BEFORE WALKER, ROY NOBLE LEE AND BOWLING
BOWLING, JUSTICE, FOR THE COURT:
Appellant was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County for the crime of embezzlement. The facts of the case are undisputed. The question before us is simply whether or not under these facts, a person may be found guilty of the crime charged.
The embezzlement statute under which appellant was indicted is Mississippi Code Annotated, Section 97-23-25 (1972), which reads as follows:
If any person shall fraudulently appropriate personal property or money which has been delivered to him on deposit, or to be carried or repaired, or on any other contract or trust by which he was bound to deliver or return the thing received or its proceeds, on conviction, he shall be punished by imprisonment in the penitentiary not more than ten years, or be fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.
Mr. and Mrs. Talmon Caston purchased a lot for the purpose of building a home for their retirement. Mr. Caston was a funeral director and Mrs. Caston was a counselor at a public junior high school. The Castons entered into an initial written contract with appellant Shelley whereby the latter was to do certain framing and blocking in of the house for the sum of $12,000. At a later time, a new contract was entered into between Mr. and Mrs. Caston and appellant whereby for the sum of $20,000, appellant was to construct the building completely according to plans furnished by the Castons. The contract set out in somewhat detail the specific work to be done under the terms of the contract.
After the clearing of the house site, most of which was performed by appellant, the Castons paid appellant the sum of $2,000, which was the first payment toward the initial contract and according to the Castons, this payment was so that appellant could purchase the materials for framing the house.
Eleven days later, the Castons gave appellant a second check in the amount of $550, although no work had been done on the house.
The second contract for the completion of the house for $20,000 was entered into by appellant and the Castons on February 26, 1980. The $20,000 consideration was to include the $2,550 already paid appellant.
On March 13, 1980, the Castons executed a third check in the amount of $500 to the appellant. On April 3, 1980, the Castons executed another check to the appellant in the amount of $7,500. At this time,
no further work had been done on the house to any extent since the grading. Another check was issued on April 25, 1980, from the Castons to the appellant in the amount of $2,700. At this time, no work on the house was in progress. These payments brought the total amount paid by the Castons to appellant to $13,250.
After roughing out the foundation of the house, appellant did no further work thereon, except for bringing a small amount of materials, such as pipe, to the building site.
The Castons made repeated attempts to persuade appellant to complete the building of their house according to the contract.
Appellant advanced several assignments of error, but the disposition required of the appeal, mandates the consideration of only one; that is, the court erred in overruling appellant's motion for a directed verdict.
This appeal presents in reality a case of first impression in this jurisdiction. A case nearly in point is Howington v. State, 256 So. 2d 382 (Miss. 1972). There the accused and the prosecuting witness entered into an agreement whereby the accused was to take a car that was for sale and try it out, and if satisfied, the car would be purchased. To guarantee the transaction, the accused left a $200 check with the seller. The alleged purchaser, the accused, did not return the car. The alleged seller presented the check for payment and found that he had only a piece of paper. The alleged purchaser was indicted and tried for ...