State v. Higgins

• Decision Date: 31 March 1792
• Parties: THE STATE v. HIGGINS.
• Court: North Carolina Supreme Court

1 Mart., 62

THE STATE

v.HIGGINS.

SUPERIOR COURTS OF LAW AND EQUITY OF NORTH CAROLINA

March Term, 1792.

Where a clerk to a merchant, whose store he attended, had sent goods from, the store to a person at a distance with directions to sell them, and he had not communicated this transaction to his principal or any of his other clerks, nor made any entry of it in the books, on an indictment under the Stat. 21st. Hen. 8, ch. 7, (See 1 Rev. Stat., ch. 34, sec. 19,) the Judges differed on the question whether he could be convicted under the statute, but agreed that he might be convicted of felony at the common law. Upon the conviction at common law, Judgment was arrested, but upon what ground does not appear.

Indictment on the 21 Hen. 8, 7, 188. It appeared in evidence that the prisoner was a clerk to the prosecutor (a merchant) whose store he attended: that he had sent a parcel of goods from the store, to a person who resided at a distance, with directions to sell them: that he had not communicated this transaction to the prosecutor, or any of his other clerks, and had made no entry of it in the books.

1. Because he stood not to the prosecutor, in the relation of a servant, which the statute requires, and the indictment describes.

2. Because the goods embezzled came not to his hands by a delivery of the nature of that described in the statute, and the indictment.

I. They said that the words of a statute are to be taken in their ordinary and most known signification, not so much regarding the propriety of grammar as their general and popular use: and cited 1 Comm., 59.

Now the statute requires that the offender be a servant. Perhaps this word in its most extended grammatical sense, may include every person laboring for another, and receiving hire or payment. In its ordinary and popular signification, it reaches no farther than family domestics, and personal attendants. The Painter who draws my picture, the Surgeon who pulls out my tooth, the Taylor who makes my clothes, the Clerk who writes in my office, or attends to my store, are in the first sense my servants; they all labour and are employed by me, and receive payment. Yet were I to describe them by the appellation of my servants, I would not be understood to mean them; or, if I was, I should be censured for giving them an appellation which in the general and popular acceptation of it is confined to persons of an inferior rank.

A celebrated crown law writer, after speaking of the statute upon which the prisoner is indicted, and the 3 & 4 Will. & Mar., 9, says " to the foregoing larcenies, by breach of trust, by MOENIAL servants, and lodgers, the Legislature has added two others," &c. 1 Hawk., 139, sect. 17. He certainly understood that the servants to which the statute relates, are only such as are mœnial, who live intra mœnia within the walls, in other words DOMESTIC servants.

The author of the commentaries, after mentioning mœnial servants, apprentices and labourers, says " there is a fourth species of servants, "if they may be so called: Stewarts,

FACTORS and bailiffs." 1 Comm., 427: which shows that, in his apprehension, the epithet of servants, in ordinary and popular use, is not applicable to Stewarts, Factors, &c.

The same writer, in the next page, says, "a master may by law, correct his apprentice or servant." Does he mean that a gentleman could flogg his Stewart, or a merchant his factor? Certainly no.

If the rule of construction, which we have laid down from the commentaries, be a true one: and if the word servant, in its common and popular use, does not comprehend that description of persons, employed in the capacity in which the prisoner attended the affairs of the prosecutor, it follows that he did not stand to him in the relation contemplated by the statute.

This construction would be the true one in ordinary acts, but this is a penal statute—one penal in the highest degree. Penal statutes must be construed strictly. 1 Comm., 88.—Consequently should the word servant be restrained to its ordinary signification.

II. The statute confines the things which may be subject of the offence to such as caskets, jewels, money, goods and chattels, as are delivered to servants safely TO BE KEPT to the use of their masters or mistresses.

The evidence here is of goods delivered TO BE SOLD.

