Opinion
No. 36273.
December 9, 1946. Suggestion of Error Overruled January 13, 1947.
1. CRIMINAL LAW.
Where guilt is to be based upon circumstantial evidence, the proof thereof must exclude every other reasonable hypothesis consistent with innocence.
2. EMBEZZLEMENT.
The fact that accused was chief clerk in License Tag Division of State Motor Vehicle Commission when duplicates of temporary permits were not entered of record and cash equivalent to payments therefor was not accounted for did not, in absence of proof that accused got such money, warrant conviction of failing to pay over to Motor Vehicle Commissioner public money coming into accused's possession by virtue of public employment.
3. EMBEZZLEMENT.
Chief clerk in License Tag Division of State Motor Vehicle Commission could not be held criminally responsible for failure to change system already in force of making and handling collections whereby any one of several employees could appropriate money collected for permits and evade detection for considerable length of time by preventing duplicates of permits from being entered of record, in absence of statute prescribing duties of chief clerk or proof of rules or regulations or of what duties were assigned to him (Code 1942, secs. 9376, 9377, 9380).
4. EMBEZZLEMENT.
Circumstantial evidence did not warrant conviction of chief clerk in License Tag Division of State Motor Vehicle Commission for failure to pay over to Motor Vehicle Commissioner public money which allegedly came into clerk's possession by virtue of his public employment, where evidence showed that several other employees had equal opportunity to remove money not accounted for from receptacle in which money collected for permits was placed before such collections were counted and entered upon the books.
APPEAL from the circuit court of Hinds county. HON. H.B. GILLESPIE, J.
W.E. Gore, Creekmore Creekmore, J.G. Burkett, and Will S. Wells, all of Jackson, for appellant.
The lower court should have granted defendant's motion to exclude the evidence offered by the State and to direct a verdict of not guilty for the defendant; and should have granted the peremptory instruction requested by the defendant at the conclusion of all the testimony.
Moore v. State, 188 Miss. 546, 195 So. 695; Algheri v. State, 25 Miss. 584; Williams v. State, 95 Miss. 671, 49 So. 513; Byrd v. City of Hazlehurst, 101 Miss. 57, 57 So. 360; Simmons v. State, 106 Miss. 732, 64 So. 721; Hogan v. State, 127 Miss. 407, 90 So. 99; Nalls v. State, 128 Miss. 277, 90 So. 892; Sorrells v. State, 130 Miss. 300, 94 So. 209; Pickle v. State, 151 Miss. 549, 118 So. 625; Melson v. State, 152 Miss. 597, 120 So. 570; Harris v. State, 153 Miss. 1, 120 So. 206; State v. Russell, 98 Miss. 64, 53 So. 954; Clark v. State, 109 Miss. 737, 69 So. 497; Roan v. City of Hattiesburg, 112 Miss. 269, 72 So. 1005; Williams v. State (Miss.), 17 So.2d 213; Johnson v. State (Miss.), 198 So. 554.
There is a fatal variance between the indictment and the proof as to the ownership of the money.
Thompson v. Kruetzer, 112 Miss. 165, 72 So. 891; Adams v. Natchez, J. C.R. Co., 76 Miss. 714, 25 So. 667; Dick v. State, 30 Miss. 631; Polkinghorne v. State (Miss.), 7 So. 347; McDowell v. State, 68 Miss. 348, 8 So. 508; Hampton v. State, 99 Miss. 176, 54 So. 722; State v. Yeates, 140 Miss. 224, 105 So. 498; Code of 1942, Secs. 9365, 9373; Laws of 1938, Ch. 144; 42 Am. Jur. 189, 217 229; 20 C.J. 780, 790; 29 C.J.S. 711, 727.
Instruction number one is erroneous in not charging that the money must come into the hands of the defendant by virtue of his employment.
Code of 1942, Sec. 2120.
Instruction number two is erroneous in that it peremptorily charged the jury that the defendant was in charge of the license tag department, and charged with the duty of collecting public money coming into said department.
