Opinion
No. 32322.
November 2, 1936.
1. EMBEZZLEMENT.
Indictment alleging firm of which accused was partner was agent of other partner to handle his money to buy cotton, and that accused by reason of his employment as such agent of other partner had in his possession two thousand four hundred dollars of such other partner, and embezzled same, held not demurrable as charging embezzlement of partnership funds or funds owned by accused in part.
2. INDICTMENT AND INFORMATION.
Indictment, substantially in words of Code, alleging firm of which accused was partner was agent of other partner to handle his money to buy cotton, and that accused by reason of employment as such agent of other partner had in his control two thousand four hundred dollars of other partner and, prior to a named date in a named county, without consent of owner, embezzled and converted money to accused's use, and fraudulently and feloniously concealed same, held not demurrable as vague and indefinite (Code 1930, sec. 889).
3. INDICTMENT AND INFORMATION.
State need not recite in indictment evidence upon which it relies for a conviction.
4. INDICTMENT AND INFORMATION.
Generally, an indictment presented by virtue of a particular statute, which follows the language thereof, is sufficient.
APPEAL from the circuit court of Union county. HON. T.H. McELROY, Judge.
Webb M. Mize, Assistant Attorney-General, for the state.
The indictment charged the crime of embezzlement.
The indictment is drawn in the language of section 889 of the Code of 1930, or in language similar to said section and the indictment charges that Coltharp was the agent of Stephens for the purpose of handling and buying cotton. The indictment further charges that Coltharp was entrusted with two thousand four hundred dollars with which to buy and handle cotton, but that he used, secreted and made away and converted to his own use the said money without the consent of the said Stephens.
The indictment need not be drawn in the words of the statute, if the words used are synonymous with the words set out in the statute.
Richberger v. State, 90 Miss. 806, 44 So. 772.
Evidently the objection to the indictment in the court below was the mistaken view of the appellee that the charge was of embezzling from a partnership.
It will be seen that the indictment charges embezzlement of the money from a private person, E.J. Stephens and charges that Coltharp was the agent of E.J. Stephens.
Being a member of a partnership is a defense to a charge of embezzlement and may be availed of on the proof.
The indictment is not vague and indefinite.
State v. Murphy, 124 Miss. 440, 86 So. 868; Davis v. State, 108 Miss. 710, 67 So. 178; State v. Journey, 105 Miss. 516, 62 So. 354.
Fred B. Smith, of Ripley, for the state.
It is the clearly established law in Mississippi that a partner cannot be prosecuted on a charge of embezzling the funds of the partnership. But the language of the indictment in this case, clearly indicates that no charge is being made against the appellee for embezzling funds of a partnership of which he was a member. As shown by the indictment, E.J. Stephens, and the appellee, J.L. Coltharp, were a partnership, trading under the firm name of Stephens Coltharp Cotton Company, and that the Stephens Coltharp Cotton Company was the agent, for and on behalf of E.J. Stephens to handle and use the money of E.J. Stephens in the buying of cotton. The indictment further states that by reason of this agency existing between the Stephens Coltharp Cotton Company on the one hand as agent, and E.J. Stephens on the other hand as principal, that the said J.L. Coltharp became and was the agent of E.J. Stephens, and as such agent had in his care and control the property of the said E.J. Stephens in the sum of twenty-four hundred dollars ($2400.00).
47 C.J. 775, 795.
Certainly a partnership can assume the relationship as agent for one member of the partnership in handling the individual funds of that member. The indictment plainly alleges that the partnership was acting as such agent of E.J. Stephens in the handling of his individual moneys, and that while so acting the said J.L. Coltharp was the agent of Stephens. We cannot believe that our court would hold that the mere fact that parties were partners in business, would prevent one of these partners from being guilty of embezzlement, if he wrongfully misappropriated the individual funds of the other party intrusted to his keeping, where the funds embezzled did not belong to the partnership.
Carr v. State, 16 So. 155.
Anderson Clayton, of New Albany, for appellee.
In the present case, the indictment affirmatively recites that in fact and in truth there was a partnership, which, on demurrer, is accepted as true.
One of the last pronouncements of this court on vague and indefinite indictments is that of State v. Cahn, 158 So. 202. In this case, the charge was that the appellees had published a false statement as to the condition of the bank. The indictment did not give date on which the condition of the bank was supposed to cover and made a general charge that all of the representations as to the condition were known to be false. The indictment was demurred to, the demurrer was sustained and the action of the lower court was affirmed on appeal.
