HEAD, J.
The trial court sustained a demurrer to the second count of the indictment. The fii’st and third counts were sufficient. — Huffman v. State, 89 Ala. 38.
If all the motions made by the defendant to correct or amend the minute entry of the first trial of the cause had been sustained, the record would have still showed that the jury remained together until 12 o’clock, midnight, of the last day of the term. That fact was not denied by any of the motions, though it was expressly recited in the entry of the mistrial. The jury not having rendered a verdict, were then discharged by operation of law, and it matters not what the clerk or any one else, then-or thereafter, said to them by way of authority to them to disband. This is too obvious for discussion. So that, if the record had been made to read as the defendant desired, it would have afforded no aid to any defense he could, have made to the further prosecution of the indictment.
[51] There was interposed what was intended to be a special plea of former jeopardy. It set up the former trial, and alleged that after the jury retired to consider of their verdict, and during.a recess of the court, they were allowed to disband, in the absence of the presiding judge and of the defendant, and without the consent of the defendant. It further set up that the facts so alleged were not shown by the minutes of the court, but on the contrary the minutes state that the jury was discharged by the court, in the presence of the defendant and a mistrial was ordered, all of which was untrue. On motion .of the solicitor, this plea was stricken from the file against the objection and exception of the defendant.
.It is obvious the court had no right to strike the plea, thereby denying the right of amendment if defective merely, unless it could properly be regarded as frivolous or impertinent. The defendant insists that such was not its nature, and that the State should have been put to its demurrer.
We remark that the disclosures of the record introduced by the defendant, and which it is scarcely possible for him to ever gainsay or dispute, render the question raised upon this plea, in reality, a pure abstraction. Unless the record, as made by the defendant himself, is a perversion of the facts, it can never be a matter of real dispute, that the jury remained together considering of their verdict, unmolested by any one, until at or about 12 o’clock, midnight, of the last day of the term, when the law itself discharged them. This being true, no plea of former jeopardy, based upon their disbandment without rendering a verdict, can ever be successfully interposed to bar further prosecution. The judgment of conviction appealed from will have to be reversed for errors hereafter to be pointed out, and anticipating that the special defense of former jeopardy will not be further insisted upon, we withhold decision of the question whether or not the State should have been put to its demurrer to the plea.
The court erred in refusing to allow defendant to prove by the witness, Walls, (who represented the Singer Manufacturing Co. in making with defendant the two written contracts of employment) that when the second contract was executed he, witness, stated to defendant that the company would pay defendant’s office rent as it [52] had done theretofore, and that defendant refused to sign the second contract until he made that promise. The proceeding, of course, was not for the enforcement of the contract between the Singer Company and defendant. It was a public prosecution of a charge of embezzlement made against the defendant by the grand jury, wherein the intent of the defendant, if he appropriated the moneys of his principal, as charged, was of most vital consideration . If the appropriation was not with the intent to defraud the employer but was honestly made, to pay the office rent, in reliance upon the agent’s statement sought to be proven, as the defendant claimed to have been the case as to a part of the funds received by him, it would be manifestly unjust to deny the defendant the right to make proof of the promise of the agent as going to show his intent in making the appropriation. The rule that as between the parties to a written contract its terms cannot be added to, altered or varied by parol stipulations made at or before its execution has no application to the case. That will apply wdien the contracting parties come to litigate their rights evidenced by the contract.
The same observations apply to the refusal to permit defendant to make the like proof by his own testimony, and also to his effort to prove similar promises by the agent, Walls, in reference to payment by the company of repairs to the wagon used in the business of the agency.
It is obvious, however, that it was not proper for the. State to prove by its witness — an agent of the Singer Co. — how much commissions the defendant was entitled to receiye on collections. The written contracts regulated that, and were before the court, and there was no question of motive or intent, touching the issues involved in the prosecution, which that witness’s views of what the'allowable commissions were, would shed any light upon. It was not proposed to be shown even that when the written contracts were executed, or at any other time, there was any agreement between the parties that the commissions should be different from the stipulations of the written contracts, if such evidence should be regarded as material.
In .the fall of 1895, the agent of the Singer Co. checked up the defendant’s accounts, resulting very favorably to [53] the defendant, and made his written report to the company accordingly. When this agent was on the stand, for the State, testifying to the transactions of that period, the defendant, presenting to the witness the written report itself, asked him if he did not, after he got through checking the defendant, write the report to the company, and.the court refused to allow the proof, which refusal is a matter of exception. It does not appear that this was for the purpose of impeachment of the witness, by contradictory statements. It was not1 for that purpose. So'the only-question is, was the report admissible as res gestae? It sufficiently appears that it was the agent’s duty and officé to check up the defendant’s, accounts and make written report thereof to the company. The defendant paid to the agent the balance ascertained to be due on that accounting.
