Bell v. State

• Decision Date: 10 January 1916
• Docket Number: 18657
• Citation: 70 So. 456,110 Miss. 430
• Court: Mississippi Supreme Court
• Parties: BELL v. STATE

70 So. 456

110 Miss. 430

BELL v. STATE

No. 18657

Supreme Court of Mississippi

January 10, 1916

APPEAL from the circuit court of Jones county. HON. PAUL B. JOHNSON Judge.

W. D Bell was convicted of embezzlement, and appeals.

Appellant was indicted and convicted of embezzlement, the indictment charging that he collected from one Jenkins a premium on an insurance policy and converted the same to his own use. Jenkins never received his policy of insurance, and had appellant indicted. It is not shown by the evidence that appellant retained the money or used it in any way for his own benefit.

Reversed and remanded.

Hardy &amp Arnold, for appellant.

There is absolutely no testimony to support the finding of the jury. To concede for the moment that the appellant was the bailee of Jenkins there is absolutely no testimony to show that he unlawfully used the money, but all of the testimony shows that he used it as he should. Call him agent, bailee cashier or what not, the state must show that he embezzled the money before there can be a legal conviction. Mr. Jenkins knew the money must be sent on before he got his policy, and the testimony shows that this is exactly the use that he made of it. But in no sense under our statutes can this appellant be classed as a "Bailee." There was no obligation to return the specific things that were intrusted to him but there was an obligation to forward the money for another thing which was done. See Words & Phrases, Vol. 1, page 672, under heading "Bailee" and cases there cited.

Then unless it appears from the clear letter of the statute that this appellant was a "Bailee" he cannot be included by implication. The statute must be strictly construed in his favor. See West v. State, 70 Miss. 598; Wortham v. State, 59 Miss. 179; Johnson v. State, 63 Miss. 228; Stafford v. State, 44 So. 801; Foote v., Vanzant, 34 Miss. 40. And all the holdings of our court on this point are to the same effect.

Ross A. Collins, Attorney-General, for the state.

The appellant contends that no crime of embezzlement has been made out since he was acting as the agent of the insurance company and not of Jenkins in the transaction, but I submit that the facts show that the agent solicited the money for the premium from Jenkins and promised to deliver to him the policy in question and was therefore the bailee or agent for the said Jenkins and his conduct clearly comes within the terms of our statute defining embezzlement. Section 1136 of the Code of 1906.

The appellant's further contention is, that he is not got guilty of embezzling twenty-five dollars or over if guilty of anything, and therefore his sentence to the penitentiary is excessive. He attempts to show that the proceeds of the twenty-seven dollar check given to him by Jenkins did not, owing to the way he handled it, net him but twenty-one dollars and seventy-five cents. He says that he took this twenty-seven dollar check and gave it to Jenkins' son and received therefor twenty-one dollars and seventy-five cents in cash and another check for five dollars and twenty-five cents which he claims he never realized upon. It is clear, from the reading of the record, that the appellant's failure to receive the face value of the twenty-seven dollar check was due to no fault of...