Smith v. State , 53 Tex. Crim. 117 ( 1908 )

I respectfully dissent from the opinion of my brethren.

Appellant was charged, as agent and employee of a private person, to wit: J.H. Wilder, with embezzling the sum of $55, which money had come into his possession and was under his care by virtue of said agency and employment.

The facts show that Wilder was engaged in the sale of musical instruments at Dublin, in Erath County, and had been so engaged for some years; that J.V. Haley and appellant were both working for him in the capacity of traveling salesmen, during the year 1906. At some time in the fall of 1906, Wilder shipped some pianos and organs to Tolar, Hood County, and rented a house and opened up a branch business there, or rather he made it a distributing point for sales of instruments made in the territory surrounding Tolar. Haley and appellant were his traveling salesmen in that territory, the instruments being shipped to Tolar in care of appellant. Witness had reports and settlements on all the instruments shipped to Tolar, except one organ for which he had neither money, notes nor other thing of value. Appellant never turned over to him any money for the organ. Wilder further testifies that Haley had told him that he had sold said instrument and delivered the money to appellant to be delivered by appellant to the said Wilder; that Haley never wrote witness anything about the matter, and that he (witness) had never heard of the transaction until about the 1st of December; that the organ in question was never charged to appellant on his personal account but was charged to him on the general stock-book. This witness paid all his salesmen's traveling expenses and salary when they were working as salesmen, as was appellant at the time of this transaction. This witness further states 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. 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 but required them to report to him and make settlements with him personally for any such sales, and that they usually came into the house at Dublin once per week to make settlements for sales that were made during that week. He said he never had any settlement concerning the organ in question and learned about December 1st that appellant had received the money for same, but he never delivered the money or its equivalent to him. Soon after learning that appellant had received the money, he met him in Dublin and asked him what he had done with it, and further asked him if Haley had in fact, given him the money, which appellant acknowledged and said that he took it with him when he went to Ft. Worth, and while there, was robbed. Mitchell, the bookkeeper for Wilder, at Dublin testified that he had been bookkeeper for Wilder at Dublin for a number of years, and had charge of the books during November and December, 1906. The books did not show that Wilder had ever received anything for this particular organ. That this organ and other instruments were shipped to Tolar to appellant to be sold for Wilder and at said time were marked on the stock-book showing to whom shipped. That same were not charged to appellant's account, but appellant's name was written opposite the name and number of the instruments shipped, on the stock-book, thus showing to whom said instrument had been shipped. That in their business they did not charge these instruments to the salesmen taking same out of the house other than mark their names on the stock-books opposite the instrument.

Haley testified that sometime in the early part of December, along about the 1st of the month, he was a traveling salesman of pianos and organs for J.H. Wilder of Dublin, Erath County, Texas; that prior to the 1st of November, 1906, Wilder had shipped several pianos and organs to Tolar, Hood County, and placed them in a rented storehouse for sale; that appellant was in charge of the house for said Wilder, and was also at the same time a traveling salesman for the sale of said instruments for their mutual employer Wilder; that they sold said instruments from wagons throughout the country to farmers, and other parties wishing to buy. That about the first of November, by consent of appellant, he took an organ from the house at Tolar, and sold it to a farmer, living near said town, and receiving himself the cash in payment for it. That on returning to Tolar after making the sale, the appellant, witness, and Cap Smith (also a witness in the case), were at their boarding house in Tolar. That appellant stated to witness that he was going into headquarters at Dublin at the 5 o'clock afternoon train, whereupon, he (witness) asked appellant if he would take some money to Wilder for him (witness) and thereby save buying a draft or money order for same; to which appellant assented, and thereupon witness turned over to appellant the sum of $55.25, to be by him delivered to the said J.H. Wilder. He further testified that it was the duty of each salesman to make reports of their own sales to Wilder at Dublin and to deliver to him whatever was received in exchange for musical instruments sold. This witness says he wrote Wilder the next day after the above transaction, but Wilder testifies he never received the letter.

The witness, Cap. Smith, testified that appellant stated to Haley at the boarding house that he would like to borrow some money from him, Haley. Haley told him he did not have any to loan, but stated he had some money belonging to Wilder, and appellant stated he was going to Dublin on the 5 o'clock train, whereupon Haley asked appellant if he would take the money to Wilder for him (Haley) and thereby save expense of buying exchange or money order. To this appellant agreed and Haley then gave appellant $55 and some cents.