Dean v. State, 85 Miss. 40, 37 So. 501; Boutwell v. State, 165 Miss. 16, 143 So. 479; De Silva v. State, 93 Miss. 635, 47 So. 464; Barber v. State, 125 Miss. 138, 87 So. 485; Cunningham v. State, 87 Miss. 417, 39 So. 531; Ellerbe v. State, 79 Miss. 10, 30 So. 57; King v. State (Miss.), 23 So. 766; Newton v. State (Miss.), 12 So. 560; Stringer v. State (Miss.), 38 So. 97; Woodward v. State, 164 Miss. 468, 144 So. 895; Brown v. State, 72 Miss. 997, 17 So. 278; Walton v. State, 87 Miss. 296, 39 So. 689; Fore v. State, 75 Miss. 727, 23 So. 710; Marble v. State, 195 Miss. 386, 15 So.2d 693; McCrory v. State (Miss.), 25 So. 671; Code of 1942, Secs. 9376, 9381.
Instruction number two is erroneous in that it shifts the burden of proof to the defendant.
Hemingway v. State, 68 Miss. 371, 8 So. 317; Herman v. State, 75 Miss. 340, 22 So. 873; Hampton v. State, 99 Miss. 176, 54 So. 722; Hawthorne v. State, 58 Miss. 778; Smith v. State, 58 Miss. 867; Brandon v. State, 75 Miss. 904, 23 So. 517; Blalock v. State, 79 Miss. 517, 31 So. 105; Raines v. State, 81 Miss. 489, 33 So. 19; Cumberland v. State, 110 Miss. 521, 70 So. 695; Page v. State, 160 Miss. 300, 133 So. 216; Bihn v. United States, 90 L.Ed. 1208; Code of 1880, Sec. 2790; Code of 1942, Sec. 9380.
Instruction number two was further erroneous in that it told the jury that if more than $25 was collected by the defendant from Folse Drayage Company, Inc., and not accounted for, then the jury should convict, there being no evidence to support a finding that money was collected from Folse Drayage Company, Inc., and not accounted for.
Pickens v. State, 143 Miss. 243, 108 So. 731.
Instruction number three for the State is erroneous as it is in vague, uncertain and confusing language.
Jones v. State, 130 Miss. 703, 94 So. 851; Cothran v. State, 39 Miss. 541.
It was error to refuse instruction number three for the defendant, and thereby the jury was prohibited from considering the explanation made by the defendant, which under instruction number two for the State he was required to make.
Barry v. State, 187 Miss. 221, 192 So. 841; Bihn v. United States, supra.
The penalty imposed was erroneous.
Greaves v. Hinds County, 166 Miss. 89, 145 So. 900; Grillis v. State, 196 Miss. 576, 17 So.2d 525; Code of 1942, Secs. 9365, 9367, 9373, 9392; Code of 1942, Ch. 4, Title 37; Laws of 1938, Ch. 144.
Greek L. Rice, Attorney General, by George H. Ethridge, Assistant Attorney General, and W.D. Conn, Jr., special counsel, for appellee.
Either an unlawful conversion to his own use of the funds intrusted to defendant or a failure to turn over such funds to the person lawfully entitled thereto constitutes the crime, regardless of any intent to cheat and defraud.
Sanders v. State, 141 Miss. 289, 105 So. 523; Hemingway v. State, 68 Miss. 371, 8 So. 317; McInnis v. State, 97 Miss. 280, 52 So. 634.
If there be any substantial, reasonable testimony, and conceding that testimony to be true, which sustains the case of a party litigant, a peremptory instruction should not be granted against that party.
Justice v. State, 170 Miss. 96, 154 So. 265.
Evidence which tends to prove guilt will be considered by the court most favorably to the State in determining the propriety of the refusal of the trial court to direct a verdict of not guilty, and, also, in determining whether to reverse upon the ground of insufficiency of evidence to sustain the verdict.
Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 47, 139 So. 861; Boutwell v. State, 165 Miss. 16, 143 So. 479.
Murphree was not entitled to his motion to exclude or to his requested peremptory instruction.
