Wyatt v. State

• Decision Date: 22 March 1922
• Docket Number: A-3168.
• Citation: 205 P. 194,21 Okla.Crim. 121
• Parties: WYATT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

205 P. 194

21 Okla.Crim. 121

WYATT v. STATE.

No. A-3168.

Court of Criminal Appeals of Oklahoma

March 22, 1922

Syllabus by the Court.

If an agent, bailee, or servant does with the money or property of his principal only what he has been authorized to do, he is not guilty of embezzlement.

Money acquired fraudulently by the principal may be the subject of embezzlement by an agent; but an agent handling such a fund is not guilty of embezzlement from his principal where he uses the funds within the scope of his authority.

Appeal from District Court, Stephens County; Cham Jones, Judge.

Fred S Wyatt was convicted of embezzlement, and sentenced to imprisonment for six months in the state penitentiary, and he appeals. Reversed and remanded.

James W. Steen, of Enid, and J. B. Wilkinson, of Duncan, for plaintiff in error.

S. P Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

BESSEY J.

Fred S Wyatt, plaintiff in error, in this opinion referred to as the defendant, was by information filed October 1, 1916, charged with the embezzlement of the sum of $25, the charging part of the information, which was predicated upon section 2671, R L. 1910, being as follows:

"That the said Fred S. Wyatt, on the day and year aforesaid, at and within the county and state aforesaid, was then and there an officer, to wit, president of a certain association, to wit, the People's Buying & Selling Association, and that as such officer the said Fred S. Wyatt was intrusted with and had in his possession and under his control, by virtue of his trust as such officer, the sum of $25, good and lawful money of the United States of America; and that the said Fred S. Wyatt did then and there, while he was such officer and while he was intrusted with the said sum of money as aforesaid, by virtue of a trust then and there existing between him and the said Association, willfully, unlawfully, wrongfully fraudulently, and feloniously embezzle, convert and appropriate the said sum of money, to wit, $25, to his own use and to a use and purpose not in the due and lawful execution of his said trust and duty."

The evidence indicates that the People's Buying & Selling Association had been a corporation operating a kind of farmers' cooperative store in Garfield county, Okl., and that the store there had failed and ceased to operate about two years prior to the filing of this information, and that in the meantime the corporation's certificate to do business was revoked and suspended for failure to pay its corporation taxes; that this association was what is sometimes termed a close corporation, consisting of the defendant, his wife, his son, and an attorney at Enid, who was counsel for the corporation.

The defendant was the president and treasurer of the association, and his son was secretary. The object and purpose of the association was to organize and conduct farmers' co-operative stores, to buy and sell merchandise and farm products. The association was financed, in part, by the selling of certificates to farmers and others, by which it was agreed that the holders of these certificates would have the privilege of buying merchandise from the association stores at 5 per cent. discount on staple merchandise, and at from 5 to 20 per cent. discount on other commodities, and the association agreed to handle and dispose of farm products for the owners of these certificates to the best advantage possible.

Wyatt spent some time in and about Marlow soliciting and selling certificates to farmers, for the purpose, as he represented, of establishing a store at Marlow. One of these certificates, indicative of the character of contract made with these farmers, is as follows:

"No. 12. 18 Years.

Membership Certificate in the People's Buying and Selling Association, Incorporated under the Laws of Oklahoma. Authorized Capital, $20,000.

This is to certify that George D. Morrison, having subscribed and paid for a membership in the People's Buying and Selling Association, is entitled to all its benefits and advantages from date of the certificate during the term of incorporation.

This association agrees to handle a general line of merchandise, such as groceries, dry goods, clothing, farm machinery, siloes and accessories to same, giving to its members a trade discount on all purchases of five per cent. on groceries and from ten to twenty-five per cent. on other merchandise. Also to give all possible advantage to handling farm products.

Members bind themselves not to avail themselves of the privilege of membership except for their own personal use and that of their immediate family. The purchaser having paid the membership fee is exempt from all dues, liabilities and assessments.

In witness whereof, the said corporation has caused this certificate to be signed by the duly authorized officers and to be sealed with the seal of the corporation this 3d day of May, 1916.

Fred S. Wyatt, President.

[Corporate Seal.]

Earl L. Wyatt, Secretary."

The defendant made contracts of this character with 10 or 12 farmers in the vicinity of Marlow, taking notes in the sum of $100 therefor, with the exception of one sold to Walter Garvin, who paid cash for the certificate issued to him. The $100 so obtained was deposited by the defendant in the National Bank of Marlow, in the name of the People's Buying and Selling Association, and later the defendant, as president, treasurer, and general manager of the business, drew checks on this deposit, one of which was as follows:

"The National Bank of Marlow.

Marlow, Oklahoma, May 3, 1916.

Pay to Fred S. Wyatt or order $25.00, twenty-five and no-100

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