Smith v. State ( 1908 )

Appellant was indicted in the District Court of Hood County, for the offense of embezzlement and upon trial was convicted and he now appeals to this court.

The indictment, in substance, alleged the embezzlement of the sum of $55, the property of J.H. Wilder, which had come into the possession of appellant as the agent and employee of said Wilder and that said money was under his care by virtue of said agency and employment.

The facts show, in substance, that Wilder was engaged in the sale of musical instruments and that he lived at Dublin, Erath County, where he had been engaged in this business for some years. It further appears that appellant and one J.V. Haley were both working for him in the capacity of traveling salesmen during the year 1906, and their headquarters and place of business was at Tolar in Hood County, Texas. It appears that during the year 1906, Wilder shipped several pianos and organs to Tolar and placed same in a rented store there for sale. The following appears, in this connection, in the statement of facts: "That the defendant herein was in charge of said house for the said Wilder, and was also at said time a traveling salesman of said instruments for the said Wilder." It is further stated in the statement of facts, "That about the first day of November, 1906,by the consent of the defendant, he (Haley) took an organ out of the house at Tolar, Texas, which was under the control ofdefendant, and sold same to a farmer living near said town receiving cash in payment for same." It further appears that this was an Esty organ that had been shipped to Tolar by Wilder among a lot of other organs, for defendant to sell. About the day of the sale of the organ by Haley, the purchase price was delivered to appellant. Appellant told Haley that he was going into headquarters at Dublin on the 5 o'clock train that afternoon, and Haley asked him if he would take some money to Wilder for him, and thereby save buying a draft or money order for same, which defendant agreed to do. Thereupon Haley turned over to him the said sum of $55, to be by him delivered to said Wilder. Haley testified that he told defendant that the money was the proceeds of the sale of said organ, at the time he turned it over to him. Haley further testified: "That it was the duty of every salesman to report sales to the said J.H. Wilder, at Dublin, and deliver to him whatever was received in exchange for musical instruments." It appears that Wilder had reports and settlements on all the instruments shipped to Tolar, except the one organ in question for which he had neither received money, notes, nor other thing of value. Appellant never turned over to him any money for the organ. Wilder testifies that Haley had told him that he had sold this instrument and delivered the money to appellant to be by him delivered to him, the said Wilder. It appears further from the testimony of Wilder, that it was the duty of appellant, under his contract, as well as the duty of all other salesmen to report to him (Wilder) the sales they made, and to make settlement with him personally for such sales and to turn over to him, personally, the proceeds of such sales every week. But he says he allowed his salesmen a good deal of discretion, and permitted them to take notes, cash, cattle or other property in exchange for instruments sold. He also testified that soon after learning that appellant had received the money for this organ from Haley that he met him at Dublin and asked him what he had done with the money, and if, in fact, Haley had given it to him. Appellant acknowledged receiving the money from Haley, and stated that he took it with him when he went to Fort Worth, and while there he was robbed.

One Mitchell, bookkeeper for Wilder at Dublin, testified, that he had been his bookkeeper for a number of years and had charge of his books during November and December, 1906; that this organ and other instruments were shipped to Tolar consigned toappellant to be sold for Wilder and at the time of shipment, a notation was made on the stock book, showing to whom the goods were shipped. That these goods were not charged to appellant's account, but his name was written, opposite the name and number of each instrument shipped, on the stock-book, thus showing towhom they had been shipped; that in their business they did not charge these instruments to the salesmen taking same out of the house, other than to mark their names on the stock-book opposite the instrument shipped.

It was the claim and defense of appellant that he had borrowed this money from Haley, and that same was a personal loan from Haley to him, and that he had no knowledge that the money in question belonged to Wilder. On this question, the appellant testifies, as follows: "That he asked said Haley, if he had any money, and he replied that he did; that he then asked him if he would loan him $50, or $75, and he said he would; that the said Haley then counted out to him the said sum of $55 in bills, and asked him if they would be enough and he told him it would. That he did not know whose money it was at the time he borrowed same, but supposed it was Haley's and he told Haley he would pay it back to him in a few days; that when he went to the house at Dublin, about a week after said transaction, J.H. Wilder asked him what he had done with the money he had borrowed from Haley." He also says, in substance, that Wilder then told him that the money belonged to him, and for him not to pay Haley, but to pay it to him, Wilder, and that he then told Wilder that was the first he knew of it being his, and that he told Wilder then, to charge it to his personal account, and he agreed to do so.

The court gave an unexceptional charge in the case, in which he submitted every defensive matter arising under the facts, including, in substance, the only two special charges requested by counsel for appellant.

