Summary
In Gradsky v. State, 243 Miss. 379, 137 So.2d 820 (1962), this Court held that in criminal prosecutions the accused may call his attorney as a witness where the attorney has evidence vital to the defense.
Summary of this case from West v. StateOpinion
No. 42093.
February 12, 1962.
1. Witnesses — competency — attorney connected with case.
Constitutional guarantee that accused may compel attendance of witnesses means that he may summon his attorney as well as other witness to give evidence in his favor, and accused cannot be denied right on ground that it might embarrass attorney or violate etiquette of court. Sec. 26, Constitution 1890.
2. Criminal law — witnesses — attorney offering to testify for clients — exclusion of evidence — prejudicial error.
Refusal to permit accused's attorney, who had vital evidence in favor of defendant, to testify as witness was reversible error. Sec. 26, Constitution 1890.
3. Embezzlement — conversion an essential element.
Conversion is essential element of embezzlement.
4. Embezzlement — criminal intent — acts in execution of — burden of proof.
State had burden of proving that property, allegedly embezzled by defendant, rightly came into possession of accused by virtue of his office as president of corporation and that he feloniously converted corporate property described in indictment to his own use.
5. Embezzlement — terms "embezzlement" and "wrongful appropriation" defined.
"Embezzlement" itself is practically synonymous with "wrongful appropriation," and is defined as fraudulent appropriation of property of another.
6. Embezzlement — offense — sufficiency of evidence.
Evidence was insufficient to show that corporate president embezzled corporate property.
7. Embezzlement — circumstantial evidence — proof must exclude every reasonable hypothesis but that of guilty.
Intent to convert may always be proven by circumstantial evidence if it is sufficient to prove wilful and unlawful conversion; but to sustain verdict of guilty based on circumstantial evidence, testimony must exclude every reasonable hypothesis but that of guilt.
Headnotes as approved by Rodgers, J.
APPEAL from the Circuit Court of Hinds County; LEON F. HENDRICK, J.
Gore Gore, Barnett, Montgomery, McClintock Cunningham, Jackson, for appellant.
I. The trial court erred in overruling the motion for a peremptory instruction at the close of the State's evidence. Bell v. State, 110 Miss. 430, 70 So. 456; Jackson v. State, 211 Miss. 828, 52 So.2d 914; Voss v. State, 208 Miss. 303, 44 So.2d 402; 29 C.J.S., Sec. 4 p. 672.
II. The trial court committed reversible error in refusing the peremptory instruction to find the defendant not guilty at the close of all of the evidence. Yancey v. State, 202 Miss. 662, 33 So.2d 151.
III. The trial court erred in sustaining the motion of the State to the testimony of attorney Rufus Creekmore and excluding such testimony from the jury. Powell v. State, 224 Ala. 540, 141 So. 201, 84 A.L.R. 527, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55; Stokes v. State, 240 Miss. 453, 128 So.2d 341; Wilson v. Peacock, 111 Miss. 116, 71 So. 296.
IV. The verdict of the jury was against the overwhelming weight of the evidence and the trial court erred in failing to sustain the defendant's motion for a new trial based on said ground. Ashford v. State (Miss.), 6 So.2d 471; Carter v. State, 106 Miss. 507, 64 So. 215; Hazlehurst, City of v. Byrd, 101 Miss. 57, 57 So. 360; Heflin v. State (Miss.), 178 So. 594; Herron v. State (Miss.), 38 So.2d 720; Jackson v. State, supra; Jobe v. State, 104 Miss. 860, 61 So. 82; Page v. State, 160 Miss. 300, 133 So. 216; Scott v. State, 108 Miss. 464, 66 So. 973; Stubbs v. State, 206 Miss. 485, 40 So.2d 256; Turner v. State, 165 Miss. 452, 151 So. 721; White v. City of Philadelphia, 197 Miss. 166, 19 So.2d 493; 29 C.J.S., Sec. 4 p. 672.