In the present case, the indictment is, likewise, drawn under a general statute. The charge is that before and after December, 1930, the appellee embezzled twenty-four hundred dollars. No specific acts are charged, no manner of alleged embezzlement, no exact time on which the embezzlement took place and not a single particular concerning the same. The only affirmative recital is that sometime in the neighborhood of December, 1930, the appellee embezzled twenty-four hundred dollars. Speaking of running the gauntlet as in the Cahn case, this appellee under this indictment would have such a course before him. Consequently, it is submitted that the indictment cannot stand.
No one denies that a partnership may be the agent of someone other than a partner but that it is entirely different from being the agent of one of the partners.
Restatement of the Law of Agency, page 7, par. 1; 2 C.J. 419, par. 1.
Neither of the briefs for appellant cite any authority anywhere that holds that this type of agency necessary to sustain this indictment is known to the law. In the very nature of agency, it cannot be so.
This appeal is prosecuted by the state from a judgment of the lower court sustaining a demurrer to an indictment against appellee, Coltharp, for embezzlement. The essential parts of this indictment are as follows:
J.L. Coltharp, "being then and there a partner in the Stephens Coltharp Cotton Co., a co-partnership composed of the said J.L. Coltharp and one E.J. Stephens, domiciled and doing business in said county and State, and said Stephens Coltharp being then and there the agent for and on behalf of E.J. Stephens to handle and use money of E.J. Stephens in the buying of cotton, and the said J.L. Coltharp being then and there, by reason of his employment as such agent of E.J. Stephens, did then and there have in his care and control of the property of E.J. Stephens the sum of $2400.00 . . . and did then and there afterwards and prior to the ____ day of December, 1930, in said county and State, without the consent of the said E.J. Stephens, wilfully, unlawfully, fraudulently and feloniously embezzle said money, and . . . convert the same to his own use, and . . . make way with the same, and did . . . secrete the same, and did then and there fraudulently and feloniously conceal the same," etc.
The indictment was demurred to on two grounds, first, that it failed to charge any crime known to the law, and, second, that it is vague and indefinite.
The contention of the appellee on the first ground is that Stephens Coltharp were partners in the operation of the cotton company, and that, under a well-recognized rule of law, one partner cannot be held to be guilty of an embezzlement from another partner, and that this indictment charges an embezzlement by Coltharp of partnership funds. It is further asserted that the relation of principal and agent cannot exist in the same person. The rule of law upon which the appellee relies is as follows: "A fundamental principle of the common law is that one cannot steal his own property, and the general rule, therefore, is that the ownership of the property alleged to have been embezzled must not be in the accused, either in whole or in part." 20 C.J., p. 416.
The indictment charges the agency of Stephens Coltharp for E.J. Stephens, and it further alleges that Coltharp, being an agent for and acting on behalf of E.J. Stephens to handle and use his money in the buying of cotton, had in his care and control, two thousand four hundred dollars, the property of Stephens. This indictment does not allege that Coltharp embezzled the partnership funds, nor does it allege that the partners were joint owners of the two thousand four hundred dollars which was placed with the agent for a specific purpose, but the indictment excludes the idea that anybody owned the money except E.J. Stephens, or that anybody had control of or embezzled the money except Coltharp. The indictment may have unnecessarily set up the fact of agency, but it stripped bare the idea of joint agency, and simply charges that Coltharp, as agent for E.J. Stephens, intrusted with the money, used and embezzled it. According to a fair interpretation of this indictment, it simply charges that Stephens' money was embezzled by his agent, Coltharp, and not because of the partnership, but despite it. We think the indictment, in this respect, is sufficient to withstand the demurrer.
We are unable to apprehend wherein the indictment fails to be specific in presenting an indictment on this statutory charge. This indictment was drawn under section 889, Code 1930, is substantially in the language thereof, and is not subject to condemnation, as delineated in the case of State v. Cahn et al., 171 Miss. 458, 158 So. 202.
The evidence upon which the state relies for a conviction is not necessary to be recited in an indictment. The indictment is quite sufficient to inform the appellee that he is called upon to answer a charge of the embezzlement of two thousand four hundred dollars.
Generally, an indictment presented by virtue of a particular statute, which follows the language thereof, is sufficient. There are exceptions, but they are not referred to by the appellee, nor applicable in the case at bar.
We think the court below was in error in sustaining the demurrer to the indictment.
Reversed and remanded.