The indictment contained 19 counts, charging defendant in various ways with grand larceny and embezzlement. The facts as disclosed by the record, so far as they are necessary to a decision of this case, are as follows: Alton P. Stephens was appointed, by the Secretary of State of the state of Alabama, as one of his assistants, to collect certain license fees in Jefferson and Shelby counties, under authority of an act of the Legislature approved April 22, 1911 (Acts 1911, p. 634), which act also fixed the fees to be paid by licensed chauffeurs operating automobiles, and also provided how application for licenses were to be made.
It was required as a part of these applications for these licenses that they should be sworn to before an officer authorized to administer oaths. The defendant was such an officer, and as such was entitled under the law to a fee of 50 cents for each applicant, whose affidavit he should take. The defendant having an office in the courthouse in Jefferson county, Stephens appointed him as his (Stephens') agent, to take applications for these licenses and to collect the proper fees, which, when collected, were to be turned over to Stephens, together with the applications, to be in turn forwarded to the Secretary of State. The defendant, acting under this arrangement, collected from numerous persons license fees aggregating several hundred dollars, which he failed to turn over to Stephens or to the Secretary of State, but embezzled or fraudulently converted to his own use. Under the evidence there is no doubt but that the defendant is guilty as charged in the indictment, either of larceny or of embezzlement.
The defendant insists that he is entitled to a reversal, first, because there was not sufficient evidence to sustain the larceny counts, and that the court erred in refusing to give at his request in writing the general affirmative charge as to these counts. In the case of Weldon v. State, 17 Ala. App. 68,81 So. 846, in a case where the defendant was convicted on a charge of larceny, this court reversed the judgment, because the evidence did not sustain the charge of which the defendant was convicted, and the verdict, being specifically referable to the larceny count, *Page 111 could not be referred to the counts charging embezzlement. In the instant case, the verdict is general, and referable to any good count in the indictment. Handy v. State, 121 Ala. 13,25 So. 1023.
The evidence in this case shows, without conflict, that only one act was being charged in the various counts in the indictments, to wit, the fraudulent misappropriation of certain funds. That this misappropriation constituted a crime, either larceny or embezzlement, is beyond question, depending upon whether the taking constituted a trespass or whether it was the fraudulent conversion of funds coming into defendant's possession as an agent. Being kindred offenses and subject to the same punishment, the defendant might have been charged with both in the same count of the indictment, in the alternative (Code 1907, § 7151), or, as was done in this case, in separate counts. Orr v. State, 107 Ala. 35, 18 So. 142. The object of such pleading being, not to convict the defendant of distinct offenses, but of the single offense established by the evidence. Orr v. State, supra. The theory of the law, in permitting this character of pleading in such cases, is to meet every probable contingency of the evidence. Under such a state of facts the state cannot be compelled to elect under which particular count it will conduct its prosecution. Neither can the jury any more be forced by instructions of the court to elect under which count they will convict. Jackson v. State,74 Ala. 26; mayo v. State, 30 Ala. 32; Howard v. State, 108 Ala. 571,18 So. 813; Butler v. State, 91 Ala. 87, 9 So. 191.
Where there is the slightest evidence from which the jury might draw a conclusion as to guilt under either count the affirmative charge should not be given, and where the facts in evidence as in this case conclusively and admittedly prove the defendant to be guilty of the embezzlement of the funds laid in the indictment and as charged in some of the counts in the indictment, which facts necessarily exclude proof of trespass, a refusal of the court to give the affirmative charge as to the larceny counts, while technically erroneous, is without any possible prejudice to the defendant, it not being probable that the jury would have rendered a verdict other than they did, had the charge been given as requested. Especially is this true, as the court correctly, at the request of the state, instructed the jury that:
"If they believed the evidence beyond a reasonable doubt, they must find the defendant guilty."
What possible prejudice could there be? Admittedly guilty of embezzlement. A crime of the same family as larceny. The punishment the same. The proceedings in this case a bar to any subsequent prosecution involving the same transaction. It would result in a lamentable maladministration of justice if the principle should obtain that a judgment should be reversed on account of the uncertainty of the trial judge as to the highly technical distinctions between actual and constructive possession, distinguishing the name of the crime for which the defendant was being prosecuted, when the defendant was admittedly guilty of the criminal act involving the same property. Code 1907, § 6264.