Simmons v. State, 165 Miss. 732, 141 So. 288, 290; Richberger v. State, 90 Miss. 806, 44 So. 772.
Whether there was a variance, which we say was not present in the case at bar, or not, the defendant has not been misled or deceived by the charge, and a variance, if present, is harmless and does not authorize an acquittal of this appellant.
Bowers v. State, 145 Miss. 832, 111 So. 301; Roney v. State, 153 Miss. 290, 120 So. 445; Sanders v. State, supra; Code of 1942, Sec. 9373.
A trial court cannot utter all the law of a case in one breath.
Temple v. State, 165 Miss. 798, 145 So. 749.
The instructions given in a case are to be considered as one instruction, — they are to be read into each other; omissions in an instruction on one side may be supplied by an instruction on the other side; and if, when so construed, they embody the governing principles of law, there is no error; in order to constitute reversible error, the instructions must be so conflicting as to be irreconcilable, and for that reason insufficient to furnish a correct guide for the jury.
Tillman v. State, 164 Miss. 100, 144 So. 234; Bailey v. State, 174 Miss. 453, 165 So. 122; Williams v. State, 160 Miss. 485, 135 So. 210; Joslin v. State, 75 Miss. 838, 23 So. 515.
See Boutwell v. State, supra; Dean v. State, 85 Miss. 40, 37 So. 501.
And see Hemingway v. State, supra; Smith v. State, 58 Miss. 867; Richberger v. State, supra.
See also Floyd v. State, 166 Miss. 15, 148 So. 226; Powers v. State, 168 Miss. 541, 151 So. 730; Davis v. State, 170 Miss. 78, 154 So. 304; Eddleman v. State (Miss.), 155 So. 420; Smith v. State, 103 Miss. 356, 60 So. 330; Jones v. State, 130 Miss. 703, 94 So. 851; Harris v. State, 135 Miss. 171, 99 So. 754.
Compare Hampton v. State, 99 Miss. 176, 54 So. 722; McInnis v. State, supra; Sanders v. State, supra; Barry v. State, 187 Miss. 221, 192 So. 841.
Murphree was indicted under Section 2120, Code of 1942, which provides a sentence on conviction thereunder up to twenty years in the state penitentiary. The motor vehicle laws do not deal with embezzlements, forgeries, false pretenses, larcenies, assaults and batteries, mayhems, arsons or other crimes which may incidentally be committed in connection with the enforcement of the motor vehicle laws. The sentence of three years imposed in this case was within the permissible range, and it should not be disturbed.
This Court is committed to the proposition that before it will disturb the judgment of a trial court, two things must appear: (1) that error has been committed, and (2) that such error was prejudicial.
Goins v State, 155 Miss. 662, 124 So. 785; Comings v. State, 163 Miss. 442, 142 So. 19.
And, likewise, where the defendant's own testimony supports the conviction, the court is less likely to disturb the trial court's judgment.
Sloan v. State, 158 Miss. 138, 130 So. 110.
See also Weatherford v. State, 164 Miss. 888, 143 So. 853; Brown v. State, 142 Miss. 104, 107 So. 381; Brown v. State (Miss.), 159 So. 568; Hill v. State, 64 Miss. 431, 1 So. 494; Donahue v. State, 142 Miss. 20, 107 So. 15; King v. State, 185 Miss. 433, 188 So. 554.
The trial court was extremely liberal with defendant in dealing with his requested instructions. At least some of them were improperly given him. Particularly, see instruction number two, which authorized the jury to acquit on proof of good character, a doctrine which is not the law in this State.
Anderson v. State, 97 Miss. 658, 53 So. 393; Calloway v. State, 155 Miss. 706, 125 So. 109; Shelton v. State, 156 Miss. 612, 126 So. 390; Dewberry v. State, 168 Miss. 366, 151 So. 479; Harris v. State, supra; Williams v. State, 185 Miss. 449, 188 So. 316.
And see instruction number seven for defendant which undertakes to define a reasonable doubt, a thing this Court has said cannot be done.
Boutwell v. State, supra.