We are of opinion the report was a matter of res gestae which the defendant was entitled to show. The settlement made was as between the parties, even, prima facie correct, and the defendant ought to have the benefit of it when charged with embezzlement of funds theretofore coming to his hands.
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HEAD, J.
The trial court sustained a demurrer to the second count of the indictment. The fii’st and third counts were sufficient. — Huffman v. State, 89 Ala. 38.
If all the motions made by the defendant to correct or amend the minute entry of the first trial of the cause had been sustained, the record would have still showed that the jury remained together until 12 o’clock, midnight, of the last day of the term. That fact was not denied by any of the motions, though it was expressly recited in the entry of the mistrial. The jury not having rendered a verdict, were then discharged by operation of law, and it matters not what the clerk or any one else, then-or thereafter, said to them by way of authority to them to disband. This is too obvious for discussion. So that, if the record had been made to read as the defendant desired, it would have afforded no aid to any defense he could, have made to the further prosecution of the indictment.
[51] There was interposed what was intended to be a special plea of former jeopardy. It set up the former trial, and alleged that after the jury retired to consider of their verdict, and during.a recess of the court, they were allowed to disband, in the absence of the presiding judge and of the defendant, and without the consent of the defendant. It further set up that the facts so alleged were not shown by the minutes of the court, but on the contrary the minutes state that the jury was discharged by the court, in the presence of the defendant and a mistrial was ordered, all of which was untrue. On motion .of the solicitor, this plea was stricken from the file against the objection and exception of the defendant.
.It is obvious the court had no right to strike the plea, thereby denying the right of amendment if defective merely, unless it could properly be regarded as frivolous or impertinent. The defendant insists that such was not its nature, and that the State should have been put to its demurrer.
We remark that the disclosures of the record introduced by the defendant, and which it is scarcely possible for him to ever gainsay or dispute, render the question raised upon this plea, in reality, a pure abstraction. Unless the record, as made by the defendant himself, is a perversion of the facts, it can never be a matter of real dispute, that the jury remained together considering of their verdict, unmolested by any one, until at or about 12 o’clock, midnight, of the last day of the term, when the law itself discharged them. This being true, no plea of former jeopardy, based upon their disbandment without rendering a verdict, can ever be successfully interposed to bar further prosecution. The judgment of conviction appealed from will have to be reversed for errors hereafter to be pointed out, and anticipating that the special defense of former jeopardy will not be further insisted upon, we withhold decision of the question whether or not the State should have been put to its demurrer to the plea.
The court erred in refusing to allow defendant to prove by the witness, Walls, (who represented the Singer Manufacturing Co. in making with defendant the two written contracts of employment) that when the second contract was executed he, witness, stated to defendant that the company would pay defendant’s office rent as it [52] had done theretofore, and that defendant refused to sign the second contract until he made that promise. The proceeding, of course, was not for the enforcement of the contract between the Singer Company and defendant. It was a public prosecution of a charge of embezzlement made against the defendant by the grand jury, wherein the intent of the defendant, if he appropriated the moneys of his principal, as charged, was of most vital consideration . If the appropriation was not with the intent to defraud the employer but was honestly made, to pay the office rent, in reliance upon the agent’s statement sought to be proven, as the defendant claimed to have been the case as to a part of the funds received by him, it would be manifestly unjust to deny the defendant the right to make proof of the promise of the agent as going to show his intent in making the appropriation. The rule that as between the parties to a written contract its terms cannot be added to, altered or varied by parol stipulations made at or before its execution has no application to the case. That will apply wdien the contracting parties come to litigate their rights evidenced by the contract.
The same observations apply to the refusal to permit defendant to make the like proof by his own testimony, and also to his effort to prove similar promises by the agent, Walls, in reference to payment by the company of repairs to the wagon used in the business of the agency.
It is obvious, however, that it was not proper for the. State to prove by its witness — an agent of the Singer Co. — how much commissions the defendant was entitled to receiye on collections. The written contracts regulated that, and were before the court, and there was no question of motive or intent, touching the issues involved in the prosecution, which that witness’s views of what the'allowable commissions were, would shed any light upon. It was not proposed to be shown even that when the written contracts were executed, or at any other time, there was any agreement between the parties that the commissions should be different from the stipulations of the written contracts, if such evidence should be regarded as material.
