The indictment was not subject to the demurrers interposed thereto, and which were properly overruled. — Bailey v. The State, 116 Ala. 439, 22 South. 918.
Many of the objections to the evidence grew out of the attempt of the state to establish the amount of funds received by the defendant as agent of the American Bridge Company, and which had not been accounted for by him. The defendant admitted getting .$1,500, less cost of exchange, as agent for the company, which he had not disbursed, and which he claimed to have lost through pickpockets or otherwise, and the jury found the amount embezzled to be only this amount. Cbnse*110quently errors committed, if any there were, in attempting to fix the amount embezzled by the defendant, were Avithout injury.
The indictment charged the defendant with the embezzlement of funds, etc., coming into his hands by virtue of his employment, and not with forgery or the procurement of money by falsely impersonating another. Indeed, the offense of embezzlement grows out of the conversion of funds properly in the custody or control of the defendant. The trial court erred in permitting the state to show that the defendant dmv funds on checks that he had signed, Avithout authority, in the name of Wm. Otldns. This evidence had no tendency to prove the charge involved, but related to another separate and distinct offense, and Avas highly prejudicial to the defendant.
Charge 2, requested by the defendant, should have been given. If the check was payable to him, and he cashed it, that fact would not constitute an embezzlement of the check. The charge does not instruct an acquittal, or exonerate the defendant from embezzling the proceeds, but simply instructs that the cashing of.the check did not constitute an embezzlement of the said check.
Charge 3 was abstract, if not otherwise bad. The defendant did not refuse to testify, but answered the question, as to the Otldns check, which Ave have heretofore held Avas not relevant evidence. He did object to the question, but did not refuse to ansAver same, after his objection Avas overruled.
The judgment of the criminal court is reversed, and the cause is remanded.
Reversed and remanded.
Dowdell, C. J., and McClellan and Mayfield, JJ., concur.