State v. Snell , 9 R.I. 112 ( 1868 )

Dureee, J.

The defendant moves for a new trial upon the ground that the verdict was against the weight of the evidence, and against the evidence. The verdict can only be supported, if at all, upon the second count of the indictment, there being in our opinion, a material variance between the first count and the proof.

The second count charges that the defendant, on the 20th day of December, 1866, at, &c., “ being then and there employed as the agent of one Henry Pinkham, did by virtue of his said employment, then and there, and while he was so employed as aforesaid, receive and take into his possession certain bank bills of the amount of nine hundred dollars, and of the value of nine hundred dollars, for and in the behalf of the said Henry Pink-ham, and said bank bills, did then and there fraudulently and feloniously embezzle,” &c.

To support the verdict on this count, there should be evidence that the defendant was the agent of Pinkham, that as such he received said bank bills for and in Pinkham’s behalf, and embezzled them.

It appears by the evidence as reported, that the defendant and Pinkham were copartners in the nursery business from the spring of 1865 to March 30th, 1866, when the partnership was dissolved; that after the dissolution, the defendant continued in possession of the property, and that in the notice of dissolution, it was stated that the business would be conducted and the bills paid by him. ' It appears that the partnership was indebted by note to Wilder & Baker, for trees, and that when said note matured, or was about to mature, the defendant told Pinkham that if he would endorse his note, he would raise money to pay the Wilder & Baker note ; that Pinkham told the defendant he wanted a bill of sale, and the defendant gave Pinkham a bill of sale dated June 7,1866, of certain trees and vines, being, as we infer from'the evidence, trees and vines which had belonged to the partnership ; that the note was made on the same day for $1,250 by the defendant, payable to Pinkham, and by him endorsed ; that on this note the defendant got from one Henry O. Dorsey money which he used in taking up the Wilder & Baker note, and, as was understood, the balance, about fifty dollars} he retained for his own use.. It also appears that there was no change in the possession of the property consequent upon the bill of sale, and that the defendant was authorized to sell the trees and vines under the bill of sale, and do what was necessary to close up the business, and pay the expenses, bills, and the note endorsed by Pinkham ; and that Pinkham told the defendant he would give him all that was over, and, when these were paid, would give up the bill of sale; that it was understood that when the bills were paid and notes taken up, that the bill of sale and the title to the property should be surrendered to the defendant; that the attorney who drew the bill of sale told the defendant he must pay the note first, and that if he appropriated the money otherwise it would be a State Prison offence. Pinkham testified, the “ defendant said when he got the money collected he would pay it over to me. I told him he could do so, or pay it into the First National Bankand again, “ I told Snell he could pay the money collected to me, and I would pay it into the bank, or he could deposit it in bank himself.” The ¿ote was left at the First National Bank.

The evidence further shows, that the defendant admitted having sold about $900 worth of trees, and produced his book, to Pinkham and his attorney, the latter testifying that he thinks the amount sold figured over $950 ; that he had collected a considerable portion of this amount; according to said attorney’s testimony, he admitted that he had collected over $900; that he left the State and went to New York, without having paid the note endorsed by Pinkham ; and that in New York he told both Pinkham and his attorney that he had no money.

We think the evidence does not show such a relation of principal and agent, between Pinkham and the defendant, as warrants the verdict under the second count of the indictment. The defendant had been a copartner of Pinkham, and after the dissolution of the firm, was left in possession of the property to close up the business. He afterwards gave Pinkham a bill of sale, but there was no change in the possession of the property. He was to sell the property, and out of the proceeds thereof to pay certain debts for which he, as well as Pinkham, was liable, and if anything was left he was to have it. The business continued to be his business as well as Pinkham’s. Indeed, Pink-ham testified: “ I knew, and did not object to his conducting the business in his own name, because I thought it would be for his advantage, as he wished to continue in the nursery business.” The defendant thus acted for himself, as well as for Pinkham, in selling the property. He' also received the proceeds of the sale for himself, as well as Pinkham. By the understanding between him and Pinkham, those proceeds were to be used for the payment of debts for which he, as well as Pinkham, was liable. If we rightly understand the relation between them, even Pinkham could not have properly used those proceeds, if they had been paid to him, as his own, without paying the debts. In one view, the defendant had the greater interest in them; for if anything remained after paying the debts, be was to have it.

We therefore, think that the defendant is not proved, either to have been the agent of Pinkham, in' the simple sense in which the word should be held to have been used in the indictment, or to have received the money, which he received, as such agent, for and in behalf of Pinkham, inasmuch as the money was to be used primarily for a purpose in which he himself had, in a legal point of view, as great an interest as Pinkham, if not a greater. We tbink the bill of sale given by the defendant to Pinkham must be regarded simply as security to the latter for his endorsement, and perhaps also for his liability for the firm debts, and that it did not so essentially change the relation between them that the defendant thereafter became the mere agent of Pinkham, without any common interest with him in the property. Consequently, we hold that the charge contained in the second count of the indictment was not sufficiently proved by the evidence, to warrant a verdict of guilty against the defendant.

'Whether or not the evidence fails to support the verdict in any other respect than those we have considered, we deem it unnecessary to determine.

The defendant also moves for a new trial on account of alleged errors in two rulings, and in the charge of the Court of Common Pleas, to which he has excepted.

1. We think the ruling covered by the first exception was erroneous — there being a material variance between the proof and the first count of the indictment. But we do not think the error is a sufficient ground for a new trial, for the reason that the verdict is general, and, in our opinion, the indictment being framed as it is, no verdict can be rendered on the first count which cannot also be rendered on the second, and in regard to the second count, the ruling was immaterial.

We also think the charge of the court, as reported in connection with the report of this ruling, was erroneous, unless qualified in some portion of it which is not reported It was not the duty of the jury to find the defendant guilty, if they found he received money for the specific purpose of paying the note and did not pay the same, unless they further found that, being the agent of Pinkham, and having received the money as such, he failed to pay the same in consequence of some fraudulent use or conversion of the money.

2. We think it was competent for the government to prove value in the bank-bills received by the defendant, if any were received by him as charged, from circumstances or by his own admissions, as well as by testimony specifically introduced for tbat purpose. We think, therefore, that the court rightly refused, in view of the testimony, to charge according to the de - fendant’s request in the second exception.

But the court is reported to have charged the jury in the same connection, that “ the testimony being that said defendant admitted he had sold from eight to nine hundred dollars worth of trees, -wasproof sufficient, to show that defendant had received bank-bills and the value thereof.” This, taken strictly as reported, was error ; the sufficiency of the testimony as proof on those points being matter for the jury to pass upon. We remit the case to the Court of Common Pleas for a new trial.

New trial granted.