V. The trial court erred in admitting evidence of the actions of the codefendant, Howard Meadors, done out of the presence of the appellant, without having first required the State to establish by extrinsic evidence a conspiracy or common design between Meadors and the appellant to commit the crime charged. Browning v. State, 30 Miss. 656, 1 Mor. St. Cas. 860; Bruce v. State, 138 Miss. 382, 103 So. 133; Garrard v. State, 50 Miss. 147; Harper v. State, 83 Miss. 402, 35 So. 572; Jones v. State, 189 Miss. 533, 198 So. 555; Rich v. State, 124 Miss. 272, 86 So. 770; Street v. State, 43 Miss. 1, 2 Mor. St. Cas. 1591.
VI. The trial court erred in overruling the motion of the appellant for a mistrial made when the district attorney, in his argument to the jury, commented on the failure of the appellant to offer the codefendant, Meadors, as a witness on his behalf. Brown v. State, 98 Miss. 786, 54 So. 305; Evans v. State, 61 Miss. 157; Reddick v. State, 72 Miss. 1008, 16 So. 490.
VII. The trial court erred in granting the instruction for the State which appears at page 454 of the record which does not use the word "feloniously" convert the property. Dedeaux v. State, 125 Miss. 326, 87 So. 664.
VIII. The trial court erred in refusing to grant a mistrial upon the motion being made after certain remarks made by the district attorney that an attorney for the appellant had been disbarred.
IX. The trial court erred in allowing the introduction of the two writs of injunction issued by the Chancery Court of Hinds County, Mississippi. Adams v. Sigman, 89 Miss. 844, 43 So. 877; Green v. State (Ind.), 184 N.E. 183.
X. The proof is entirely devoid of any evidence showing, or tending to show, violation of the substantive laws under such circumstances as to warrant a conviction for embezzlement, or of such a nature as to indicate an intent to violate any law.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The evidence is sufficient to support the verdict of the jury. Barcus v. State, 49 Miss. 17, 19 Am. Rep. 1; Bell v. State, 110 Miss. 430, 70 So. 456; Cobb v. State, 235 Miss. 57, 108 So.2d 719; Davis v. State, 228 Miss. 441, 87 So.2d 900; Evans v. State, 159 Miss. 561, 132 So. 563; Hall v. State, 128 Miss. 641, 91 So. 397; Heard v. State, 177 Miss. 661, 171 So. 775; Ivey v. State, 206 Miss. 734, 40 So.2d 609; May v. State, 239 Miss. 308, 127 So.2d 423; Sherman v. State, 234 Miss. 775, 108 So.2d 205; Woodward v. State, 180 Miss. 571, 177 So. 531; Sec. 2115, Code 1942; 18 Am. Jur., Embezzlement, Secs. 2, 22; 16 C.J. 81.
II. The trial court did not err in sustaining the motion of the State to the testimony of attorney Rufus Creekmore and excluding such testimony from the jury. Adams v. State, 202 Miss. 68, 30 So.2d 593; 70 C.J. 183.
III. The trial court did not err in admitting evidence of the actions of codefendant Howard Meadors done out of the presence of the appellant, without having first required the State to establish by extrinsic evidence a conspiracy or common design between Meadors and the appellant to commit the crime charged. Phillips v. State, 239 Miss. 399, 123 So.2d 449; Shedd v. State, 228 Miss. 381, 87 So.2d 898; Wallace v. State, 203 Miss. 504, 35 So.2d 703.
IV. The trial court did not err in overruling the motion of the appellant for a mistrial made when the district attorney, in his argument to the jury, commented on the failure of the appellant to offer the codefendant, Meadors, as a witness on his behalf. Brown v. State, 98 Miss. 786, 54 So. 305; Brown v. State, 200 Miss. 881, 27 So.2d 838; Herrin v. State, 201 Miss. 595, 29 So.2d 452; Page v. State, 208 Miss. 347, 44 So.2d 459.
V. The trial court did not err in granting instruction for the State which appears at page 454 of the record. Craft v. State, 214 Miss. 752, 59 So.2d 343; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Hemingway v. State, 68 Miss. 371; Steele v. State, 213 Miss. 739, 57 So.2d 574.
