Higbee v. State

• Decision Date: 20 September 1905
• Docket Number: 14,112
• Citation: 104 N.W. 748,74 Neb. 331
• Parties: OSMOS C. HIGBEE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

104 N.W. 748

74 Neb. 331

OSMOS C. HIGBEE v. STATE OF NEBRASKA

No. 14,112

Supreme Court of Nebraska

September 20, 1905

ERROR to the district court for Sarpy county: ABRAHAM L. SUTTON JUDGE. Reversed.

REVERSED.

Nelson C. Pratt and E. S. Nickerson, for plaintiff in error.

Norris Brown, Attorney General, and William T. Thompson, contra.

OPINION

SEDGWICK, J.

The Farmers Co-operative Shipping Association was engaged in buying grain at Gretna, in Sarpy county, and in shipping and selling the same. The defendant Higbee was in charge of the business as agent of this company. The George A. Adams Grain Company, of Omaha, was indebted to the Farmers Co-operative Shipping Association for grain, which the defendant as the agent of that company had shipped and sold to the Omaha company. The defendant, who is plaintiff in error here, was prosecuted upon a charge of embezzlement; the information containing two counts. Upon the first count he was found not guilty. The charge upon which he was convicted is the embezzlement of "a certain right in action, to wit, a certain indebtedness then due and owing by the George A. Adams Grain Company, of Omaha, Nebraska, to the said Farmers Co-operative Shipping Association, for grain shipped to said George A. Adams Grain Company by the said Farmers Co-operative Shipping Association, in the amount of twenty-eight hundred nine & 53-100 dollars ($ 2,809.53)."

1. The first contention made is that the indebtedness of the Omaha company to his employer was not within the meaning of the statute defining the crime of embezzlement and providing a penalty therefor. It is said in the brief: "The plaintiff is charged with embezzling a right in action, an indebtedness. Just how the plaintiff could obtain possession of an indebtedness we are at a loss to know." The language of the statute is: "If any officer, attorney at law, agent, clerk, or servant of any incorporated company or joint stock company shall embezzle or convert to his own use or fraudulently take or make away with or secrete with intent to embezzle or fraudulently convert to his own use without the assent of his or her employer or employers, or the owner or owners thereof, any money, goods, rights in action or other valuable security, or effects whatever, belonging to any other persons * * * every such person so offending shall be punished in the manner provided by law for feloniously stealing property of the value of the article so embezzled." Criminal code, sec. 121. The evidence in this case tends to show that the defendant as managing agent of the company was in the control of its business in buying and shipping grain, and in collecting the proceeds thereof for the company. In this capacity he sold grain to the Omaha company, and instead of receiving the money for the use of his employer as his agency contemplated, he caused the proceeds to be applied by the Omaha company to the adjustment of his speculations upon the board of trade. His contention now seems to be that he never had possession of the money, nor of any tangible thing that could be made the subject of embezzlement. Of course, if he had collected the money for his employer, as it was his duty to do, and then had without the owner's assent used it for his own benefit with intent to defraud the owner, there could have been no doubt that such action would have constituted embezzlement. The result reached by him was the same, so far as his individual business was concerned, as it would have been if he had first collected the money and used it in adjusting these speculations. At the common law possession was a necessary element of the crime of larceny, as it is by statute of embezzlement. The distinction between the two crimes depends upon the nature of the possession and the manner of obtaining it, and it would seem that a mere credit was not the subject of larceny at common law. It is within the province of the legislature to define crimes and provide punishment therefor, and to determine what action or conduct shall be deemed criminal and subject to punishment. The contention upon this point then depends upon the construction and meaning of the statute. It was, of course, competent for the legislature to make the act of defrauding his employer, by using the credits of the employer for the personal benefit of the agent without the assent of the employer and with the intent to defraud the employer, criminal, and to provide for the punishment of such act as embezzlement.

What is meant by the words "rights in action" as used in this statute? They are not the exact equivalent of choses or things in action. The term "chose (or thing) in action" is used in contradiction to a chose or thing in possession. It is used when the title to the money or property (the thing) is in one person, and the possession is in another. The word "rights" used in this connection is a broader term. The legislature seems to have contemplated that an agent might use a mere claim or demand in such a way as to deprive the owner of the thing claimed, and to appropriate it to his (the agent's) own use. To do this with intent to defraud, and without the assent of the owner, is made embezzlement by this statute. Unless the owner is deprived of the thing (the money or property) involved in the transaction, there can, of course be no embezzlement. McCormick v. Keith, 8 Neb. 142; Western White Bronze Co. v. Portrey, 50 Neb. 801, 70 N.W. 383. If his title to the property is not impaired, his right in action would still remain. Upon the trial the prosecution introduced evidence tending to show that the speculations upon the board of trade, in which these funds were used, were the individual transactions of the defendant. It was admitted that the transactions were carried upon the books of the Omaha company in the defendant's name. The defendant testified that in these transactions he was acting for his employer, and supposed at the time that the accounts were so kept. The jury must have found that he acted for himself in these speculations, and that his manipulation of the accounts of his employer was such as to cancel his employer's claim to the money as against the Omaha company, and so deprive his employer of the money owing by that company. The evidence upon this point is not entirely satisfactory, and the point is not discussed...