27. CRIMINAL LAW (§ 1172*)-HARMLESS ER- | purpose." (3) "Conversion is any unusual, unBOB-PARTY ENTITLED TO COMPLAIN.

Where, in a prosecution for embezzlement, the papers of a civil suit against defendant were properly admitted in evidence, the defendant was not entitled to complain of a limitation made by the court to the jury to consider them only as to the question of fraud.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 3154-3163; Dec. Dig. 8 1172.*]

28. EMBEZZLEMENT (§ 5*)—ELEMENTS-INTENT. An agent may be guilty of embezzlement of his principal's property, though he has the secret, uncommunicated intent to convert it before he receives it, or before it comes into his actual custody, though he might be also guilty of larceny.

[Ed. Note. For other cases, see Embezzlement, Cent. Dig. § 3; Dec. Dig. § 5.*] 29. EMBEZZLEMENT (§ 23*)-DEFENSES-RESTOBATION OF FUNDS.

That an embezzler repaid the funds prior to the finding of the indictment was not a defense.

[Ed. Note. For other cases, see Embezzlement, Cent. Dig. § 31-351⁄22; Dec. Dig. § 23.*] Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.

John Wall was convicted of embezzlement, and appeals. Affirmed.

vert money from its legitimate and proper due, or illegal deflection with intent to perchannel. Did he appropriate, did he secrete, this fund, for the purpose of appropriating it to his own use, depriving this old woman of her ownership of that amount?” (4) “The question has come in here as to whether he has paid this money to this old woman. Gentlemen, I charge you this: That if the fraudulent intent was completed and existed in the mind of John Wall, and after the formation of the fraudulent intent, upon being harassed, he went and paid the money to this old woman, I charge you that the subsequent payment of the money to her and taking her receipt-and that is for you to say-does not wipe out the offense of embezzlement. If you are satisfied he converted it, I charge you that the subsequent payment does not release him from the charge of embezzlement."

The following charges were refused to the defendant: (12) "The court charges the jury that, if they believe that the defendant formed the intent to convert this money to his own use, or to the use of another person, prior to the receipt of the money, then you cannot convict the defendant under this indictment." (20) "The court charges the jury that, if you are reasonably satisfied from the evidence that the defendant formed the intent to convert the property which came into his hands by virtue of his agency or employment at the time the power of attorney was executed, and prior to the time the money or property was paid to him by the executor of the estate of J. J. Simpkins, then you cannot convict the defendant." (25) "The court charges the jury that, if they believe from the evidence that the defendant had the intent to convert the money received from the executor of the estate of J. J. Simp

Omitting the formal charging part, the indictment is as follows: "John Wall, alias John Walls, agent of Mandy Simpkins, embezzled or fraudulently converted to his own use money to about the amount of $500, which came into his possession by virtue of his agency or employment, against the peace and dignity," etc. The demurrers raise the questions discussed in the opinion. The power of attorney alluded to was from M. J. Simpkins to John J. Wall, constituting him agent and attorney in fact to fully adjust and settle with the executor of the estate of J. J. Simpkins, and with the heirs and legatees of said estate, all matters pertaining to her personal property and homestead exemp-kins at the time he received it, they cannot tions and distributive shares and dower convict under this indictment." (27) "The rights in said estate, for which she agreed court charges the jury that, if the defendant to pay 50 per cent. of all recovered for her; obtained the power of attorney from Mandy the power of attorney authorizing him to Simpkins with the fraudulent intent to conemploy an attorney and to pay all his actual vert to his own use the money which he necessary expenses. The letter referred to in would have paid under said power of attorthe opinion does not appear in the bill of ex-ney, they cannot convict the defendant of ceptions. Witness Coxwell was shown to embezzlement as charged in this indictment." have been clerk of the circuit court for six years, and to have been assistant cashier of the Monroe County Bank, and to have come in contact with various handwritings of this individual all over that section of the country, and was asked to give his opinion as to the handwriting in the body of the receipt, and the handwriting as to the signature to the receipt, and was permitted to do so.

