covering the period
/ he was employed as agent Of said rail-
| road company, are admissible In evidence.
g Embexzler1ent. charge to the jury
On a trial under an indictment which
charges the defendant. an agent Of a
railroad company. with embezzlement. q
charge is free from error which instructs
the jury that they may take the books
Of the defendant together with the ex-
psrse bills and consider them In connec-
ton with all the evidence. and that II the
books thus considered show beyond q
reasonable doubt a shortage and that the
defendant knew 1t was as to money coll
lected by him as agent of the Southern
Railway Company. and that said money
belonged to said railway company, and
that eaid defendant had knowingly with
held said money and knowingly failed TO
| account for 1t. then this would be cir
cunstance tending to show criminal i'm
tent" o,
7. Same; ssme.--In such 4 case, 1t IL
error for the court in its general charge
| to instruct the jury that III the Jury
was satisfied from the evidence beyond a
reasonable doubt that in the county OF
Cherokee and within three years before
the finding Of this indictment against the
defendant there was a shortage OF more
than SIS Of money collected by the de-
PENDANT for the Southern Railway Com
pany, that at the time of said collection
| the defendant was the agent of said rail-
l way company and that said money was
the property of said railway company
and that the defendant knew II at the
| time Of the collection, and that the de-
ferdant collected said money by virtue
OF his employment as said agent and that
the dependant had fraudulently convert
ed II to his own use that then they must
And the defendant guilty as charged in
| the indictment"
s. Same: charge as to larceny properly
| refuse lon a tiial under An indictment
for embezzlement. charges which predi-
cate the defendants aeuulttaI upon the
jury believing from the evidence that
the defendant was guilty OF larceny, are
erroneous and properly refused.
0. Same: charge as to good faith.--On
| a trial under an indictment for embezzle.
ment. where there was no evidence tend
ing to show good faith on the part OF the
defendant in retaining the money of his
| employer. charged which instruct the
jury that It was their duty 70 consider
the evidence of the. good faith OF the de-
PENDANT in so obtaining the money of his
| employer, are erroneous and properly re-
| frsed
10. Same; charge to the jury.-on a
trial under an Indictment for embezzle-
ment, charges which instruct the jury
that they must believe from the evidence
beyond a reasonable doubt that the de-
PENDANT embezzled the amount OF money
charged In the Indictment. or some part
thereof. and he did It willingly and in
tentionally and converted it TO his own
use," are erroneous In the use OF the
word willfully In conjunction with the
word intentional. and are properly re-
fused.
H. Same; same.-on a trial under an
indictment for embezzlement. where the
evidence shows that the embezzlement
was composed of continuous acts of
wrongful conversion Of his employer 8
money and property by the defendant.
aggregating a large sum. and that the
defendant had paid back TO his employer
the amount as shown by the statement
OF. his shortage rendered to him, but the
evidence further tended to show that in
ADDITION to this amount the defendant
was short in his accounts to his employ
er in another large sum. charges which
instruct the jury that they can not con-
Wet the defendant even IL they believe
Z the evidence that he was guilty of en-
bezzlement Of the amount which he had
paid back to his employer, are erroneous
and properly refused.
Il. Same: charge as to doubt.--On a
trial in a criminal case. a.charBe which
fnstructs the jury that II there is gen.
| nrotod a., the minds of the fury nv the