7 Div. 545.
April 15, 1919. Rehearing Denied May 6, 1919.
Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.
Austin G. Weldon was convicted of larceny, and he appeals. Reversed and remanded.
Defendant was indicted under five counts. Four of the counts charged embezzlement, and one charged grand larceny. The defendant was convicted under the larceny count, and from the judgment appeals.
Riddle Riddle, of Talladega, for appellant.
J.Q. Smith, Atty. Gen., and Richard Evans, Asst. Atty. Gen., for the State.
The defendant was the city clerk and tax collector for the city of Talladega. As such, it was his duty to collect all money due the city, and make a record thereof, and also to act as clerk and collect all moneys due the Talladega light and water commission. The money when collected was to be deposited in the bank. During the period covered by the indictment there was a shortage between the amount collected for the light and water commission and the amount deposited of about $2,300. Under an arrangement between the city and other parties in interest, the city of Talladega had a special property interest in the money collected for the light and water commission, and therefore the ownership of the money was properly laid in the city of Talladega. There was evidence tending to prove the conversion of the $2,300 by the defendant before it was deposited in the banks to the credit of the city or to the light and water commission.
The question of importance in this case is: Can the defendant be convicted of larceny under the facts as presented? The defendant was admittedly the agent of the city and the light and water commission to collect the money and to deposit it. If the defendant had the right to collect the money and did collect it as such agent, then there was no element of a felonious taking from the possession of his principal, which was necessary to a conviction where the ownership of the property is laid in the principal. If the collection was made and the money taken from the debtor to the city, in such manner and under such circumstances as to have constituted larceny, then the trespass would have been against the possession of the debtor, and in that event the ownership would have been laid in the debtor, and not the city. In either of these events, the defendant would have been entitled to the affirmative charge on the larceny count.
In efforts to maintain and uphold judgments of courts in cases of dishonesty, the appellate courts have clouded, rather than elucidated, the distinction between embezzlement and larceny. But one thing remains clear, and that is that in larceny there must be a trespass and a trespass is a wrong to the possession. Holbrook v. State, 107 Ala. 154, 18 So. 109, 54 Am. St. Rep. 65; 25 Cyc. 22. In order to render the offense larceny, where there is an appropriation by a servant who is already in possession, it must appear that the property was at the time in the constructive possession of the master. 25 Cyc. 22. In order for property to be in the constructive possession of the master, the property must once have been in his possession, and have been delivered by him to the servant. Roscoe on Criminal Evidence, § 646; 25 Cyc. 26. But, if the money comes to the possession of the servant from a third person and has never been in the possession of the master, and the servant converts it, it may be embezzlement, but not larceny.
Holbrook v. State, supra; Com. v. Berry, 99 Mass. 428, 96 Am. Dec. 767; 9 R. C. L. 1271, par. 11; Talbert v. State, 121 Ala. 36, 25 So. 690. In other words, a servant has possession, as distinguished from custody, where property is received from a third person for the master, until he delivers it to the master or has put the master in possession by depositing it in a depositary provided by the master for that purpose; until he has done this, if he fraudulently appropriate the property, it is embezzlement. Com. v. King, 9 Cush. (Mass.) 284; Rex v. Walsh, 2 Leach C. C. 1054; State v. Johnson, 49 Iowa, 141; Rex v. Bagley, 2 East. P. C. 571; Reg. v. Betts, Bell, C. C. 90. If, on the other hand, the property has been delivered to the master, and the fraudulent conversion takes place by the servant, it is larceny.
In this case it does not appear from the testimony of the state that the money collected by the defendant was ever placed in the depositary provided by the city; but, on the contrary, it was claimed, and the state's evidence tended to show, that the money was collected and not deposited, and therefore this case is differentiated from Lacey v. State, 13 Ala. App. 212, 68 So. 706, and the authorities there cited. There is, however, in the testimony of the defendant a casual allusion to a cash drawer in which Osborn, one of the collectors for the city, after collecting the money due the city or the water company, would put it; and, when there was a sufficient amount, defendant would deposit it in the bank. If this cash drawer was a depositary provided by the city for the deposit of its funds as collected from the various sources of its revenue, and this money was so deposited, and afterwards was taken and converted by the defendant with the felonious intent, it would be larceny; but, under the facts as here presented, it does not so appear. Non constat, if was a cash drawer provided either by Osborn or the defendant for their convenience in keeping money in the possession of the defendant. Under the facts as presented, the defendant could not be convicted of larceny, and the court erred in refusing to give to the jury the general affirmative charge as to the larceny count.
The judgment is reversed, and the cause remanded.
Reversed and remanded.