Appellant testified that he was working for Wilder as was Haley; and that they were salesmen and testified practically as did Smith with reference to the borrowing transaction, except that he testified positively that Haley loaned him the money; that he did not know whose money it was at the time he borrowed it, but supposed it was Haley's, and told Haley that he would pay it back to him in a few days. That he went into the house at Dublin about a week after said transaction, and Wilder asked him about the money he borrowed from Haley. Witness told him that he had spent part of it and had part of it, and would pay Haley as soon as he got the money on some sales. That Wilder then told him that the money belonged to him, and for appellant not to pay Haley, but to pay it to him, Wilder; that Haley had not paid him for the organ he had sold. Appellant then told Wilder it was the first he knew of it being his money, and if such was the fact he would pay it to him and not Haley, and that he had that much coming to him, and to charge it to his personal account, which Wilder agreed to do. He further testified that he was not aware that Wilder had any interest in the money he had borrowed from Haley, until Wilder told him of it as above mentioned. That of this amount he had paid out for the benefit of Wilder, as traveling expenses, the sum of $15.25, and that this was taken into account when Wilder requested him to pay same to him for Haley, that he settled the balance by having it charged to his personal account, to all of which Wilder agreed in order that he might collect the debt due him. This is the case on the facts as made by both sides. The evidence excludes the idea that it was within the scope of appellant's employment to collect from another agent money or other property belonging to Wilder.

It is contended, among other things, that this evidence does not support a conviction against appellant for embezzling Wilder's money; that the relation of agent and principal did not exist so as to make appellant criminally responsible under any of the testimony. The statute provides that, "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. Now the question is, was the fiduciary relation existing between appellant and Wilder of such character under the facts and this statute, as would constitute one principal and the other agent in regard to the money received by appellant for Haley? The testimony is without contradiction that appellant was the agent, or traveling salesman of Wilder, his duty being to sell musical instruments and collect the money for his own sales, and pay over, personally, each week, to his employer Wilder. Nowhere in the testimony is there any claim asserted that appellant or any of the traveling salesmen, had the right to collect the money arising from the sales made by any other salesman of the principal, or to make settlements with the principal for any other sales made by salesmen, or to in any way assume the right of collecting or handling the money arising from sales other than those made by himself. In order to hold appellant responsible, under the statute, this money must have come into his possession by virtue of his employment as such salesman or agent of Wilder. Otherwise, he would not be guilty, for in our State and under our Penal Code no criminal responsibility arises except for violations of the plain letter of the statute. This question came before the court in the case of Brady v. State, 21 Texas Crim. App. 659, Judge Hurt delivering the opinion for the court. The court there said: "To constitute the crime of embezzlement under our Code, the conviction must be of money or other property of the principal, or employer, and it must have come into possession of the agent, or employee, by virtue of such agency or employment. Unless these two facts are proven, the conversion may be a crime, but it is not the crime of embezzlement. . . . To recur to our question: Did this money come into the possession of defendant by virtue of his agency or employment? Was the money thus in the possession of the defendant the money of Patterson? If these questions are to be answered in the affirmative, the conviction is right and must stand; otherwise not. We are of the opinion that the money was not collected by the defendant by virtue of his employment, and that the money converted was not the money of the principal, Patterson, for the reason that after the collection made by defendant, Dahlich's debt to Patterson still existed." Dahlich was the man from whom the money was collected and Dahlich owed Patterson a debt and defendant collected it, and was charged with its embezzlement. The facts showed it was not appellant's particular business to collect that money. The testimony in this case excludes the idea that appellant had the right to collect any money, except for sales made by him, and the only trust relationship existing between appellant and Wilder was as salesman to sell instruments and collect money for his own sales and for such collections and sales to personally account to Wilder. Nowhere in the record is there any intimation that any such trust relation between appellant and Wilder, his principal, as authorized him to receive, collect or handle in any way any money of Wilder's, except such as he collected for organs, or instruments sold by himself. It is laid down in the 15th volume of Cyclopedia of Law and Procedure, p. 494: "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 to the possession of the accused by reason of such employment." In note 15 to said text, there are a great number of cases cited to support the text: From Illinois, Kentucky, Massachusetts, Michigan, Missouri, Nevada, Pennsylvania, Washington and England; and among others from Texas, we find Loving v. State, 44 Tex.Crim. Rep.; 71 S.W. Rep. 277; Brady v. State, 21 Texas Crim. App. 659; Griffin v. State, 4 Texas Crim. App. 390. The decisions are so numerous in the footnote that I have deemed it unnecessary to include them.

