Opinion
No. 34533.
June 9, 1941.
1. CRIMINAL LAW.
Aside from those cases where there is actual connivance, conspiring or abetting, or where the business conducted by principal through agent is itself unlawful, there is no principle by which criminal responsibility may be imputed to a master for acts of servant, and civil doctrine of "respondeat superior" was not conceived, nor is it to be applied, to include responsibility of master to the state for independent acts of servant.
2. FALSE PRETENSES.
Evidence that manager of defendant's filling station issued a check to another in payment for gasoline delivered and that payment of check was refused by bank because of insufficient funds but failing to show that defendant knew of issuance of check and negativing defendant's participation in its execution was insufficient to authorize conviction for violation of statute penalizing delivery of check without sufficient funds with intent to defraud, since necessary element of intent to defraud was lacking (Laws 1932, chap. 299).
APPEAL from circuit court of Sunflower county, HON. A.H. BELL, Special Judge.
Neill, Clark Townsend, of Indianola, for appellant.
Appellant did not knowingly and unlawfully withdraw the money from his funds for the purpose of preventing payment of check in question.
The proof is uncontradicted to the effect that appellant did not even know when the check was given.
The state saw fit to introduce only a short part of the bank accounts of defendant covering only a few days, and the deposits therein made by the defendant in each account on the very date in question fail to indicate that the defendant was trying to commit a crime, and on the contrary the evidence as a whole indicates that the prosecuting witness extended the defendant credit, and thereafter by reason of the unfortunate circumstances of the defendant he was unable to pay a civil obligation, which he did not deny owing. Nothing that the defendant did or could do after the giving of the check should have any bearing on this case, that is to say, whether the check was paid or not. If a crime was committed, same must be based on the intent and the crime would have been committed when the check was given.
If a man can be convicted of a crime on this statement of fact, he may commit crime by going away from his home to his work in the morning when his wife draws a check on his account at a bank without his particular knowledge that same is being done on that date.
Geo. H. Ethridge, Assistant Attorney-General, for appellee.
In the case before us, it appears that the check was actually given by another person who was manager of one of the places of business of the appellant, and it seems to me that the proof does not show that the appellant actually directed, procured or caused the check to be given. It seems to me that such proof is necessary to make the appellant responsible for what his agent did. As I see it, there was no conspiracy, or agreement or direction by the appellant to his agent to buy the particular gasoline or to give the particular check and, in my opinion, the proof negatives this fact.
Of course, appellant civilly is liable for the acts of his agent within the scope of the agent's employment, but the law does not impose criminal responsibility upon the principal for the acts of his agent, unless he actually directed or procured his agent to do the criminal act.
It is important that the statute be correctly construed and where a person or corproation is engaged in business in excess of his personal ability to handle, that he not be criminally responsible for the act of his agent, although the agent may have ignorantly or unintentionally perpetrated fraud upon some third person. Criminal statutes are to be construed favorably to the citizens and strictly construed against the state, and to make the person guilty of the crime the act must define the crime with certainty and the proof must establish guilt beyond a reasonable doubt. I make these observations so that the court will realize that we have a difficult situation in the present case, and it is far more important to give careful consideration to the proof because the proof does not show that the appellant personally gave the check, nor does it show that he knew the specific check was given, nor does it show that he actually knew of the condition of his bank account at the time the check was given and payment refused.
The defendant was convicted under Laws 1932, chapter 299, which provides that, "If any person, with intent to defraud, shall make, issue and deliver to another person, for value, any check . . . on any bank . . . and thereby obtain from such person any . . . goods . . . of value, and have . . . insufficient funds on deposit to his credit in bank . . . with which such check . . . may be paid . . .," he shall be guilty of, and punished for, a misdemeanor. The first count of the indictment was drawn under this provision. A second count was drawn under the latter part of the act, which punishes any such person who "shall with intent to defraud withdraw . . . the money or any part thereof . . . without leaving with such bank . . . a sufficient sum to cover such check . . . and same shall not be paid by such bank . . . on presentation . . ."
Defendant was the owner of two gasoline filling stations, of one of which E.L. Kastorff was the manager. On August 3, 1938, Kastorff caused to be issued a check to T.E. Micham, drawn on a local bank, in the sum of $65.61 in payment for a quantity of gasoline then and there delivered. This check was signed, "Texas Service Station, By E.L. Kastorff," and upon presentation by payee to the bank payment was refused because there was not sufficient balance to the credit of such account.
A serious question is raised by the disclosure that prosecution was begun more than two years after the commission of the offense alleged. An examination of this question would involve a construction of Code 1930, section 1194, which fixes a limitation of two years in which prosecutions may be instituted. Included in the exceptions as to which the limitation is inapplicable is, "obtaining money or property under false pretenses." Whether the prosecution here falls under the bar or under the exception we will not decide, because we have reached the conclusion that the proof is insufficient to sustain a conviction of the defendant.
There is no agency, properly so called, in crime. Aside from those cases where there is actual connivance, conspiring or abetting, or where the business conducted by the principal through the agent is itself unlawful, there is no principle by which criminal responsibility may be imputed to a master for the acts of the servant. The civil doctrine of respondeat superior was not conceived, nor is it to be applied, to include responsibility of the master to the state for the independent acts of the servant. 22 C.J.S., Criminal Law, Sec. 84, p. 149; 14 Am. Jur. 812.
The evidence does not disclose that the defendant knew of the issuance of the check. On the contrary, it negatives not only his presence but his participation in its execution. The statute denounces the delivery of such a check, or withdrawal of funds, "with intent to defraud." Where there is no knowledge of the act there can be no intent as to its effect. We do not mean to hold that one may not incur criminal responsibility by directing certain acts to be done. In the case before us we are clearly of the opinion that the state has drawn its indictment without sufficient proof to meet its allegations.
Reversed, and appellant discharged.