On motion for a new trial, counsel for appellant raised the question that the verdict is unsupported by the evidence, and that the facts will not sustain a conviction for embezzlement. This matter is raised in the fourth ground of his motion for new trial, as follows: "Because the verdict of the jury is wholly unsupported by the evidence in this, that before the jury would be authorized to convict the defendant, they must find from the evidence that the defendant, by virtue of his agency, was charged with the duty of receiving the particular money in question, when the evidence wholly fails to show that defendant, by virtue of his employment or agency under the said Wilder, was, at any time, chargeable with the duty of receiving money or property from the other agents and employees of the said Wilder, but on the contrary the whole evidence shows that he was not charged with said duty, but that each salesman was required to report to said Wilder on his own account, and if the said Smith undertook to deliver the money in question to the said Wilder for the said Haley, he did so, not under and by virtue of his employment with Wilder, and not because he was chargeable with the duty so to do, but as an accommodation to the said Haley." We do not believe that this contention can be or should be sustained. That the appropriation of the money was wilful and corrupt is not only affirmed by the verdict of the jury but is shown by the evidence, in our judgment, practically beyond controversy. Our statute on the subject of embezzlement, provides: "If any officer, agent, clerk or attorney-at-law, or in fact, of any incorporated company or institution, or any clerk, agent, attorney-at-law or in fact, servant or employee of any private person, copartnership or joint stock association, or any consignee or bailee of money or property shall embezzle, fraudulently misapply or convert to his own use, without the consent of his principal or employer, any money or property of such principal or employer which may have come into his possession or be under his care by virtue of such office, agency or employment, he shall be punished in the same manner as if he had committed a theft of such money or property. (Article 938, Penal Code.)

The question arises then, under the facts of this case, did the money in question come into the possession of appellant by "virtue of such office, agency or employment?" The affirmative of this, we think, under the evidence is indisputable. The practically uncontradicted evidence shows that appellant was in charge of the business at Tolar and in custody and control of this organ by virtue of his employment. It is shown by the evidence that when the organ was taken from the building by Haley, that it was done by appellant's consent. It is shown that this organ, as well as other property at Tolar had been charged upon the stock-book as being in possession of appellant. Haley (the man who took the organ from the possession of appellant by appellant's consent), returns with the money, representing the value of the organ, and, knowing the employment and relation of appellant, that he was in control of the business at Tolar as the agent of Wilder, knowing that he had received the organ from appellant and by his consent, and the trust relation and agency between appellant and Wilder, delivers the money, $55, to him for the purpose of being transmitted and paid to Wilder. Was such receipt of the money by appellant by virtue of his office, agency or employment? We think it must be so held. While there are some expressions in the opinions of this court which might, without careful analysis, seem to lend some support to the contrary of the view, here expressed, it is not believed that, as applied to the facts of this case, they are in conflict with the rule here laid down. In the case of Brady v. State, 21 Texas Crim. App. 659, Judge Hurt lays down this rule: "To constitute embezzlement under the Code of this State, the conversion must be of money or other property of the principal, or employer, and it must have come into the possession of the agent or employee by virtue of his agency, or employment." And, as applied to the facts of that case, he holds, in substance, that no such relations were shown. In that case it seems that the appellant presented Dahlich a bill or account against him, in favor of his employer (Patterson), for the price of a bale of cotton. It seems that Dahlich knowing the bill to be due and owing to Patterson, and knowing that defendant was or had been in the employ of Patterson, and believing defendant authorized to collect the money, paid it to him; but it appears, from the testimony of Patterson, that Brady was not authorized to present the bill or collect said money, and his collection of same was without any authority from him. Quoting from the facts, as they appear in the opinion, we find the following: "I never authorized him to collect this money and he had no authority to receive it.He acted outside and beyond his employment by me." Clearly in any case where the money was received outside of and beyond the terms of employment, it cannot be held that it came into the possession of the agent by virtue of his office, agency or employment.

A proper solution of the decision in this case can only be arrived at by a fair and reasonable construction of our own statute, having in mind the crime denounced by it, and its proper constituent elements. It was said by Judge Winkler, as far back as 1878, in the case of Griffin v. State, 4 Texas Crim. App. 390: "The only safe guide in determining what constitutes the crime of embezzlement, and what persons are amenable to the charge, is to be found in our own code and statutes, and in the adjudications thereupon. Decisions of other States are to be consulted with great caution, in view of the very diverse character of their enactments on this subject." We think our statute was intended to include and embrace cases where money was received by virtue of the express terms of the employment or agency, or where such money was received by virtue of the implied authority of the agent, or the authority fairly and reasonably resulting from the express terms of his employment or agency, and that the better view is, that where such money was received by authority, either direct, or such as might be reasonably implied from the situation of the parties and their course of dealing, having in view their position and attitude and the confidential nature of their relations, that in every such case it ought to be held that such money or property was in the care of such agent by virtue of such office, agency or employment. In other words, a reasonable rule of interpretation ought to be employed in testing this statute. Such a rule, if it may fairly be adopted, having in mind the language of the code ought to obtain, as would discourage defalcation and protect the employer and society. It ought not to be required by the State that in prosecutions for embezzlement that it should be in peril of sustaining defeat in a just prosecution, because of some technical lack of specific authority in respect to some particular act, if under all the circumstances such authority might reasonably be implied and found as a fact by the jury in the light of the relation existing between the parties. To hold any other rule would frequently, if not universally, make it impossible to convict in the most flagrant case of embezzlement. If we only suppose a bank cashier, collector, bookkeeper, clerk or agent to have stolen the bank's money, if in such case a defendant could defeat a prosecution on the claim that the particular act was somewhat beyond the precise and express limits of his particular duties, though the money and funds in fact, came to him according to the customs and usages of the institution, by the color of his authority and by means of his employment, the result would be to render the statute a vain and foolish and idle thing. Nor do we believe there is any well considered authority holding to the contrary. Under the old common-law system in some jurisdictions, where the shadow was more important than the substance, and where highly technical rules seem to be the delight of the profession such a doctrine did once obtain.

