BEFORE DAN LEE, P.J., PRATHER AND GRIFFIN, JJ.
PRATHER, JUSTICE, FOR THE COURT:
The decisive question in this appeal is whether a business transaction between a wholesale dealer of cars and the seller constituted an entrustment of the automobiles and a subsequent conversion or whether the transaction was a sale which would not give rise to an embezzlement charge.
Holding that the transaction was a sale and that the charge of embezzlement was inappropriate, this Court vacates the conviction and discharges the defendant.
On January 24, 1986, Harold Reed was indicted in the Circuit Court of DeSoto County for embezzling or converting to his own use a 1981 Pontiac Bonneville. Reed was convicted of embezzlement, and appeals and assigns as error:
(1) The court erred in not sustaining defendant's motion for directed verdict at the conclusion of the State's case in chief and in not granting Reed's motion for judgment of acquittal notwithstanding the verdict of the jury, or in the alternative for a new trial.
(2) The trial court committed reversible error in allowing the State to put into evidence, over appellant's objection, a deposition given by defendant in a civil lawsuit involving the same subject matter when the defendant had elected not to testify in the criminal charge against him and which was not tendered in pre-trial discovery.
Mr. Bill Wood (hereinafter Wood) resides in Harrison, Arkansas. He owns and operates a business known as Bill Wood Chevrolet, Inc. Through this business, Wood sells new and used cars, both wholesale and retail.
In July of 1984, Harold Reed (hereinafter Reed), visiting Arkansas on a vacation, had an auto accident. Reed stopped by Mr. Wood's business, stored the disabled van for three or four weeks, and was forced to purchase a vehicle from Mr. Wood.
At the time of the purchase, Reed, also in the car business, was known in the trade as a "wholesaler." Reed and Wood entered into a business arrangement whereby on September 24, 1984 Wood allowed Reed to take possession of thirteen vehicles, transport them to Reed Auto Sales in Olive Branch, Mississippi and attempt to sell same. Two of the thirteen were not paid for nor were they returned to Bill Wood Chevrolet, to-wit: a 1981 Pontiac Bonneville Coup and a 1982 Pontiac Grand Prix.
Bill Wood Chevrolet, Inc. filed suit against Harold Reed, individually and d/b/a Reed Auto Sales seeking $11,400.00 in actual damages for Reed's alleged failure to
pay for above two automobiles. During the pendency of this civil suit, Reed's deposition was taken, and at that time no criminal charges were pending against Reed, nor was he represented by an attorney in the lawsuit or at the deposition. Reed admitted having bought the two vehicles from Wood and admitted an unpaid debt to Wood for their purchase. Default judgment against Reed was entered on November 12, 1985. The January, 1986 indictment for embezzlement of the 1981 Pontiac Bonneville involved in this appeal followed.
DID THE TRIAL COURT ERR IN NOT SUSTAINING DEFENDANT'S MOTION FOR DIRECTED VERDICT AT THE CONCLUSION OF THE STATE'S CASE IN CHIEF AND IN NOT GRANTING REED'S MOTION FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT OF THE JURY OR IN THE
ALTERNATIVE FOR A NEW TRIAL?
The defendant Reed argues that the State failed to prove beyond a reasonable doubt that Harold Reed committed the crime of embezzlement. In support of this contention, the defendant directs this Court's attention to 97-23-19, Miss. Code Ann. (1972). This statute reads as follows:
If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, he shall be guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the penitentiary not more than ten years, or fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.
The State of Mississippi endeavored to prove that the defendant [Reed] was the bailee of Bill Wood Chevrolet, Inc. and in that capacity, embezzled a 1981 Pontiac Bonneville automobile from the bailor which was entrusted to him by virtue of his office, place or employment with Bill Wood Chevrolet, Inc.
The defense urges that the State put on no proof that Reed was a bailee for Wood.
The record explained the method by which this business transaction was conducted between Wood and Reed. The vehicle was titled to Bill Wood Chevrolet, Inc., and physical possession of some thirteen vehicles was given to the defendant in Arkansas for his transporting to his auto business in Olive Branch. The titles to the various vehicles were taken by Wood to his bank in Arkansas, and Wood's bank mailed the titles with a bank draft to the defendant's bank. On arrival at the defendant's bank, the defendant would examine the papers at his bank, and if correct, the defendant would direct his bank to pay Wood's bank. Wood acknowledged in his testimony that this draft method of doing business had been followed by him for his thirty-four years in business and was common practice in the business.
Throughout his testimony, Mr. Wood used the term "sold" in describing this business transaction. Additionally, Mr. Wood acknowledged that he received no money at the time of delivery of the vehicles, but that he (Wood) considered Reed to be indebted to him.
The decisive question in this case is whether the transaction between Reed and Wood constituted an entrustment of the automobiles and a subsequent embezzlement thereof, or whether the transaction constituted a sale so that a charge of embezzlement would be inappropriate. For resolution of this question Howington v. State, 256 So. 2d 382 (Miss. 1972) gives direction. In Howington, the defendant was charged, tried and convicted of embezzlement of an automobile. Prior to the conviction, the defendant and the plaintiff entered into an agreement whereby the defendant was to borrow the automobile and drive it to his brother-in-law's ...