St. Clair v. State , 100 Ala. 61 ( 1893 )

McCLELLAN, J.

This is a prosecution for embezzlement. The indictment contains two counts. The first count charges that defendant, being the agent of one Holcombe, embezzled certain described evidences of debt belonging to his principal, and which had come to defendant’s possession by virtue of his employment as such agent. The second count charges the defendant, being the agent of Holcombe, with the embezzlement of certain money of his principal, which had come into his possession by virtue of his employment as such agent. On the trial it was shown without conflict that “the evidences of debt” charged by the first count to have been converted were what are commonly known as “labor tickets” or “labor checks,” which had been issued by the Elliott Oar Company, through its timekeeper to the defendant, John St. Olair, in payment of, or to evidence, amounts due to him from the company for labor performed by him for it. The following is a copy of one of said tickets, and the others involved here are substantially the same, for all the purposes of the questions arising in regard to tlrem: “The Elliott Oar Company. On the 10th day of April, 1892, pay to John St. Olair (not transferable) ten & 62-100 dollars, ($10.62), less amount punched in margin, in full payment for his wages, week ending Friday, Mar. 25, 1892. T. R. Simmons, Timekeeper. ' To Treasurer of the Elliott Oar Company, Gadsden, Ala. No. 30,785.” Five of these tickets, aggregating $72.31, being thus issued to, and in the hands of, St. Olair. he undertook to sell them to Holcombe, and did deliver them to him to that-end, and received an agreed consideration for them. At their maturity Holcombe put them in the hands of St. Olair to be by him collected from the company for and on account of Holcombe, to whom the proceeds were to be paid by St. Olair immediately upon the latter’s receipt thereof from the company. St. Olair collected the money due on the tickets, and delivered them up to the company, whereupon the word “Cancelled” was written across the face of each of them by an officer of the company; but the defendant failed to account for or pay over the proceeds to Holcombe, and absconded. This money—the proceeds of said “evidences of debt”—is the $72.31 alleged'in the second count of the indictment to have been embezzled by the defendant. These tickets or “evidences of debt” were merely orders on the treasurer of the car company- to pay certain sums to John St. Olair only, or at most a contract on tbe part of tbe company to pay said sums to St. Clair, with an expressed- stipulation that it would not pay, and would not be liable to pay, the money to any other person. It was, of course, entirely competent for the parties to make this stipulation, and thus embody it in the order or contract. Its effect was to limit the car company’s liability exclusively to St. Clair. The corporation ordered its treasurer to pay him, and him alone ; ancl in taking the paper he recognized, in a way that bound him contractually, that the only right he had under it was to demand payment to himseif on a contract to pay him, and him only, the amounts evidenced by the papers ; and whether the papers be regarded as an order for money, or as contracts to pay money, by their very terms they could never import any manner of liability to any third person. It is not questioned that the legal title to these evidences of debt was all along in St. Clair, and was incapable of divestiture out of him. But it is insisted that his delivery of the papers to Holcombe passed an equity into the latter,— vested an equitable title in him which gave him rights against the car company enforceable by an action in the name of St. Clair to his use. We do not think so. To so hold would be not only, by indirection, to emasculate the stipulation against a transfer of them, but directly, in substance and effect, to create a liability of the car company to Holcombe, against the expressed terms of the contract, upon which alone rested all liability on their part in the premises, even to St. Clair. We cannot go to this extent. We are constrained, in giving effect to the words “not transferable” in "instruments of the class involved here, to hold that no property of any character in" these tickets was' ever in Holcombe, but, to the contrary, that the entire property in them was all along in the defendant. The latter thus being, for all the purposes of this case, the technical and beneficial owner of these evidences of debt, the money collected by him on them became at once, and was, his money, and he could not be guilty of embezzling either the one or the other. In reality the only thing which inured to Holcombe out of the original transaction between him and the defendant was a promise o'n the part of the latter to pay him the proceeds of the tickets when collected ; and, however morally reprehensible defendant’s failure to comply with this promise may have been, it was not a crime. The trial court should have given the general charge for the defendant, as requested. The judgment of conviction is reversed. No legal conviction can ever be had on the facts of the case, and. a judgment will therefore be entered here acquitting and discharging the defendant.

Beversed and rendered.