Lawson v. State

• Decision Date: 16 May 1921
• Docket Number: 21617
• Citation: 125 Miss. 754,88 So. 325
• Court: Mississippi Supreme Court
• Parties: LAWSON v. STATE

88 So. 325

125 Miss. 754

LAWSON v. STATE

No. 21617

Supreme Court of Mississippi

May 16, 1921

EMBEZZLEMENT. Proof of fiduciary relation necessary.

Under indictment for embezzlement, proof of a fiduciary relation must be made before conviction lies for appropriating funds and where the state's evidence shows no agency or relation of trust, but shows contractual payment of funds by owner to contractor, held, that embezzlement is not proven and accused should be discharged.

HON. E D. DINKINS, Judge.

APPEAL from circuit court of Panola county, HON. E. D. DINKINS Judge.

B. T Lawson was convicted of embezzlement, and he appeals. Reversed and appellant discharged.

Judgment reversed, and appellant discharged.

L. A. Smith, for appellant.

Embezzlement involves the following elements to make out the statutory crime: 1st. It must be shown that the thing converted or appropriated is of such a character as to be within the protection of the statute. 2nd. That it belonged to the master or principal. 3rd. That it was in possession of the accused at the time of the conversion, so that no trespass was committed in taking it. 4th. That accused occupied the designated fiduciary relation. 5th. That his dealing with the property constituted a conversion of it. 6th. That there was a fraudulent intent to deprive the owner of it.

The relation with reference to the two thousand one hundred dollars, if it be not taken to be the first payment on a contract to erect the building, thereby becoming at once the property of Lawson, the appellant, then at most it was merely a loan to him to enable him to finance the purchase of lumber, and in either event he cannot lawfully be convicted of embezzlement on account thereof. It would be imprisonment for debt, as prohibited by section 30 of our Constitution.

Corpus Juris, page 422, volume 20, says: "If the relation between the prosecutor and accused with reference to the money or property received or held by accused is merely that of debtor and creditor, as where one employed as agent or broker is authorized to mix money received by him with his own, accused is not guilty of embezzlement in using the money for his own benefit. That same work cites Clark v. State, 61 Tex. Cr. 539, 135 S.W. 575. In that case the work was to be repairs on the house of the prosecutor, who took a note and lien to secure payment of the note for the advancement made; in the instant case no note was taken and no contract lien, because our laws provide a statutory lien. That is the only difference in the two cases. One would be rather surprised, anyway, to find another case like this one in the law books, does it not appear so? Hence an exact precedent need not be looked for. It appears extraordinary that facts like these should be made the basis of criminal prosecution, and, without doubt, if the Como Church had taken a bond from Lawson for the faithful performance of the contract they would be suing instead of prosecuting.

The nearest to this case that can be found by the author is the above case and also the following: "Where accused agreed, in consideration of a certain sum to endeavor to secure a loan for prosecutor and to return the sum so paid if he failed to procure the loan, his failure to return that sum upon failing to procure the loan did not constitute embezzlement but merely a breach of contract." Johnson v. State, 102 Ark. 139, 143 S.W. 593. Statutes making it a crime fraudulently to embezzle and convert trust money do not apply to a case where money is advanced as payment on a contract which the party fails to perform, even tho, he may have intended not to perform the same when he appropriated the money. Keeler v. State, 4 Tex.App. 527.

The only trust in this case was that the prosecuting witness trusted that Lawson would perform his contract, trusted his word, but every time a trust in the word or promise of another is disappointed, a crime does not eventuate. That is not the kind of trust the law intends. The fact of the trust itself must be proven beyond a reasonable doubt, clearly, definitely, and to a moral certainty. That was not done in this case, and the author contends that it is very, very, doubtful if the evidence makes out a corpus delicti. Embezzlement is a criminal breach of trust, but every breach of trust is not embezzlement The statutes were not intended to cover every breach of trust, nor even every fraudulent breach of trust, and render it a criminal offense. 20 C. J. 423, and authorities cited in Note 98.

The statutes defining and promoting embezzlement like other penal statutes, are to be strictly construed, and no one can be punished under them, however grevious his wrong, who is not fairly comprehended within their precise language. It is not enough that he may come within the spirit and intent, 20 C. J. 439 and note, citing authorities.

The indictment charged that appellant was the servant or agent of the Como Colored Methodist Church. He was nothing of the sort, he was a contractor who contracted to build a certain building for a certain sum, payable in a certain way, and to complete the work in a certain time. Otherwise, he could and doubtless did have other contracts on which he was working and his time and labor and means and methods were under his own direction and of no one else. A servant is one in the employ of another, where the person so employed is under the control and direction of the employer, and whose duty it is to obey the latter in the performance of the particular service at all times, and in every particular. Peo v. Treadwell, 69 Cal. 226, 10 P. 502. An agent is one to whom authority has been delegated to act for and in the name of another, and who is not under his employer's immediate control. In the instant case, appellant was not an agent because he received the money and as an advance payment on a complete contract bottomed on two necessities, material and labor as well as manager besides. All these he was to furnish in his own way without direction or control from the Como Church in any shape, form or fashion, and the job was a turn key job, and Lawson was not working as an agent of the church, but as an independent contractor, representing himself directly, and not acting on delegated authority from the church to follow their ideas and plans and procedure in the erection of the building, but his own. He was to build a church complete; they to pay for it. Each independent and only obligated to each other under the law of contract. Lawson had no authority to commit them and they had none to commit him; neither had the right to make or discharge obligations for the other; neither had any right to direct or control the other in the performance of their obligations to each other. They could sue for breach of contract and that alone.

The use of the alternative words, servant or agent, and the confusing of the statute embracing agents or servants with that providing for the receiving of something on contract were confusing to the jury and the motion of appellant that the district attorney elect under what head he was prosecuting and thereby make the issue definite and enable him to put his proof on intelligently should have been sustained. It was overruled. 20 C. J. "Embezzlement being a statutory offense the sufficiency of the indictment is to be tested, not by the rule of the common law, but by the requirements of the particular statute upon which it is bottomed. An indictment containing in one count so much of the language of two sections of the statute, of embezzlement as to leave it uncertain which of two different crimes of embezzlement is charged is insufficient." State v. Messerger, 58 N.H. 348. Where each count of the indictment leaves it doubtful of which of two crimes defendant is charged, the indictment is demurrable. Com v. Pratt, 137 Mass. 98. The trouble in the instant case was that the indictment contained two charges in the alternative, and the proof put forward another one, and defendant was in the midst of confusion, worse confounded, while the court would not clarify matters by requiring the state to elect.

H. Cassedy Holden, Assistant Attorney-General, for appellee.

The essentials of the crime of embezzlement are properly stated in the brief of counsel for appellant. They are: First. The thing converted must be within the statute. Second. It must have belonged to the party toward whom the accused occupied a fiduciary relation. Third. That it came into possession of the accused lawfully. Fourth. That...