So far as the State's case was concerned, it was made by direct evidence and was supported by the testimony of the defendant himself. It did not rely on circumstantial evidence for conviction. The only circumstantial evidence in the case revolved around the extraneous matter as to who actually made away with the money. Yet the court allowed instructions to the defendant which in effect required the State to prove its case to that degree required of circumstantial evidence cases.
The court also gave the "two-theory" instructions. Such instructions are erroneously given in cases dealing with direct testimony as distinguished from circumstantial evidence.
Williams v. State, supra; Jones v. State, supra.
We do not think any error has been committed by the trial court, but if there was, it was harmless to appellant in view of his own testimony. The judgment should be affirmed.
Argued orally by H.H. Creekmore, for appellant, and by Geo. H. Ethridge and W.D. Conn, Jr., for appellee.
The indictment against the appellant, Tom Murphree, is that by virtue of his public employment as Chief Clerk in the License Tag Division of the State Motor Vehicle Commission, he came into possession of the sum of $356 of public money which he failed to pay over to the Motor Vehicle Commissioner. To sustain this charge, the proof offered by the State was to the effect that Murphree received three certain checks of the Folse Drayage Company, Inc., of New Orleans, Louisiana, payable to the Motor Vehicle Commissioner, for the sums of $60, $98 and $198, respectively, in payment for temporary permits Numbered 86,987; 86,995; and 86,999, issued by him to the said drayage company on October 7, 1942, November 10, 1942, and January 14, 1943, respectively. That these checks were duly endorsed by the general bookkeeper and deposited in the bank to the account of the Motor Vehicle Commission. That is to say, they were accounted for in that the proceeds thereof were paid over to the Commission; but that, although the said checks were thus accounted for, the duplicate of each of the said permits which were issued in triplicate were extracted by someone in the meantime from a receptacle commonly referred to in the testimony as a "cigar box," which was kept at the office in an unlocked drawer, and that the corresponding amounts of cash were likewise taken from this cigar box, leaving the books of the office in balance since the duplicates of these three permits were never entered of record or thereafter accounted for.
It was also shown that these three permits in particular were issued out of the permit book of a field man, Mr. Baylis, who had left the employment of the Commission some time prior thereto on or about June 30, 1942, when the book was turned in by him to someone in the office; that during the busy season of the year for making collections, within which these three permits were issued, the entire office force and four or five of the field men would stand at a high desk in the office where they all were engaged throughout the day in issuing such permits out of any field man's permit book nearest at hand or from the office permit books, indiscriminately; that each of those thus engaged in the work, and who were under bond in like penalty as that of the chief clerk, had equal access to the cigar box in which they were placing the duplicate permits, checks and cash, and taking out money for making change for the purchasers there present, and frequently for cashing their own and other personal checks; and that after the close of a day's collections, which at times amounted to nearly $100,000 per day, these duplicate permits, checks and cash were removed by someone from this temporary and common depository and spread out on a table to be counted by several persons to ascertain whether or not the amount of the checks and the cash was in balance with the amount of the duplicate permits issued on that day.
That the defendant Murphree, although not a bookkeeper and not shown to have been assigned such duty by the Commissioner, assumed to enter on the books of the office kept by him in the License Tag Division the numbers of the permits and the corresponding amount of money collected for each; that these entries were often made from the data called off or furnished to him by those who had counted and balanced the permits with the amount of the checks and cash, either at the close of the day's business or on the next day thereafter; and that the entries on the duplicate permit and cash books which were ordinarily thus kept by Murphree were made by an assistant clerk during his absence from the office for a few days from time to time, although it was specifically shown that he was present and making the entries at the time the check for $198 was received on January 14, 1943. However, if this or any other duplicate permit and its equivalent in cash had been theretofore extracted from the cigar box by some other person, he could not of course enter the same on these books, nor would he have then necessarily recalled having issued a particular permit by number and amount.
That the duplicate permits, checks and cash were then carried sometimes by one person and then another to the general bookkeeper who made the necessary entries on her books as to the numbers of the permits and the amount of the collections, and then returned the duplicates to the License Tag Division, before depositing the money in the bank to the credit of the Motor Vehicle Commission.