AND I CONTEND THAT THIS CASE IS ALSO WITHIN THE WORDS OF THE ACT. THE WORDS MASTER AND SERVANT, ACCORDING TO THEIR POPULAR USE, IMPLY A CERTAIN RELATIONSHIP, AND WHEREVER THAT RELATIONSHIP IS FOUND, THERE IS PROPERLY A MASTER AND SERVANT. THIS RELATIONSHIP CONSISTS OF THE RIGHT OF SUPERIORITY AND COMMAND ON ONE SIDE, AND THE DUTY OF SERVICE AND OBEDIENCE ON THE OTHER, AND THIS CERTAINLY EXISTS BETWEEN A MERCHANT AND HIS CLERK. THE NATURE OF THE SERVICE IS AN IMMATERIAL CIRCUMSTANCE; FOR WHETHER A MAN ASSUME THE CARE OF A STABLE OR STORE, THE BUSINESS OF A GROOM OR CLERK, HE IS STILL A SERVANT; IF HE HAVE TAKEN UPON HIMSELF THE DUTY OF OBEDIENCE, AND GIVEN THE RIGHTS OF AUTHORITY TO ANOTHER. THE RIGHT TO COMMAND, THE OBLIGATION TO OBEY, IS EQUAL IN BOTH CASES. THE TIME AND SERVICE IN BOTH INSTANCES EQUALLY BELONG TO THE HIRER. THE CONTRACT WHICH PRODUCES THE RELATIONSHIP, IS THE SAME, AND THEREFORE THE RELATIONSHIP ITSELF IS THE SAME. THE POLITENESS OF MODERN TIMES IT IS TRUE, HAS NOT OFTEN APPLIED THIS TERM TO MERCHANTS' CLERKS, SOME OF WHOM ARE OF GOOD FAMILIES, AND WOULD RESENT THE APPELLATION: BUT THIS BY NO MEANS PROVES THAT THEY ARE NOT AS CLERKS, SUBSTANTIALLY SERVANTS, AND THEREFORE STRICTLY WITHIN THE MEANING OF THIS ACT.

THE TERM SERVANTS, IN COMMON LANGUAGE, IS VERY SELDOM APPLIED TO APPRENTICES TO MERCHANTS, AND TO SEVERAL KINDS OF ARTIFICERS; YET IT NEVER HAS BEEN DENIED, I BELIEVE, THAT THEY ARE PROPERLY SERVANTS, AND BUT FOR THE EXPRESS EXCEPTION, WOULD, AS SUCH, BE WITHIN THE ACT.

THE VERY EXPRESSION, &QUOTMœNIAL servant," which is very common, implies that there are servants of a different kind, and otherwise the epithet mœnial, would be insignificant and useless.

The word servant, is used in the act without any epithet to qualify or limit its meaning, and yet it is contended that this general term, which applies equally to all kinds of servants, shall be confined to one kind only, to-wit, mœnial servants. Had such been the intention of the Legislature, that common expression must have occurred to them, and would certainly have been adopted. I admit that the

mechanic to whom we send a job, is not our servant, nor do the principles for which I contend, imply that he is. There is no authority on one side, no subjection on the other. The mechanic is employed, not directed. His time is his own, not ours. He may postpone our work to make room for another's. The relationship between him and us supposes no superiority on our side, and therefore it is not the relation which exists between master and servant.

As to the second point,

The goods it is true, were entrusted to the prisoner to be sold, but they were also in his custody to be kept till the sale, and at the time of embezzlement they were in his keeping, not having then been sold. His authority to keep had not then expired; he therefore held them under that authority, and therefore his case is within the act.

'Till a fair purchaser offered, his authority was merely to keep.

Neither of these objections is entitled to much favor. The first admits that persons standing substantially in the same situation with the prisoner, only performing different services, and furnished by the nature of their employments,

with less power to do mischief, would for the same act be punishable as felons. The second admits that the prisoner, who attempted to ruin his employer, by embezzling his property, was entrusted to sell it for his benefit, was under engagements, and had received wages for that purpose.

Admitting however, that the prisoner is not to be considered as a servant, and that the goods were not delivered him to keep, admitting that he is not within the reach of the statute, then he is guilty of larceny by the common law.

It is true that a taking is essential to a larceny; and it is said that this offence cannot be committed where there is a delivery of goods from the owner to the offender upon trust. And the instances mentioned, are the loan of a horse, and the sending of goods by a carrier. These instences, however, it is to be observed, differ widely from the present case, the owner in these instances parting entirely with the possession, which, for the time belongs exclusively to the carrier,

and borrower, each of whom has a special property in the thing delivered. In the present case the offender had not the exclusive possession. The owner had not parted with his possession. The goods were in his store, subject to his control and direction, which he occasionally exercised. Had a trespass been committed on these goods, the clerk could not have maintained an action in his own name, but the suit must have been brought in the name of the owner. During every moment of time whilst the prisoner was in the owner's store, the owner might have done whatever he pleased with the goods. The store in which the goods were kept was in his possession, nay the prisoner himself was in his possession, (if I may so speak) having engaged to serve him for hire. As the owner had not parted with the possession of the goods, of course the prisoner could not have the possession of them. If he had anything, therefore, it was only a care and oversight, and the embezzlement of goods in such a case was felony at the common law. The distinction is clearly expressed in 4 Blackstone, 231. If he had not the possession, but only the care and oversight of the goods, the embezzling of them is felony at the common law. Here the goods were under the prisoner's care, not in his possession.

It remains therefore only to shew that though the indictment be founded on the statute, the prisoner may be found guilty of the offence at common law, and to this the 2...