On p. 991, vol. 10 of Am. Eng. Enc. of Law, second edition, we find this stated: "RECEIPT IN EXCESS OF AUTHORITY — 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 directions." In note 2, decisions are cited in support of the text. Among others, in the case of Rex v. Snowley, 4 C. P. 390, Parke, J. it was held, that a servant who was employed to lead a stallion, and who received a sum for the hire of same, which was less than he was authorized by his master to take, and appropriated it, was not within the statute, because his act was without authority, and the money, therefore, was not received by virtue of his employment. This case was qualified to some extent in Rex v. Aston, 2 C. K. 413, on the theory that as the servant was employed for the particular purpose of receiving hire for the service of that stallion, the fact that he departed from the price fixed would not take him out of the rule that he was acting as the agent within the scope of his employment, but in all the English cases they follow the rule laid down that, in order to make the party responsible for embezzlement, the money received and embezzled must have come to him within the scope of his employment. This seems to be almost the universal rule. Some of the cases have drawn a distinction as to what facts may or may not bring the agent within the fiduciary relation under the contract of the employment, but so far as I have been able to ascertain the statute makes a part of the definition of the offense that the funds must be received by virtue of the agency or employment; that money received in excess of that employment will not constitute embezzlement. This rule is not departed from in the Snowley case, supra but in the subsequent case of Rex v. Aston it was held that the decision was wrong, because the money was received by virtue of such employment or agency. The doctrine itself was not overruled, but it was held the law was improperly applied to the facts. The main proposition has been upheld in all the English cases so far as I have been able to ascertain. Rex v. Mellish, Russ R. 80; Rex v. Snowley, 4 C. P. 390, 19 E.C.L. 568; Rex v. Salisbury, 5 C. P. 155; 24 E.C.L. 502; Rex v. Hawtin, 7 C. P. 281; 32 E.C.L. 613; Reg. v. Wilson, 9 C. P. 27; E.C.L. 28; Reg. v. Harris, 6 Cox C.C. 363; Dears C.C. 344, as well as by the American cases, as follows: Griffin v. State, 4 Texas Crim. App. 390; State v. Johnson, 21 Tex. 775; Reed v. State, 16 Texas Crim. App. 586; Brady v. State, 21 Texas Crim. App. 659; The Snowley case was followed in Rex v. Thorley, 1 M.C.C., 343, and Rex v. Hawtin, 7 C. P., 281.

In Rex v. Harris, 6 Cox C.C. 363, it was said: Where a person employed as miller in a mill in a county jail, whose duty it was to receive and grind grain brought by persons with a ticket from the porter's lodge, and receive and account for money due for grinding, and who was prohibited from receiving grain without such a ticket in violation of his duty, and appropriated the money received for grinding it, a conviction of embezzlement was set aside, because he did not receive the money by virtue of his employment. "The question of embezzlement vel non has been with almost, if not entire, unanimity held to be a question primarily dependent upon the statute alleged to be violated. The breach of trust is also essential, and where there is no breach of trust or violation of confidence intentionally reposed by one party and voluntarily assumed by the other, there can be no crime, unless, of course, the statute should in express words cover such case. Therefore, the conversion of money by a bank depositor, to whom upon drawing his deposit, a greater sum was paid by mistake than the amount of his deposit, is not embezzlement. Commonwealth v. Hays, 14 Gray, 62; State v. Heath, 8 Mo. App. 199."

"Under the former English statutes it was necessary that the property should have come to the hands of the defendant `by virtue of his employment,' that is, it must have come into his possession in the ordinary course of his duties, or he must have had special authority to receive it. The nature, scope and extent of his employment must have been such as to authorize the receipt of the money or property embezzled, or he must have been specially authorized to that effect. Regina v. White, 8 Car. P. 742; Regina v. Townsend, Car. M. 178; Regina v. Masters, 3 New Sess. Cas. 326, same case in 2 Car. K. 930; Rex v. Smith, Russ R.C.C. 516; Rex v. Hughes, 1 Moody C.C. 370; Rex v. Batty, 2 Moody C.C. 257. And if he received the possession of the property without specific or general authority, but the taking was out of the scope of his service, he was not within the statute. Rex v. Thorley, supra; Rex v. Arman, Dears C.C. 575; Rex v. Salisbury, 5 Car. P. 155; Regina v. Wilson, 9 Car. P. 27; Rex v. Hawtin, 7 Car. P. 281; Rex v. Snowley, 4 Car. P. 390; Rex v. Becall, 1 Car. P. 310, and cases supra. This was held to be so, although the party paying him the money believed him to be properly authorized. Rex. v Hawtin, 7 Car. P. 281." "Many of the American Statutes contain, after the manner of the original English statute, the phrase, `by virtue of his employment.' And it is one of the essential elements of the crime that the agent or servant, clerk or bailee, received the property in the course of his employment; and this must be alleged and proved as well as that the property belonged to the master, or to the principal, and that the defendant appropriated it to his own use. Ex parte Hedley, 31 Cal. 108; Pulliam v. State, 78 Ala. 31; State v. Johnson, 48 Iowa 370; Commonwealth v. O'Malley,97 Mass. 584; People v. Burr, 41 How. Pr., 293; People v. Sherman, 10 Wend., 299; People v. Hennessey, 15 Wend., 147; People v. Dalton, 15 Id., 581; People v. Allen, 5 Denio, 76; Ricord v. Central Pacific R.R. Co., 15 Nev. 167; Johnson v. State, 9 Baxt., 281; Griffin v. State, 4 Texas Crim. App. 390, see same case reported in Lawson's Crim. Def., 909; State v. Johnson,21 Tex. 775; Reed v. State, 16 Texas Crim. App. 586; Bradly v. State, 21 Texas Crim. App. 659."