(28) "The court charges the jury that if they believe from the evidence that the defendant, when he received the money alleged to have been converted to his own use, had the fraudulent intent then in his mind to so convert said money to his own use, he cannot convict the defendant under the indictment in this case." (13) "The court charges the jury that, if they believe that the defendant paid Mrs. The defendant objected to the following | Simpkins $500 prior to the finding of this portion of the court's oral charge: (1) "It is indictment, then you should acquit the deuncontroverted that the relationship of agency existed between the defendant and M. J. Simpkins." (2) "The chancery papers introduced in evidence are limited for a certain

fendant." (18) "The court charges the jury that the evidence is without conflict that the receipt for $500 offered in evidence was in the possession of defendant's attorney prior

while acting in the capacity of such agent, and a conviction could only be had upon such proof; 1. e., that defendant, by virtue of his agency or employment, and while so lawfully in possession or custody of such money, embezzled, or unlawfully and fraudulently converted, it to his use.

to the finding of this indictment." (21) The ment. When the indictment contains the general affirmative charge. (23) "The court allegation (as it does in this case) that the charges the jury that the undisputed testi- defendant's possession of the money alleged mony in this case shows that the defendant to have been embezzled was by virtue of his was paid less than $100 in money by the ex-agency, certainly the necessary inference ecutor of J. J. Simpkins." (24) "The court must, and does, follow that he embezzled charges the jury that under the power of attorney and agreement in evidence the defendant was entitled to one-half of the amount collected by defendant from the estate of J. J. Simpkins." (26) "The court charges the jury that the question as to whether or not one-half of the amount to be collected by the defendant was fair and reasonable as a charge for the service rendered is not before you, and should not be considered by you in arriving at a verdict in this case." (29) "The court charges the jury that under the power of attorney introduced in evidence the defendant had a right to collect the checks and money testified about, and if no time is specified in said instrument when same should be paid to Mrs. Simpkins, that defendant would have a reasonable time in which to pay it to her after he collected it from the executor of J. J. Simpkins, deceased."

[2] "The word 'embezzles,' used in the statute, is one having a technical meaning, and that meaning suggests the character and scope of the proof required to sustain the charge. It involves two general ingredients, or elements: First, a breach of duty or trust in respect of money, property, or effects in the party's possession, belonging to another; second, the wrongful or fraudulent appropriation thereof to his own use. There must be the actual and lawful possession or custody of the property of another by virtue of some trust, duty, agency, or employment on the part of the accused; and, while so lawfully in the possession of such property, it must be unlawfully and fraudulently converted to the use of the person so in the possession and custody thereof." Reeves v. State, 95 Ala. 31, 11 South. 158.

The separate averment of ownership of the money embezzled was unnecessary. The trial court properly overruled the demurrers to the indictment. Washington v. State, 72 Ala. 276; Lang v. State, 97 Ala. 41, 12 South. 183; Willis v. State, 134 Ala. 429, 33 South. 226.

PELHAM, J. The indictment in this case charges embezzlement, and is founded upon section 6828 of the Code of 1907, and conforms substantially to the section under which it is drawn and the form, in so far as applicable, prescribed for embezzlement (form 49, Code 1907, § 7161). The demurrers to the indictment are assigned upon the grounds that there is a failure to allege ownership of the property embezzled, or converted, and a failure to charge specifically that the defendant was acting as agent for his principal, named in the indictment at the time of the embezzlement. Since the stat-leading up to the prosecutrix's ownership of utes were enacted dispensing with many of the necessary averments in criminal pleading under the common-law rules, indictments are to a great extent reduced to a statement of legal conclusions, rather than facts, and from such legal conclusions naturally flow the necessary inferences.

[1] The indictment alleges the defendant's agency of a named principal, and the embezzlement, or conversion, by him of the money which came into his possession by virtue of such agency or employment. This is sufficient, and states the gist of the crime, while charging all the constituent elements of the offense, though it is the safer and better practice to specifically allege the ownership of the property embezzled, and the agency at the time of the commission of the offense, as separate and distinct averments apart from the natural and necessary inference of such ownership and agency at the time, which is drawn from the allegations of principal and agent, and possession of the property em

[3] The question asked the witness Amanda Simpkins by state's counsel, "Did your husband leave any estate of any kind in Monroe county?" was simply preliminary,

the embezzled property, and was not improper to be admitted. It was only a collateral incident to the matter in issue, and the rule requiring proof by the best evidence is not applicable. Griffin v. State, 129 Ala. 93, 29 South. 783; Allen v. State, 79 Ala. 34–39.

[4, 5] The question of the defendant's agency was a collective fact, and, the defendant being prosecutrix's agent, it was a matter peculiarly within her knowledge, and was properly admitted. The court excluded the witness' statement as to her "understanding" with reference to the collections of money by defendant. The collection of money, which, if retained, tended to prove defendant guilty of the offense, was material evidence, and the witness could properly testify to any collections of which she had knowledge, irrespective of how it might or could otherwise be proven, and her "understanding" with reference to it was properly excluded, leaving only competent evidence before the jury.

