Smith v. State

Need, J., delivered the opinion of the court. Appellant, a trustee of the Mississippi penitentiary, was indicted, tried, and convicted on the charge of committing a fraud on the state. [495] The fraud charged against appellant was alleged to have consisted in his buying and participating in the buying of an automobile from himself and B aker-McDo well Hardware Company of Natchez, and in his assisting in causing and procuring the payment for the automobile by the state then knowing that it had not been purchased as provided by law, and that the price thereof was exorbitant and unreasonable. Appellant and two other trustees had general supervision of the state penitentiary and management of the "business and affairs of the penitentiary farms. To appellant and his associates was committed the duty of purchasing necessary supplies for the use of the penitentiary. Appellant owned a Buick automobile. This car had been the property of R. S. Withers, an automobile dealer In Jackson, Mississippi. Withers purchased it July 15, 1910. He sold it to Dr. Crook, of Jackson, who in turn •sold it to W. L. Brown, of the same city. In September* 1911, Mr. Withers again acquired ownership of the car. On September 28, 1911, he sold it to appellant for five hundred dollars, of which amount, one hundred dollars was paid in cash; the balance was on credit. Appellant took the car to his plantation at Insmore, Mississippi. He used it till October 8, 1912, when, through a trade or deal with the Baker-McDowell Hardware Company,- it was sold to the state for the price of nine hundred dollars. Shortly afterwards appellant, with another trustee* endeavored to deliver the automobile to the state farm at Parchman. It seems to have been the purpose at first, when the sale was negotiated, to deliver it to the farm at Tchula. On the way the car broke down and was .abandoned. It remained where it had broken down for several months. Finally after being repaired, it was shipped by railroad to Parchman. It was used scarcely at all after the breakdown, and thereafter was of small value. Pursuant to allowance of the account by the tr-us496 tees, a warrant for nine hundred dollars was issued to the Baker-McDowell Hardware Company in payment for' the automobile. The allowance was made March 4, 1913, after the automobile had been left on the way, disabled. We will not enter into any discussion or review of the evidence in the case. It is voluminous. Many witnesses were examined. There is much testimony, pro and conr relative to the value of the automobile, the sale to the-state, the place of delivery, the reputation of appellant,, and so on. A careful reading of the record convinces us that there was ample evidence to support the verdict of the jury. In truth it is manifest to us that the jury returned the only right verdict. We do not find in the record any reversible error. It is claimed that the demurrer to the count in the indictment on which appellant was tried should have been sustained. From our view of the case, the indictment is sufficient. It is difficult to define fraud. In its commission there-.are devices “almost infinite in variety.” As it involves breach of duty, trust, or confidence, it includes all acj;,s,. omissions, or concealments by which another is injured, or an undue and unconscientious advantage is-taken. The statement in the indictment of the acts constituting the offense, fraud, is made sufficiently direct,, clear, and concise, and furnished appellant an intelligible' description of the charge upon which he was tried. It is contended that error was made in giving instructions. Three instructions were given for the state. Against two of these there is complaint. It appears to us that in both instructions, the second and third, the issue presented by the indictment and proof is somewhat narrowed, but not to the prejudice of appellant. These instructions directed the law to evidence which we find in the record. In this trial on the charge of fraud alleged to have been committed by appellant, a state officer, against the state, each of the two instructions presented facts, which, if the jury believed, were sufficient to support a conviction. [497] Twelve instructions were given for appellant. Taken and construed together, they sufficiently announce the law pertinent to appellant’s defense. Construing all of the instructions used in the case together, and considering them as a whole, we believe the law applicable was fairly given. Appellant had a fair trial of his case. ¥e will not disturb the jury’s verdict. Affirmed.