Henderson v. State

129 Ala. 104

Opinion

SHARPE, J.

The crime of embezzlement may embrace continuous taking and extend to several jurisdictions, but to sustain -a conviction therefor, some act of fraudulent conversion or appropriation must be proved to have occurred in the jurisdiction where the prosecution is begun. — 1 Wlrart. Or. Law, § 1057.

The defendant was given money by the prosecutor in Pike county for the purpose of buying a ticket in Bullock county for a workman he was to bring from there back to Pike county on the following Thursday. He neither brought the workman nor returned the money. Whether he went to Bullock county immediately does not appear, but it was shown that he was in that county later than the Thursday mentioned and in the same month and that he remained there until his arrest. There is an absence of evidence to show that any conversion or appropriation of the money occurred in Pike county. A mere failure to return money entrusted to an agent without evidence of a fraudulent appropriation or disposition is not sufficient to constitute the crime. — 2 Bish. New Grim. Law, § 376. Under the evidence appearing in the record the charge requested by the defendant should have been given.

The court’s charge to the jury that “it was the defendant’s duty to account to the State of Alabama for the 75 cts.” might well have been construed by the jury as an intimation of the defendant’s guilt. This was an erroneous invasion of the jury’s province.

Let the judgment be reversed and the cause remanded. The defendant will be held until legally discharged.