That it was not discovered by the Legislative Investigating Committee until 1945 that the original of these three permits were held by the Folse Drayage Company. That thereupon a search of the books kept by Murphree and those kept by the general bookkeeper revealed that the numbers thereof had not been entered on any of the books. That a further search revealed that the field man's permit book out of which these three permits had been issued could not be found in the office, but that the defendant Murphree had then been in the Army for at least two years. And the State was unable to contradict his testimony to the effect that this permit book was left in the office so far as he was concerned when he entered the armed forces in July, 1943, except to the extent that it was contradicted by the inference that arises from the mere fact that it was not there when searched for in 1945.
It was not shown that the three license permits in question, Nos. 86,987, 86,995, and 86,999 were issued and taken out of the Baylis permit book between any of the unused permits, so as to support an inference that such book was thus used for the purpose of concealment. Whether or not the intervening numbered permits were issued by Murphree or someone else in due course, and duly entered of record in the separate book, if issued by a field man, in which the numbers were supposed to be entered in contrast with their grouping into one entry on the book kept by Murphree as, for instance, Field men — "temporary permits — $1,113.00," is not shown. If such had been the case, then no unfavorable inference against the accused could be drawn from the fact alone that he used a permit book of an employee who was no longer working for the Commission; and this is especially true when coupled with the further fact that all of those issuing permits used any book found most conveniently at hand.
The record being wholly silent as to what other permits were issued from the Baylis book and entered of record, as aforesaid, and there being no specific proof that this book bore any identification marks whereby Murphree would have been put on notice that it was the Baylis book, the suspicious circumstance, of his use of a book issued to a person who had left the employ of the Commission, loses its principal significance, in view of his undisputed testimony, when he accepted as true at the trial the statement in that behalf of the lady who worked in another office and issued the book to Baylis, and who had kept an independent record of the permits by number contained therein, that "Otherwise, I had no way of knowing." If it be assumed that Baylis had issued permits therefrom, and that the triplicates thereof, bearing his signature, were in the book, so as to indicate to Murphree whose book it was, it is further true that under the practice which the employees followed, of using each other's books indiscriminately, the same may have likewise contained triplicates bearing the signatures of other employees who were still working for the Commission.
From the foregoing facts, and there is no substantial conflict in the evidence throughout the entire record on any controlling fact or circumstance in the case, it will be readily seen that the proof as to who may have removed from the cigar box the duplicates of these three permits and the equivalent amounts in cash represented by the three checks of the Folse Drayage Company, is dependent entirely upon circumstantial evidence And it is well-settled by the criminal law of this State, and of all other enlightened jurisdictions, that where the guilt of an accused is to be based upon circumstantial evidence, the proof thereof must exclude every other reasonable hypothesis consistent with innocence. In the instant case, the other reasonable hypothesis appears from the proof on behalf of the prosecution, in that it is undisputed as aforesaid that any one of the several employees having access to the cigar box were afforded the same opportunity for removing the duplicates, and the equivalent thereof in cash, on each of the days when these duplicates, respectively, disappeared. Unless the proof is otherwise sufficient to show that the accused got the $356, the fact that he is designated "Chief Clerk," will not suffice to justify a verdict of guilty.
It is conceded that the defendant Murphree took off an hour for lunch each day, during which time the work of issuing permits and making collections continued, and that he was frequently out of the office for a few days from time to time.
