Miller v. State

• Decision Date: 23 July 1884
• Citation: 20 N.W. 253,16 Neb. 179
• Parties: HENRY MILLER, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 253

16 Neb. 179

HENRY MILLER, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 23, 1884

ERROR to the district court for York county. Tried below before NORVAL, J.

Judgment reversed, the verdict set aside, the prosecution dismissed, and plaintiff in error discharged.

France & Harlan, for plaintiff in error.

Sedgwick & Power, for defendant in error.

OPINION

COBB, CH. J.

The plaintiff in error was indicted, tried, and convicted in the district court in and for York county for the crime of embezzlement.

A large number of exceptions were saved in the court below, and the rulings of the court thereon are assigned for error in this court; but it is deemed necessary to revert to but one of them for a proper disposition of this case.

The indictment charges that the plaintiff in error, as the agent of the Marseilles Manufacturing Company, etc., certain money of the amount and value of sixty dollars, etc., belonging to said Marseilles Manufacturing Company, did unlawfully fraudulently, and feloniously embezzle and convert to his own use without the consent of said company, etc.

It seems, from the bill of exceptions, that the Marseilles Manufacturing Company were engaged in manufacturing wind-mills, pumps, etc., in the state of Illinois, and selling them, through agents, in this state. The firm of Miller & Miller, of York, one of whom was the plaintiff in error, were the agents of said company at the last-named point, and it was money received by the firm of Miller & Miller for wind-mill property sold by them as agents of the Marseilles Manufacturing Company that plaintiff in error was charged. The written contract of employment and agency between the said company on the one part and the said firm on the other part, was introduced in evidence, at the trial, on the part of the prosecution. This contract is divided into seventeen articles. I copy the whole of article 9:

"ARTICLE 9. To remit to the said party of the first part the proceeds of each and every sale as early as the day following the delivery of the machinery to the purchaser. If the said sale was for all cash the full commissions, as per Article 3d, may be retained; or, if a time-sale, the full settlement for the same shall be remitted, less the proportion of commissions due on the cash received; the balance of the commission shall be due pro rata as the cash is paid on the notes....