Simpkins was living "separate and apart", ord. The questions were only preliminary, from her husband was entirely irrelevant to for the purpose of identifying the suit and the issues, and the solicitor's objection to papers, as appears from the record by the such a question seeking to elicit such testi- solicitor immediately following up the quesmony was correctly sustained. The prosecu- tions by an introduction of the papers. trix's husband may, or may not, have left a will devising substantially all of his property; it was not the proper subject of inquiry in the case at bar.

The witness Jones was allowed to testify, without objection by the defendant, as a witness for the state, on direct examination: "I came back and prepared the bill and filed [8, 9] The motion of the dexendant, upon it in chancery court." And on cross-examicross-examination of the witness Darby, to nation the witness was asked by defendant's exclude part of his testimony given on direct counsel: "You say you filed a bill in the examination as to the payment to defendant, chancery court for Mrs. Simpkins?" to which as contradictory to his cross-examination, the witness answered: "I did." (It makes was properly overruled. It was for the jury no difference that defendant's counsel atto weigh and consider his statements, even tempted to withdraw the question after it if they were in conflict, and determine which was answered.) they would believe. Besides, if the property embezzled, as testified to by the witness on direct examination, did not correspond in part with the allegations in the indictment, it was not error to allow testimony of other embezzlements of different property by defendant, if the property was similarly received in the line of his agency, as going to show the act was knowingly and intentionally done. Stanley v. State, 88 Ala. 154, 7 South. 273; Reeves v. State, 95 Ala. 31-43, 11 South. 158; Lang v. State, 97 Ala. 41, 12 South. 183.

[10, 11] The testimony of the witness Gilmore, giving the names of the parties who wrote certain letters and some statement of their contents, was collateral, and not subject to the defendant's objection. The let ters were afterwards admitted in evidence, and no injury resulted to defendant from the statement of the witness.

[12] The testimony of the witness Beatrice Lee, objected to by the defendant, was excluded by the court. If the defendant deemed the testimony excluded prejudicial, he should have requested special instruction from the court to the jury not to consider it. The court exercised its full authority in excluding the testimony upon motion of the defendant, and there is nothing further upon which to predicate the objection and exception.

[13] It was entirely relevant, and not a violation of the rule requiring the best evidence, to prove by the witness Jones "how much" the amount of money was he (witness) came to settle with the defendant. Defendant had allowed the witness to state, without objection, that he had an agreement with Mrs. Simpkins to collect the money from the defendant, Wall, and Jones at the time was representing Mrs. Simpkins as an attorney seeking a settlement with the defendant of the very matter and moneys in question, all of which was known to the defendant at the time.

[14] After the witness had been asked by defendant's counsel about filing a bill in the chancery court, it was permissible for the state to ask the witness what the chancery

[15] The state then offered in evidence the original chancery proceedings in the case; the defendant objected, but the court overruled the objection and admitted them in evidence, and the defendant duly excepted. The original bill was limited "to show fraudulent intent" when admitted by the court, and was also likewise limited by the court in the oral charge to the jury. In cases involving proof of fraudulent conversion, great latitude is allowed in the evidence, in order to establish the crime, the very nature of which makes it rarely susceptible in all its necessary phases of direct or positive proof. It is not, however, permissible to introduce in evidence civil judgments or decrees rendered against the defendant, even though they involve the same matters, on the trial of a criminal prosecution, for the obvious reason that the judgment or decree in the civil action may have been rendered on a state of facts totally irrelevant in the criminal case, and on a different rule of the measure of proof. It is quite probable, also, that the defendant might be civilly, but not criminally, liable, nor is there a mutuality of parties. The proceedings are totally dif ferent, and such judgments and decrees are not. admissible as a general proposition. Britton v. State, 77 Ala. 202.

[16] It is a well-settled rule in the trial of criminal cases that where the defendant has elicited part of a conversation, or transaction, on cross-examination, the state is entitled to have the whole conversation or transaction go to the jury. Simmons v. State, 145 Ala. 61, 40 South. 660. And, where part of a conversation is brought out by the state, the defendant is entitled to have the whole conversation, or all said in that connection, put before the jury. Drake v. State, 110 Ala. 9, 20 South. 450.

In the case of Williams v. State, 103 Ala. 33, 15 South. 662, it was held that the state had the right to bring out the facts and circumstances which caused a shooting at the time the defendant was under arrest for a different offense, after the defendant, on cross-examination of a witness, had called out the fact of the shooting.

this state that when part of a conversation, | licitor. There was no error in the exclusion or part of a transaction, is put in evidence, of defendant's statement, marked "Exhibit the opposing party may call for the whole AA," in regard to expenses incurred by him, conversation or transaction. Gibson v. State, as it was entirely irrelevant. 91 Ala. 64, 9 South. 171; 1 Brick. Dig. § 1217.