And it has been held further that this would seem to be true, even where the statute contains no such words; for the gist of this offense as distinguished from larceny, is the breach of trust committed by one occupying the fiduciary relation, and if there be no such relation, or if the property was not received with reference to that relation, but in an entirely different capacity, or outside of or in excess of such employment, then it is not embezzlement because there is no breach of trust or confidence. See Commonwealth v. Hays, 14 Gray, 62; same case reported in 74 Am. Dec., 662. And this limit is marked by gist of the offense which rests upon the particular character of fiduciary relation. So long as this relation is shown, the offense may exist; when it fails there can be no embezzlement.

There are a great many cases along this line in the note to Calkins v. State, reported in the 98 Am. Dec. p. 121, and 136, and 137. The facts of this case tested by the above authorities and propositions enunciated, would indicate that appellant receiving money from Haley, another salesman, did not occupy the fiduciary relations necessary to constitute him an embezzler of Wilder's money. If the testimony of Wilder, Haley and appellant, state correctly the fiduciary relation or the office of trust between appellant and Wilder, then appellant's only fiduciary or trust relationship was found in his authority as agent or salesman to sell musical instruments and collect the money, for such sales, as he personally might or did make. Nor am I of the opinion that the fact that the organs were shipped to Tolar and placed in a house under the charge of appellant, change such fiduciary relation or agency. If appellant had converted any of these organs or money for those he sold, while in his possession, it would have been within the scope of his agency, but when Haley took the instrument out from the house at Tolar, and sold it, it passed into the possession and agency of Haley, and out of the possession and away from the agency of appellant; and the testimony of Wilder, Haley and appellant all prove this, clearly. Appellant was not authorized to settle with or pay over money to Haley. Haley understood this to be so, for when he ascertained that appellant was going to Dublin, he requested him to take the money and pay it over for him, Haley, to Wilder. Haley, Wilder and appellant all recognized the want of agency on the part of appellant to handle that money as Wilder's agent, for it is shown by Haley, appellant and Wilder, that appellant did this not as agent of Wilder, but as an act of courtesy or accommodation to Haley. It seems to be settled by the Brady case, 21 Texas Crim. App. above quoted, that the debt due from Haley to Wilder still existed. If appellant was authorized to receive as Wilder's agent from Haley, then Haley's obligation to Wilder was discharged and his responsibility ceased. It occurs to me that this matter may be tested, in part at least, in this form: Suppose Wilder had sued Haley for the money turned over to appellant to be carried by appellant to Wilder. Could Haley have plead payment of the debt to Wilder by reason of the fact that he turned the money over to appellant to be carried to Wilder? The answer to this question must be in the negative. Haley had no authority to send money to Wilder, and thus discharge his trust. Appellant had no authority as agent of Wilder to receive it. Under the terms of his agency to Wilder it was Haley's business to settle personally with Wilder every week at the Dublin House, for his own sales. This he did not do, and there is no pretense that he did. He only sent it by appellant in order to save the trouble and expense of purchasing a postoffice order or draft. Appellant had no authority to receive Haley's sale money or settle Haley's matter with Wilder, and the evidence fully shows he had no such authority. So, upon the whole case, and the authorities cited, I am of the opinion that the receipt of the money by appellant from Haley and his accommodation or agreed accommodation to Haley would not bring him within his, appellant's scope of agency to and with Wilder. It was beyond his agency, in excess of his authority, and he was performing an act which was in no sense within the scope of his agency; it was in excess of and beyond that agency. If this is correct, then appellant was not guilty of embezzlement of Wilder's property. So believing the law to be, I am persuaded the judgment ought to be reversed.