Hinderer v. State , 38 Ala. 415 ( 1863 )

STONE, J.

The defendant was tried and convicted under section 3143 of the Code, which provides for the punishment of any clerk or agent of any piivate person, who embezzles, or fraudulently converts to his own use, any property of another, which has come into his possession by virtue of his employment, &c. The only reason urged in this court for a reversal, grows out of the question, was the defendant, under- the facts of this case, the clerk or agent of George O. Janney?

Agent, in the sense here employed, means, “ one who is authorized to act for another; a substitute ; a deputy ; a factor.” — Worcester’s Dictionary; Brooks v. The State, 30 Ala. 516.

The objection urged is, that the defendant was the agent of the Confederate States Government, and not of Mr. Janney. We cannot assent to this proposition. Mr. Janney was the post-commissary; and according to the only testimony in the case which bears on this question, “ he (Mr. Janney) employed the defendant to take charge and superintend the bakery, and the making the flour into bread. All these contracts were made in his (Mr. Janney’s) own name, and without the knowledge or authority of .the government, or its officials; and he paid the employees monthly, and the receipts given by them for their pay, were given to him as post-commissary of subsistence, being so expressed in them.” These acts clearly show that the defendant was the employee of Mr. Janney. Do they tend to show that -he was the agent of the government ? There can be no agency without the corresponding relation of principal. — -2 Bish. Cr. Law, $ 286. Was the Confederate Government the defendant’s principal ? The acts of an agent, within the scope of his authority, are the acts of his principal; and the principal is responsible, civilly, for the consequences of negligence, or want of skill in the agent, while perforating duties within the purview of the agency. Could these liabilities attach to the Confederate Government, under the circumstances disclosed in this record ? Most certainly they could not. As well might it be contended, that the drayman, who, under a contract with the commissary, transports to the latter supplies purchased by him, is the agent of the government, as that this defendant is.

If the defendant had contracted with the government, was to account with the government, or to look to it for compensation, the rule would probably be different. Here, he had no claim upon the government for his compensation, nor were the rates of his wages subject to be controlled or modified by its will. His wages were stationary, and fixed by contract with Mr. Janney ; and the latter, if sued for the price, would not be heard to assert his want of authority to make the contract, nor to deny his personal liability upon it. Neither could the defendant, in any event, claim compensation of the Confederate Government. — Jones v. Dawson, 19 Ala. 672.

In England, under a statute which strikingly resembles ours in this respect, it was ruled, that a servant in the employment of A. & B., who are partners, is the servant of each ; and if he embezzles the private money of one, may be charged under the statute as the servant of that individual partner. — Rex v. Leech, 3 Starkie, 70.

In the case of Regina v. White, (8 C. & P. 742,) White was indicted as the servant of one Bricknel. It appeared that Bricknel was one of several proprietors of a stagecoach, running from Birmingham to Hereford, which coach Bricknel supplied with horses from Hereford to Malvern. Bricknel himself was in the habit of driving the coach from Worcester to Hereford, and employed the prisoner to drive for him when he did not go himself. All the proprietors were interested in the moneys received throughout the line;but Bricknel received and held the money taken on that part of the line between Worcester and Hereford, and was accountable to the other proprietors for it. White embezzled funds which came to his hands while driving for Bricknel ; and the court ruled that, as between the prisoner and Bricknel, the moneys were received to the use of Bricknel, and that White was the servant of Bricknel.

In the case of Regina v. Callahan, (8 C. & P. 154,) the court held, that the prisoner was servant to those persons to whom it was his duty to account, although he was appointed by other persons.

In this case, the defendant received his appointment from Mr. Janney; and there can be no doubt of his liability and duty to account with him for the flour intrusted to his keeping. It came into his possession by virtue of his employment, and the case is thus brought directly within the statute. — Lowenthall v. The State, 32 Ala. 595; People v. Sherman, 10 Wend. 298; Ros. Cr. Ev. 443-4.

It is, perhaps, not material to inquire, whether the prisoner may not have been also the servant of Mr. Janney. A servant, whenever he is clothed with authority to act, or exercise judgment or control, in the absence of his master, is an agent of the latter. — 2 Kent’s Com. 622, note; 1 Burrill’s Law Dictionary, 73 ; Powell v. The State, 27 Ala. 51; Stanley v. Nelson, 28 Ala. 514. We hold, however, that if Mr. Janney’s testimony be believed, the defendant was, in this service, strictly an agent. He was employed to take charge of and superintend the bakery. It nowhere appears that he was even a baker, or had anything to do with the baking, further than “ to take charge and superintend the baking, and the making the flour into bread.”

If there be any fault in the affirmative charge, it was too favorable to the prisoner. The bill of exceptions informs us, that it contains all the evidence ; and there is no testimony which tends to show that the defendant was the clerk or agent of the Confederate Government.

The first and second charges asked by the defendant, and refused by the court, were abstract, and should not have been given. The third and fourth charges are in conflict with the principles we have declared above, and were rightly refused.

There is no error in the record, and the judgment of the circuit court is affirmed.