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OCTOBER 11, 1989





Evidence before us convincingly suggests that a secretary in the Division of Vocational Rehabilitation repeatedly forged the name of her blind, peer counselor, co-worker to bogus vouchers and illegally procured from the state auditor checks payable to fictitious or ineligible Voc Rehab clients, which when cashed netted her in excess of $10,000.00 of public monies set aside to aid the handicapped. She has been convicted of embezzlement. Our authority on appellate review is limited to the faithful application of the particular embezzlement statute under which the prosecution has elected to proceed, as there is no enforceable natural law of theft. On the facts the accused never had lawful possession or custody of the monies, and because of this she has not offended the statute, which thus exalts arid legal logic and unmistakably proclaims that a person cannot embezzle what she has stolen.

 We reverse.



 The Independent Living Center is a branch of the Division of Vocational Rehabilitation, a state agency. ILC performs services for disabled persons and thereby assists those persons to become more independent. The Center makes purchases, such as durable medical equipment, wheel chairs, hospital beds, artificial limbs and, as well, services such as attendant care and transportation for the benefit of its clients. These purchases are made with public monies provided jointly by the United States and the State of Mississippi.

 In 1985-1986, Judy Pennock was employed as a secretary at ILC. Pennock was the defendant below and is the appellant here. She served with an ILC peer counselor, Larry Dixon, who was and is blind. Ida Vanlandingham was another ILC peer counselor during this period, serving on a part-time basis.

 Beginning in January of 1985, Pennock and Vanlandingham embarked upon a course of conduct in which they appear to have pilfered in excess of $10,000.00 in public funds. Under their modus operandi, Pennock would prepare a voucher, a form labeled "statement of account," either in the name of an individual who was not eligible for Voc Rehab services or who was a fictitious person. The statement of account would reflect services - here either "attendant care" or "transportation" - rendered to the individual named as client. Pennock would submit these statements of account to the office of the State Auditor for

 payment and checks would be procured made payable to the client named in the statement. Before submission to the Auditor, however, each statement of account had to be authorized by an ILC counselor. Dixon was ILC authorized counselor. Because of his blindness, Dixon generally had Pennock sign his name to whatever papers were necessary. Pennock took advantage of this trust and supplied Dixon's signature to these bogus statements. There is no evidence, however, that Dixon in fact authorized Pennock to sign his name other than to legitimate statements of account, nor more particularly to any of the statements at issue. Before payment the statement of account required as well the signature of the client himself or herself. Vanlandingham performed this task. In due course, the Auditor's office would issue checks conforming to each statement of account and payable to the client. Pennock or Vanlandingham would intercept these checks. One or the other would then "endorse" the check, cash it and the two would split the loot.


 This criminal prosecution was formally commenced on December 8, 1986, when the Grand Jury for the First Judicial District of Hinds County returned an indictment charging Pennock with embezzlement of approximately $10,000.00 of monies properly belonging to the Division of Rehabilitation Services. Although the particular embezzlement statute is not identified in the indictment, the State concedes that the prosecution is had under Miss. Code Ann. 97-11-25 (Supp. 1989). In due course, the case was called for trial. Vanlandingham *fn1 was the star witness for the prosecution, providing another bit of evidence validating the Prisoner's Dilemma *fn2 and showing it more than a mere theorem of interpersonal behavior. Although she had confessed ab initio, Pennock took the witness stand in her own defense and denied all guilt, claiming either that her actions were authorized or that she had no knowledge of the fictitiousness or ineligibility of any clients. Pennock denied any forgeries. On July 17, 1987, the jury found Pennock guilty as charged. The Circuit Court sentenced her to a term of five (5) years in the custody of the Mississippi Department of Corrections.

 Pennock moved for judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial. On August 12, 1987, the Circuit Court entered its order ...

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