The defendant's principal, named in the various counts charging embezzlement, was described as "Alton P. Stephens," "Alton P. Stephens as Chauffeur License Collector," "Alton P. Stephens as Chauffeur License Inspector of the State of Alabama." The act of the Legislature of 1911 (Acts 1911, p. 634) places on the Secretary of State the duty of collecting chauffeur license fees and of issuing licenses to such persons as qualified under the act, and section 15 of the act authorized the Secretary of State to employ "such clerical assistance as may be by him deemed advisable for the proper performance of the duties imposed upon him by this act. In his discretion he may employ not more than two assistants to carry out the provisions of this act." In the act neither the clerks nor the assistants provided were given a title or name. Under this general authority the Secretary of State employed Alton P. Stephens to collect chauffeur licenses in Jefferson and Shelby counties, and to take applications from parties desiring such licenses and forward the applications, together with the license fees, to the Secretary of State, who would himself issue and return the licenses, for delivery to the parties to whom issued. Stephens in his testimony styles himself "State and county License Inspector," but such title was not authorized by law, and means nothing. he was nothing more or less than an employe of the state under authority of the act supra, under the direction of the Secretary of State, and as such had no authority to delegate to another the authority to collect the money due the state, in such sort as that payment to the agent of Stephens would ipso facto discharge the obligation of the payer to the state. But under his contract of employment Stephens was interested in the funds collected to the extent of 15 percent. of the aggregate amount, and, having made the arrangement with the defendant for the collection of the money, and, the applicants for license, relying upon this, having paid the money to the defendant, Stephens thereby became obligated to the original applicants to see that their obligations to the state were liquidated. Having such interest and the amounts having ben paid by the original applicants to the defendant under the arrangements with Stephens, there can be no doubt but that Stephens could have maintained an action for money had and received *Page 112 as against the defendant for its recovery. Such arrangement as Stephens had with the defendant with reference to collecting the money was as an individual and the defendant, under the facts of this case, was the agent of Alton P. Stephens, the money was paid to him by reason of this agency, and when he fraudulently converted it to his own use h was guilty of embezzlement. It makes no difference in whom the title to the money rested, whether in the state or in the various parties from whom defendant received the money, Stephens was responsible either to the one or thee other, and if an allegation of ownership were necessary, which in embezzlement is not, would be properly laid in Stephens. Hinderer v. State,38 Ala. 415.
The state, under the undisputed evidence, being entitled to the general affirmative charge, which at its request was given, it is not necessary to pass upon the other questions raised.
We find no reversible error in the record, and the judgement is affirmed.
Affirmed.
On Rehearing. The Attorney General moves the court to strick the application for rehearing field in this cause, and assigns as ground therefor that the application dos not comply with the requirements of Supreme Court rule 38 (77 South. vii), in that the brief accompanying said application failed to have a certificated of counsel that a copy of the brief had been delivered to the opposing counsel within 15 days after the rendition of the judgment.
Rule 38 as amended and as set out on page xiii of 198 Ala. (77 South. vii), provided that all applications for rehearing must be filed with the clerk of the court, accompanied by a brief for the applicant and a certificate that a copy of such brief has been delivered to the opposing counsel within 15 days after the rendition of judgment, whether such period extends beyond the term of court or not, and that no application shall be received or filed that is not presented within strict compliance with this rule. The application for rehearing does not comply with the rule, in that there is no certificate of counsel that a copy of the brief was delivered to the Attorney General, who under the law is the attorney of record in this court for the state in all cases where the state of Alabama is a party. This construction of the ruling finds support in the following cases: State ex rel. Attorney General, 185 Ala. 347,64 So. 310 Ex parte Fred Locklear (7 Div. 168) 205 Ala. 236,87 So. 712. It follows that the motion of the Attorney General must be granted.
However, the court ex mero motu has carefully considered this record in connection with the brief filed by appellant's counsel in connection with the application for rehearing, and after such consideration sees no good reason for changing its conclusions arrived at on the original submission.
The motion to strike is granted.