In .the fall of 1895, the agent of the Singer Co. checked up the defendant’s accounts, resulting very favorably to [53] the defendant, and made his written report to the company accordingly. When this agent was on the stand, for the State, testifying to the transactions of that period, the defendant, presenting to the witness the written report itself, asked him if he did not, after he got through checking the defendant, write the report to the company, and.the court refused to allow the proof, which refusal is a matter of exception. It does not appear that this was for the purpose of impeachment of the witness, by contradictory statements. It was not1 for that purpose. So'the only-question is, was the report admissible as res gestae? It sufficiently appears that it was the agent’s duty and officé to check up the defendant’s, accounts and make written report thereof to the company. The defendant paid to the agent the balance ascertained to be due on that accounting.
We are of opinion the report was a matter of res gestae which the defendant was entitled to show. The settlement made was as between the parties, even, prima facie correct, and the defendant ought to have the benefit of it when charged with embezzlement of funds theretofore coming to his hands.
The ruling of the court was correct to the effect that defendant was not entitled to commissions on money not remitted to the company, or accounted for in any way that was equivalent to legal payment thereof to the company. If, however, commissions were retained by the defendant which strictly, by the contract, he was not entitled to retain, it will, yet, be for the jury to say whether or not, under all the circumstances of the case, the defendant acted with a fraudulent intent in doing so, for it must ever be borne in mind by the jury, that before the defendant can be adjudged guilty of a crime in this case, there must have been both a wrongful appropriation of money (not sewing machines or other property, but money) of the Singer Manufacturing Co’., which came into defendant’s hands, as agent of the company, and a fraudulent intent, in his mind, at the time of appropriation, to deprive the employer — the company — of the money* so appropriated, and the. evidence must be such as to satisfy the minds of the jury of the fraudulent intent, beyond a reasonable doubt; the burden of proof, in the matter, being on the State.
The court permitted the State to introduce an account [54] marked Exhibit B, which its witness Forbes, had, as agent of the Singer Company, made out against defendant, purporting to show sundry items of collections of money (thirty or more) which defendant had made as agent for the company, on sundry dates running from December, 1894, to January,. 1896, aggregating $271.05, with an opposite statement “selling and remitting commissions” amounting to $55.62. The witness testified that in the spring of 1896 he called on defendant for a settlement, and that, he and defendant, in the presence of Mr. Walls and Mr. McCumber (who were also agents of the company), went over the accounts between defendant and the company, and defendant admitted having collected and failed to pay over the amounts which are set out on said Exhibit B. He did not say, however, that Exhibit B was then in existence or that defendant ever saw it, at any time, or knew of .its existence. In fact the witness further testified that he made the 'memorandum, • B, not at the time defendant admitted the collections etc., nor while he was present, but made it from notes, at his room at the hotel, about an hour afterwards. The bill of exceptions recites that the exhibit ‘ ‘was not admitted as evidence but witness was permitted to examine it to refresh his recollection, and it might go to the jury the better to enable them to remember what witness said.”
It is seen from the above statement, that witness does not show that the memorandum was made up from notes taken by him on the examination of 'defendant’s accounts had by him with the defendant. Probably, such was the case, but it does not so appear. It could not be said, from his statement, when or from what data or evidence he made the notes from which the memorandum was made up. The notes may have been of the purest hearsay character, of the truth of which the witness had no knowledge, and possessing no binding force on the defendant. The witness did not testify to the truth of what the notes showed, nor how he knew it. Under these circumstances, we think it was .not proper to permit the witness to refer to.the memorandum to refresh his recollection.
There was no error in excluding the statement of the witness Griswold which was excluded by the court.
We now .pass upon the charges requested by defendant and refused by the court:
[55] The first invaded the province of the jury and was bad.
The second was abstract.
The third ignores all question of honesty or good faith of defendant’s claim to the commissions which he was asserting a right to, in opposition to the terms of his written contract, and that was a question for the jury-
It seems to us that the fourth asserts a ' correct legal proposition, and we think the co.urt erred in refusing it.
The fifth was held good in Hodge v. State, 97 Ala. 37. The phraseology of the charge is different from that passed on in Peagler v. State, 110 Ala. 11, andas the case in 97 Ala. was not referred to or departed from we presume it was not the intention of the court to overrule that case.
The sixth omits the word reasonable as descriptive of -hypothesis and was bad;
The seventh is or a kind that we have often condemned as argumentative. „It also invaded the province of the jury.
The eighth might have misled the jury to believe that there could be no conviction unless the full sum of $200 was embezzled.
The ninth, • tenth, eleventh and twelfth are faulty for reasons too obvious to need pointing out.
We see no objection to the thirteenth. It seems to assert the rule very many times declared correct by this court. It ought to have been given.
The fourteenth should have been given as we expressly held in Hurd, v. State, 94 Ala. 100.
The remaining were obviously faulty and properly refused.
Let the defendant remain in custody until discharged by due course of law.
Reversed and remanded.'