Opinion
No. 40150.
June 11, 1956.
1. Embezzlement — evidence — sustained conviction.
Evidence sustained a conviction for embezzlement of a quantity of beer.
2. Embezzlement — of a quantity of beer — indictment — sufficient.
In prosecution for embezzlement of a quantity of beer which defendant agreed to transport to another city and exchange it for other beer and which defendant allegedly appropriated to his own use, indictment sufficiently described the contract under which the defendant obtained deliverly of the beer, sufficiently described the property and sufficiently informed defendant of the acts made unlawful by the statute and with which he was charged. Sec. 2118, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Leflore County; ARTHUR JORDAN, Judge.
Means Johnston, Porter W. Peteet, Greenwood, for appellant.
I. The Court erred in overruling in part the demurrer to the indictment, as the indictment failed to set forth the facts necessary to properly inform the defendant of the nature and cause of the accusation against him.
A. The Court erred in overruling the demurrer on the point that the description of the contract was insufficient to properly inform the defendant of the nature and cause of the accusation against him.
B. The Court erred in overruling the demurrer on the point that the description of the property appropriated was insufficient to properly inform the defendant of the nature and cause of the accusation against him.
C. The Court erred in overruling the ground of the demurrer that the indictment did not set forth sufficient facts to properly inform the defendant of the acts alleged to be unlawful and to prevent the application of the statute to any acts other than those made unlawful.
D. The Court erred in overruling the ground of the demurrer that the indictment failed to allege any crime known to the law.
Collation of authorities: Cooksey v. State, 175 Miss. 82, 166 So. 388; Love v. State, 211 Miss. 606, 52 So.2d 470; McInnis v. State, 97 Miss. 280, 52 So. 634; Rutherford v. State, 196 Miss. 321, 17 So.2d 803; State v. May, 208 Miss. 862, 45 So.2d 728; Sullivan v. State, 67 Miss. 346, 7 So. 275; Sec. 2118, Code 1942; 18 Am. Jur. 599.
II. The Court erred in admitting in rebuttal the testimony of the witness Hudspeth. The admission of Hudspeth's testimony to impeach Roberts was improper due to the lack of a proper predicate, and the Court erred in not sustaining the objection of the appellant to Hudspeth's testimony on this ground. Williams v. State, 73 Miss. 820, 19 So. 826.
III. The Court erred in admitting the rebuttal testimony of the witness Signaigo. The entire rebuttal testimony of Signaigo was incompetent, irrelevant and immaterial, and could serve no purpose other than to try to prejudice the jury against the appellant by impeaching his testimony on irrelevant matters. Such evidence cannot be admitted on rebuttal. Williams v. State, 73 Miss. 820, 19 So. 826; McElroy's Miss. Evidence, Sec. 17 p. 31.
IV. The Court erred in granting Instruction No. 1 to the State, as this instruction permits the jury to find a guilty verdict for a crime not charged in the indictment. The issue before the jury, under the indictment brought in this case, was whether the appellant was guilty of embezzlement of the beer received by him in Leflore County, Mississippi. The issue submitted to the jury, under Instruction No. 1 for the State, was whether the appellant was guilty of embezzlement of one thousand or more cases of beer received by him, regardless of the county of receipt. Waller v. State, 103 Miss. 635, 60 So. 725; 53 Am. Jur., Sec. 575 p. 454.
V. The Court erred in overruling the motion of the appellant for a new trial.
A. The Court erred in failing to grant the motion for a new trial due to the failure of the State to prove the requisite contract.
B. The Court erred in failing to grant the motion for a new trial due to the failure of the State to prove the embezzlement of the beer by the appellant.
(1) The existence of Ike Stein and the Southern Barge Line was proved by the overwhelming weight of the evidence.
(2) The confusion about Cauthen and Cauthen Trucking does not establish any guilt of the appellant.
(3) The overwhelming weight of the evidence is that Johnson drove the truck hauling the beer from Greenwood.
(4) Appellant had good reason to refer to Charlie Shephard as a witness to the existence of Ike Stein.
(5) The bills of lading for the shipment of the beer provide no evidence on which a guilty verdict can be sustained.