This brings us to the State's theory that since Murphree was not indicted for the unlawful conversion of these funds to his own use, but for failing to account for and pay over to the Commissioner the sum of $356 in cash collections upon the theory that this money had come into his possession as chief clerk, and that therefore "it became immaterial as to who actually made away with the money, . . . whether Murphree or someone else." To sustain this theory — the application of which under given circumstances may often mean a vicarious suffering unknown to the requirements of man-made law under our constitutional system of government — the State relies upon the case of Hemingway v. State, 68 Miss. 371, 8 So. 317; McInnis v. State, 97 Miss. 280, 52 So. 634; and Sanders v. State, 141 Miss. 289, 105 So. 523. But in the Hemingway case the accused was not merely the chief clerk in the State Treasury Department. He was charged with certain statutory duties as State Treasurer in regard to accounting for the funds coming into his own possession as an officer. No such duties were imposed by any statute upon Murphree as chief clerk of the License Tag Division or assigned to him by the Commissioner, so far as the proof in the instant case discloses. Moreover, in the Hemingway case, even though the trial court held that the prosecution had made out a prima facie case and granted an instruction for the State to the effect that it devolved upon the accused to explain what became of the money in question, and to give a reasonable excuse for his failure to pay it over, the court also granted thirty-seven instructions in favor of the defendant, several of which emphasized that in order to convict it was necessary for the jury to believe "that the defendant, and no other, unlawfully converted it (the money in question) to his own use, or that he, having it, wilfully withholds it from his successor."
In the later case of McInnis v. State, supra [ 97 Miss. 280, 52 So. 636], wherein the statute provided punishment for either the unlawful conversion to the officer's own use or for an unlawful failure on his part to pay over, the Court said that "The object was to punish for an unlawful appropriation to his own use, and this may be done by showing either an unlawful conversion or an unlawful failure to turn over when required by law so to do." Thus, it will be seen that fundamentally it devolved upon the prosecution to show that McInnis was guilty of "an unlawful appropriation to his own use" of money which had come into his possession, even though such fact of conversion by him could be established to the satisfaction of the jury in either one of the two ways above mentioned.
And in the case of Sanders v. State, supra [ 141 Miss. 289, 105 So. 526], it was charged that the accused had unlawfully converted certain money to his own use, and the Court held that it was neither necessary to charge in the indictment nor to state in the instructions to the jury that the act complained of was done with the intent to cheat and defraud. Obviously, when the proof for the State discloses that a person has unlawfully converted trust funds to his own use and benefit, it would necessarily follow as an inevitable consequence that he did so with the intent to cheat an defraud. It was evidently for that reason that the Court stated in its opinion that "the state was not required to go beyond the averments of the indictment with its proof."
In the instant case, the several employees engaged in issuing permits and collecting money therefor were using the cigar box as a receptacle for pooling their collections. Under this system, these funds were no more in the possession of the defendant Murphree than they were in the possession of several other bonded collectors, until after an opportunity had been afforded to each and all of them throughout the day to remove a duplicate and its equivalent in cash therefrom. The same duty rested upon the other employees to leave these duplicates and the cash in the cigar box until the same could be counted and entered upon the book as rested on the defendant — a mere "straw boss" — under the system employed.
Section 9376, Code 1942, provides, among other things, that "The Commissioner is hereby vested with the sole and exclusive power and authority and he is hereby charged with the duty of administering" the provisions of the Motor Vehicle Act. Section 9377, Code 1942, gives the Commissioner power and authority to make all rules and regulations necessary to contribute to a more efficient administration of the Act, and provides that such rules and regulations, when made, shall have binding force and effect as if incorporated in the statute. Section 9380, Code 1942, provides for appointment of a chief clerk and other employees by the Commissioner, with the approval of the Governor, and that they shall be under the control and direction of the Commissioner, and the Commissioner is authorized to assign to them their duties. Since the statute does not prescribe the duties of the chief clerk, and there was no proof offered to show what rules or regulations were made or as to what duties were assigned to him, he cannot be held criminally responsible for the failure to change the indefensible system of making and handling collections hereinbefore set forth where it is shown that he merely followed the system which was already in force when he assumed the work as chief clerk in the License Tag Division, — a system which a former assistant Motor Vehicle Commissioner testified he was ashamed of, and who has since set up a more efficient system as an employee of the Commission under the new Comptroller.
From the foregoing views, it follows that we are of the opinion that the evidence was insufficient to warrant a conviction, and that the defendant was entitled to a directed verdict in his favor, as requested in the trial court.
Reversed, and judgment here for the appellant.
Sydney Smith, C.J., did not participate in this decision.