The indictment against this appellant contained six counts. The first two counts charged the embezzlement ofmoney. The remaining counts charged the embezzlement of corn.
As to the counts charging the embezzlement of corn, there was no dispute or conflict in any of the evidence, including that of the injured party, that the defendant was given full authority to sell the corn in question, and that the corn was in fact sold under this authority. These facts being established without dispute or conflict, it follows that a conviction under these counts could not be sustained.
Nor can there be a conviction in this case under counts 1 and 2 of the indictment, which, as stated, charged the defendant with embezzlement of money. The evidence without conflict discloses that appellant received a check, and not money, as alleged; therefore the evidence as to counts 1 and 2 in no way tended to sustain the averments of these two counts. Hendrix v. State, 17 Ala. App. 116, 82 So. 564; Carr v. State, 104 Ala. 43,16 So. 155. These cases are exactly in point, and are decisive of this question; therefore no necessity appears to discuss other questions presented.
The court erred in overruling defendant's motion for a new trial.
Reversed and remanded.