Brewer v. State
| Citation | 3 So. 816,83 Ala. 113 |
| Parties | BREWER v. STATE. |
| Decision Date | 28 February 1888 |
| Court | Supreme Court of Alabama |
Appeal from circuit court, Sumter county; S. H. SPROTT, Judge.
Indictment of James Brewer, a mail-rider in the service of the United States, for the embezzlement of a sum of money in a registered letter, which was alleged to have come into his hands as agent of the sender of the letter. The defendant was convicted of the crime charged, and appeals.
J J. Altman, for appellant.
Thos. N. McClellan, Atty. Gen., for the State.
The record shows that the defendant was convicted of embezzling money which was alleged to have come into his possession by virtue of his employment as agent or servant of one Rainer which is made punishable by the statute as if he had stolen it. Code 1886, § 3795. This conviction was under the third count of the indictment, which operated, under our practice as an acquittal under all the other counts of the indictment. We confine ourselves, therefore, to a consideration of the charge made in this single count. The evidence showed that in September, 1886, Rainer had sent the sum of $395 in a registered letter, from a post-office in Choctaw county, to Cuba station, another post-office in Sumter county, through the mail service of the United States government. The defendant was the mail-rider between the two points, and the evidence tends to prove that, while thus engaged, he appropriated the money by fraudulently converting it to his own use. In our opinion, the defendant, under these circumstances, was not the agent or servant of Rainer, who could in no sense be said to be his principal or employer. He was not in the service of Rainer, but of the United States government, from which he received his appointment, and by whose official authorities only he was liable to be removed or deposed. The term "agent or servant," as used in the statute, imports the correlative idea of a principal, or master, and "implies employment,-service, delegated authority to do something in the name or stead of the principal,-an employment by virtue of which the money or property came into his possession." Pullam v. State, 78 Ala. 31; Code 1886, § 3795; 2 Bish. Crim. Law, (7th Ed.) §§ 352-354.
The circuit court erred in not giving the charge requested by the defendant, to the effect that, if the jury believed the evidence, they must find the defendant not guilty as to the third count in the indictment.
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