VI. The trial court did not err in refusing to grant a mistrial upon the motion made after certain remarks by the district attorney that an attorney for the appellant had been disbarred.
VII. The trial court did not err in allowing the introduction of two writs of injunction issued by the Chancery Court of Hinds County, Mississippi. Starkie on Evidence (8th ed.), Sec. 322.
The appellant Norman Gradsky was indicted, convicted and sentenced to a term in the State Penitentiary upon a charge of having embezzled a deepfreeze from Insured Savings Loan Association, Inc. After a careful examination of the record we have come to the conclusion that this case must be reversed for the following reasons:
(Hn 1) First. Sec. 26, Miss. Constitution 1890, guarantees that "In all criminal prosecutions the accused shall have a right * * * to have compulsory process for obtaining witnesses in his favor * * *", and this means, he may have his attorney, as well as other witnesses, summoned to give evidence in his favor, when his attorney has evidence vital to his defense. Moreover, accused cannot be denied this right on the ground that it may embarrass the attorney or violate etiquette of the court. Adams v. State, 202 Miss. 68, 30 So.2d 593, is not adverse to the holding in this case. We have pointed out in the case of Brooks v. State, 209 Miss. 150, 46 So.2d 94, that "Constitutional rights in serious criminal cases rise above mere rules of procedure." The court may admonish an attorney when it appears that he knew in advance that he would be called upon to testify in a case, for taking active part in the trial of a case, but the court cannot refuse an accused the right to introduce competent evidence in his favor because it may appear that an attorney has violated an ethical rule. Miller v. Urban, 195 A. 193, 118 A.L.R. 951-954; 58 Am. Jur. 110, Witnesses, Sec. 152.
(Hn 2) The refusal to permit defendant the right to introduce his attorney as a witness when he had vital evidence in favor of the defendant was reversible error.
(Hn 3) Second. Conversion is one of the essential elements under the charge of embezzlement laid in the indictment in this case. Bell v. State, 110 Miss. 430, 70 So. 456. (Hn 4) The State had the burden of proving that the property rightfully came into the possession of the defendant Norman Gradsky by virtue of his office as president of the corporation and that thereafter he feloniously converted the property described in the indictment to his own use. Moore v. State, 49 So.2d 415 (Miss.); Jackson v. State, 214 Miss. 828, 52 So.2d 914; 29 C.J.S., Embezzlement, Sec. 11, p. 682; 18 Am. Jur., Embezzlement, Sec. 21, p. 581. (Hn 5) The word "embezzlement" itself is practically synonymous with "wrongful appropriation" and is defined as the fradulent appropriation of the property of another. Burdick's Law of Crime, Vol. 2, Sec. 584, p. 390.
(Hn 6) In order to constitute the crime of embezzlement, something must have been done in execution of the fraudulent intention to misappropriate the property in accussed's possession to his own use. 18 Am. Jur., Embezzlement, Sec. 25, p. 585. We find that there is insufficient evidence to show that Norman Gradsky did any act or acts sufficient to indicate that he intended to wrongfully convert the deepfreeze to his own use after it came into his possession as President of the Insured Savings and Loan Association, Inc. (Hn 7) The intent to convert may always be proven by circumstantial evidence if it is sufficient to prove a willful and unlawful conversion. Underhill, Criminal Evidence, 4th Ed., p. 1007. See also Roan v. City of Hattiesburg, 112 Miss. 269, 72 So. 1005. In order, however, to sustain a verdict of "guilty", based upon circumstantial evidence, the testimony must exclude every reasonable hypothesis but that of guilt. Pickle v. State, 151 Miss. 549, 118 So. 625; Hulett v. Hulett, 152 Miss. 476, 119 So. 581.
We have examined the testimony in this case, and we find that it is insufficient to establish the charge laid in the indictment.
The judgment and sentence of appellant is set aside, the case reversed, and the appellant discharged.
Reversed and appellant discharged.
Lee, P.J., and Gillespie, McElroy and Jones, JJ., concur.