Bell v. State

103 So. 921, 20 Ala. App. 672

Opinion

RICE, J.

The defendant was indicted for the offense of embezzling money to the amount of $138; the indictment alleging that the defendant was an agent of the Mosaic Templars of America, a corporation under the laws of the state of Arkansas, and that the funds embezzled came into his possession by virtue of his employment as such agent. The evidence in the case failed to show in any manner the agency as alleged. The proof went no further than that defendant was secretary of Forman Light Lodge, No. 3717, Mosaic Templars of America, at, Choccolocco, Ala., a subordinate lodge of the Mosaic Templars of America, a corporation under the laws of the state of Arkansas, and that, as such secretary, certain amounts were paid to him by the members of the lodge or order. This, in our opinion, was insufficient to support a verdict under the indictment as laid. Neither was there the slightest proof of any shortage in the funds intrusted to the defendant as the secretary of his lodge, other than the bare admission or confession of the defendant, as given in testimony by the witnesses for the state. It has many times been held by this court and our Supreme Court that a conviction cannot stand upon testimony no stronger than that disclosed by the record here. Johnson v. State, 13 Ala. App. 193, 68 So. 687; Hill v. State, 297 Ala. 444, 93 So. 460; Calvert v. State, 165 Ala. 99, 51 So. 311; Harden v. State, 109 Ala. 50, 19 So. 494. Upon the evidence offered the defendant was entitled to receive the general affirmative charge which was duly requested in writing, and because of its refusal the case is reversed. Reversed and remanded.