(6) The lack of information regarding Joe Black is no basis for sustaining a verdict of guilty.
(7) Appellant's friendly relations with Fred Miller, Jr., make reasonable the arrangements for the return of the beer to the brewery, so that a guilty verdict cannot be sustained on the evidence of this matter.
(8) The cooperative attitude of appellant throughout the investigation of this matter furnishes no peg on which to hang a guilty verdict.
John W. Price, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. Cited and discussed the following authorities: Rutherford v. State, 196 Miss. 321, 17 So.2d 803; State v. May, 208 Miss. 862, 45 So.2d 728; Williams v. State, 73 Miss. 820, 19 So. 826; Sec. 2118, Code 1942.
Appellant was indicted for embezzlement under Section 2118, Mississippi Code of 1942. The trial resulted in a verdict of guilty, and appellant was sentenced to serve a term of five years in the penitentiary.
(Hn 1) The jury found upon ample proof that appellant, a beer dealer, obtained delivery from the Lawrence Warehouse Company of a quantity of beer under a contract or agreement that he would transport the beer to the Miller Brewing Company at Milwaukee, Wisconsin, and exchange it for other beer, and that upon making the exchange of the beer obtained from the warehouse company for new beer, he would return the new beer to the Lawrence Warehouse Company at Greenwood; that appellant did not transport and deliver the beer received from Lawrence Warehouse Company as he had agreed, and did not return the beer received, and did not return to the warehouse company the new, or other beer; and that appellant appropriated the beer to his own use. Appellant received the beer under the agreement to return to Lawrence Warehouse Company the exchanged beer. His attempted explanation was that he caused the beer to be trucked to the Southern Barge Line at Memphis, Tennessee, for shipment to Miller Brewing Company, after having made arrangements with one Ike Stein, representative of the Southern Barge Line. He introduced bills of lading signed by Ike Stein and Joe Black. These bills of lading were made out on a form with the shipper's name printed thereon as Davis Motors, Inc., Memphis, Tennessee, a firm formerly operated by appellant. These bills of lading purport to show the shipment of over 9,000 cases of beer, the amount appellant received from Lawrence Warehouse Company, although appellant was indicted for embezzling only 1,000 cases.
According to his explanation, appellant did not know what became of the beer. The jury was justified in finding that there were no such persons as Joe Black and Ike Stein, and that the Southern Barge Line did not in fact exist. There is much confusion as to who trucked the beer to Memphis. There are numerous conflicts in the testimony of appellant, and the jury had good and sufficient grounds to find that appellant's whole story of the shipment of the beer to Miller Brewing Company was a fabrication. The State's proof was sufficient to show that Miller Brewing Company never agreed to exchange the old beer for new beer as appellant claimed, but appellant testified that he was a close friend of the President of the Miller Brewing Company, and that the latter agreed to allow the beer to be exchanged. The president of the brewing company, with whom appellant claimed he made the exchange arrangements, was killed in an airplane crash shortly after the alleged arrangements were made.
(Hn 2) Appellant assigns several reasons why his demurrer to the indictment should have been sustained, all going to the proposition that the indictment did not properly inform the appellant of the nature and cause of the accusation, and that it did not set forth sufficient facts to prevent the application of the statute to any other acts than those made unlawful by the statute, and that no crime known to the law was charged. We think it was a good indictment. It sufficiently described the contract under which appellant obtained delivery of the beer, and that it sufficiently informed the accused of the nature of the accusation. The description of the property was sufficient. It sufficiently informed the accused of the acts made unlawful by the statute and with which he was charged. State v. May, 208 Miss. 862, 45 So.2d 728; Hall v. State, 166 Miss. 331, 148 So. 793; State v. Ingram, 166 Miss. 543, 146 So. 638.
We find no reversible error in the admission of testimony, and the court properly instructed the jury.
A careful consideration of the entire record and the able briefs filed in behalf of appellant indicate that appellant was skillfully represented and received a fair and impartial trial. We find no error of record that would justify this Court in disturbing the verdict of the jury.
Affirmed.
McGehee, C.J., and Lee, Ethridge and Gillespie, JJ., concur.