In discussing the question of receipts in excess of authority, the following appears in the 2nd edition of the 10th Am. Eng. Enc. of Law, p. 991: "Some courts have held that it is not embezzlement under such a statute for a servant, agent or other person to convert property, if in receiving the same he acted in excess of his authority, or contrary to his master's or employer's direction." This is supported, among other cases, by the case of Rex v. Snowley, 4 C. P., 390; 19 E.C.L., 436, Parke, J. It is also stated that this case was followed in two other English cases cited by the author, but the author says: "Other courts have taken a different view and have held that a man may receive property by virtue of his employment or in the course of his employment within the meaning of such statute, though in receiving it he acts in excess of his authority." This rule is supported by many English cases, one of which in express terms overrules the earlier case of Rex v. Snowley. The only cases cited in America by the author of this work are in support of the doctrine that if the property was received by virtue of the agent's employment, or in the course of his employment, that such receipt was in the meaning of the statute, though in receiving it he acts in excess of his authority. Ex parte Hedley,31 Cal. 108; Kerr v. People, 110 Ill. 629; S.C. 51 Am. Rep. 706. This doctrine is a reasonable, just and fair rule, and seems to be well supported by authorities.

Nor do we understand that the rule laid down in the 15th Cyclopedia of Law Procedure, p. 494, is out of harmony with the views here expressed. On the contrary, as we understand the author, he expressly affirms the construction which we here place on his statute. In Sub. F, p. 493, the author says: "If a servant, clerk or agent has merely the custody of the money or goods which he feloniously appropriates, the offense is larceny; if he has the possession, it is embezzlement. Under the English statutes and those of some of the United States, it is held that the property embezzled must have come into the possession of the servant from one other than the master, for if it has first come into the possession of the latter, the conversion by the servant is larceny and not embezzlement; but the weight of modern authority is to the contrary." The author also lays down the rule which is in strict harmony with our statute: "In order to constitute embezzlement the accused must occupy the designated fiduciary relation, and the money or property must belong to his principal and come into the possession of the accused by reason of such employment." The author quoted also, cites with approval, the case of Rex v. Beacall, 1 C. P., 454; 12 E.C.L., 265, which says: "If a servant receives money on his employers' account and embezzles it, he is guilty of the felony, although they had no right to it, and was a wrongdoer in receiving it."

The only case we have found which by its language might seem to be out of harmony with the view here expressed, is the case of Goodwyn v. State, 64 S.W. Rep. 251. In that case, Goodwyn was indicted for embezzling $29 the property of N.P. Griffin, who was justice of the peace. It seems that Griffin, the justice of the peace, gave certain money to one Zulch to hand to Goodwyn, to be delivered to the county treasurer of Madison County. In the opinion, this language appears: "Appellant's fourth proposition is: ``The money was not the property of Griffin, nor of Zulch, but the proof showed it belonged to Madison County; and, for want of proof of Madison County or E.E. Day, its treasurer, the court erred in failing to instruct the jury to return a verdict of acquittal." Now, at first blush this might seem to be analogous to the case here, and there might seem to be some plausibility in the contention that the money here charged to have been embezzled, in fact, belonged to Haley who had given it to appellant to be delivered to Wilder. Judge Brooks evidently thought it unnecessary to state the grounds upon which he held in that case, that the money belonged to Griffin, and not to the county. A moment's reflection, it seems to us, should be sufficient to disclose the difference of the cases. Griffin was a public official in Madison County; his relation to the county was personal and due to his election and qualification as an officer of that county; he had no authority to pay funds or money belonging to the county to any one except some person authorized by law to receive it; and therefore when he delivered the money to someone else to be delivered to Madison County, such money remained his money and continued his property and never was the money of Madison County until it reached the treasurer of said county.

We believe that the court did not err in overruling appellant's motion for a new trial, and that under the facts as here presented, the charge of the court was sufficient, and that the verdict and judgment were abundantly sustained by the evidence. So believing, the verdict and judgment of the court below ought to be and is in all things hereby affirmed.

Affirmed.