Ex Parte Cowart

PER CURIAM. The petition in this cause presents for consideration the ruling of the Court of Appeals as to exception numbered 3 to the court’s oral charge to the jury, which said exception was held by this court to be sufficiently definite and properly reserved for consideration in Ex parte Lee Cowart (present term) ante, p. 55, 77 South. 349. The exception referred to and considered by the Court of Appeals is as follows: “When he drew that money out of the bank, then it was his duty not to have.appropriated the money to his own use, but it became Ms duty to place that money where it belonged, which was in the treasury of the state. Now you recall the evidence which has been offered with reference to the deposits made by him in the state treasury with the auditor, and fail *526 ing to do that lie then used knowingly money that belonged to the state, and under that he would be guilty.” Petitioner was tried under an indictment containing eight counts. The first count was under section 6838 of the Code of 1907, charging embezzlement by a public officer. The six counts following were drawn under section 6831 of the Code of 1907, charging embezzlement by an agent, trustee, or bailee, and the last was a larceny count. The petitioner was convicted under count 4 (the verdict so specifying), which said count was drawn under section 6831 of the Code, and is as follows: “The grand jury of said county further charge that before the finding of this indictment Lee Cowart, being at the time the bailee or trustee of the state of Alabama, embezzled or fraudulently converted to his own use money to about the value of <[>50, which had come into his possession by virtue of such bailment or trusteeship.” [1, 2] Under count 1 of the complaint fraudulent intent was not an essential ingredient of the crime, as under section 6838 of the Code a public officer who knowingly converts to his own use, or permits another to use, any of the revenue of the state, or of any county thereof, or any money paid into his office or received by him in his official capacity, may be convicted as if he had stolen the same. Under counts 2, 3, 4, 5, 6, and 7, however, drawn under section 6831 of the Code, fraudulent intent is an essential ingredient of the crime. [3] The portion of the charge excepted to, above set out, in substance charged the jury that if the defendant knowingly used the money that belonged to the state he would be guilty. The majority of the court are of the opinion that this charge was clearly erroneous, and is properly construed as meaning that the defendant would be guilty under the counts as set forth in the indictment, and that as to count 4, under which the defendant was convicted, the charge was clearly erroneous, in that a fraudulent intent was an essential ingredient for conviction as charged in said count. [4, 5] It is recognized that the portion of the charge here excepted to should be construed in connection with the whole charge of the court; but the court is of the opinion that the extracts from the oral charge set out in the opinion of the Court of Appeals do not cure the error contained in that portion of the charge to which the exception was reserved, and that the erroneous instruction was not elsewhere corrected by the trial court in his charge to the jury. The court is therefore of the opinion that, as the fraudulent intent was an essential ingredient under count 4 of the complaint, the portion of the charge here excepted to was such error as to call for a reversal of the cause. The writ of certiorari is therefore awarded, and the judgment of the Court of Appeals reversed and the cause remanded to that court. Reversed and remanded. ANDERSON, C. X, and .MAYFIELD, SAYRE, SOMFJRYILLE, and THOMAS, XT., concur.