State v. Spencer

• Decision Date: 01 January 1890
• Citation: 43 Kan. 114,23 P. 159
• Parties: THE STATE OF KANSAS v. L. M. SPENCER
• Court: Kansas Supreme Court

23 P. 159

43 Kan. 114

THE STATE OF KANSAS v. L. M. SPENCER

Supreme Court of Kansas

January 1, 1890

Appeal from Barber District Court.

ON May 8, 1889, there was filed in the district court of Barber county the following information, omitting caption and indorsement:

"Now comes R. A. Cameron, the county attorney of the said county and in the name and on behalf of the state of Kansas gives the court to understand and be informed that on or about the 15th day of April, 1889, in the county of Barber and state of Kansas, one L. M. Spencer, whose more full christian name is to the said county attorney unknown, was then and there the agent, employe, bailee, and trustee of an express trust of a certain corporation duly organized, existing and incorporated under the laws of the state of Illinois, and named and known as Parlin & Orendorff Company, and he, the said L. M Spencer, then and there being a person over the age of sixteen years, and that the said L. M. Spencer was by the said Parlin & Orendorff Company duly appointed as such agent, employe, bailee, and trustee of an express trust for the said Parlin & Orendorff Company on the 7th day of February, 1889, and so continued to be such agent, employe bailee, and trustee of an express trust, under and by virtue of the said appointment, up to and inclusive of the said 15th day of April, 1889. And that the said L. M. Spencer, on or about the said 15th day of April, 1889, in the county of Barber aforesaid, under and by virtue of his said appointment as such agent, employe, bailee, and trustee of an express trust, did have, receive and take into his possession and under his care, of and from the said Parlin & Orendorff Company, a large amount of goods, wares and merchandise theretofore obtained by the said L. M. Spencer of the said Parlin & Orendorff Company under and by virtue of a certain provision in a certain contract in writing, duly signed by the said defendant, L. M. Spencer, which said provision is in the words and figures following, to wit 'All goods, and the proceeds of all sales of goods received under this contract, whether the proceeds are in notes, cash, or book accounts, we agree to hold the same as collateral security in trust and for the benefit of, and subject to the order of Parlin & Orendorff Company, until we have paid in full in cash all our obligations due the said Parlin & Orendorff Company.' Which said goods, wares and merchandise are more particularly described as follows [items omitted.] All of the aggregate value of $ 4,949.37. And the said L. M. Spencer, the said property and the proceeds thereof as aforesaid, then and there feloniously fraudulently did take, embezzle and convert to his own use, without the assent of the said Parlin & Orendorff Company, the principal employer, bailor of the said L. M. Spencer, and the beneficiary of the express trust aforesaid, which said goods, wares and merchandise had come into the possession, care and control of the said L. M. Spencer by virtue of his being the agent, employe, bailee, and trustee of an express trust of the said Parlin & Orendorff Company as aforesaid.

"And for a second and further count comes the said R. A. Cameron in the name and on behalf of the state of Kansas, and gives the court to understand and be informed that on or about the 15th day of April, 1889, in the county of Barber and state of Kansas, one L. M. Spencer, whose more full christian name is to the said county attorney unknown, was then and there the agent, employe, bailee, and trustee of an express trust of a certain corporation duly existing, organized and incorporated under the laws of the state of Illinois, and named and known as Parlin & Orendorff Company, and he, the said L. M. Spencer, then and there being a person over the age of sixteen years; and that the said L. M. Spencer was theretofore, to wit, on the 7th day of February, 1889, by the said Parlin & Orendorff Company duly appointed as such agent, employe, bailee, and trustee of an express trust for the said Parlin & Orendorff Company, and so continued to be such agent, employe, bailee, and trustee of an express trust, under and by virtue of the said appointment, up to and inclusive of the said 15th day of April, 1889. And the said L. M. Spencer, on or about the 15th day of April, 1889, in the county of Barber as aforesaid, under and by virtue of his appointment as such agent, employe, bailee, and trustee of an express trust, did have, receive and take into his possession and under his care, of and from the said Parlin & Orendorff Company, a large amount of goods, wares and merchandise theretofore obtained of the said Parlin & Orendorff Company, under and by virtue of a certain provision in a certain contract in writing, duly signed by the said defendant, L. M. Spencer, which said provision is in the words and figures following, to wit: 'All goods and the proceeds of all sales of goods received under this contract, whether the proceeds are in notes, cash, or book accounts, we agree to hold the same as collateral security in trust, and for the benefit of and subject to the order of Parlin & Orendorff Company, until we have paid in full in cash all our obligations due the said Parlin & Orendorff Company,' which said goods, wares and...