State v. Reddick

• Decision Date: 28 May 1891
• Citation: 2 S.D. 124,48 N.W. 846
• Parties: State v. Reddick.
• Court: South Dakota Supreme Court

2 S.D. 124

48 N.W. 846

State

v.Reddick.

Supreme Court of South Dakota.

May 28, 1891.

Syllabus by the Court.

1. Under the general Criminal Code defining embezzlement as a criminal offense, the misappropriation of partnership funds by one of the general partners, with felonious intent, does not constitute embezzlement.

2. Under such general statute the subject of embezzlement must be the property of another, and partnership property cannot be said, with reference to either partner, to be the property of another.

3. Section 4036, Comp. Laws, declares that partners are trustees for each other. Section 3195 further defines who are trustees. Section 6799 provides when a trustee is guilty of embezzlement, but these sections do not have the effect to change the rule first announced.

4. The partnership is the owner of the property alleged to be embezzled, and these sections do not assume to make the partners trustees for the partnership, but for each other.

Error to circuit court, Hamlin county.H. W. Lakin and W. S. Glass, for the State. C. X. Seward, for defendant in error.

KELLAM, P. J.

The indictment in this case and the demurrer thereto present the question whether, in this state, a general partner who fraudulently and with felonious intent misappropriates the funds of the partnership of which he is a member is thereby guilty of the statutory crime of embezzlement, the indictment setting out the facts fully. The state, being plaintiff in error, maintains the affirmative, and presents the following argument: Section 4036, Comp. Laws, declares: “The relations of partners are confidential. They are trustees for each other within the meaning of chapter 1 of the title on Trusts.” Section 3915 of said chapter 1 provides that “every person who voluntarily assumes a relation of personal confidence with another is deemed a trustee within the meaning of this chapter, not only as to the person who reposes such confidence, but also as to all persons of whose affairs he thus acquires information, which was given to such person in the like confidence, or over whose affairs he, by such confidence, obtains any control.” Section 6799, Id., so far as applicable to this question, is as follows: “If any person, being a trustee, *** or being otherwise intrusted with or having in his control property for the use of any other person *** fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.” Upon these provisions of law the contention is made that defendant in error was a trustee of his copartner; that as such partner and consequent trustee he had in his control property for the use of another, and that a fraudulent appropriation of such property to a use or purpose not in the due and lawful execution of his trust, as charged in the indictment, rendered him guilty of embezzlement. It need hardly be stated that under the general statute defining embezzlement as a criminal offense the rule is that the fraudulent misappropriation of partnership funds by one of the partners does not constitute embezzlement, for each partner is the ultimate owner of an undivided interest in all the partnership property, and none of such property can be said, with reference to either partner, to be the property of another, and as no one can be guilty of stealing or embezzling what belongs to him and of which he is legally entitled to the possession, the courts have uniformly held that a general partner cannot be convicted of embezzling...