Summary
In Reese v. State, 142 Tex.Crim. 254, 151 S.W.2d 828, 836 (App. 1941), the Court of Criminal Appeals held that proof of the deceased's advanced state of pregnancy was admissible in a prosecution of the father for murder. Imminence of childbirth was considered by the Court to be a circumstance showing motive. If so, it can only be as an implicit indicator of a state of mind seeking to avoid the parental relationship.
Summary of this case from Huffman v. StateOpinion
No. 34824.
December 20, 1941.
1. BILLS AND NOTES.
Checks delivered to a person other than the payee remain the property of the drawer until there is a valid delivery to and acceptance by the payee or something equivalent to delivery and acceptance (Code 1930, sec. 2872).
2. EMBEZZLEMENT.
Checks delivered to payee's employee who was without authority to accept them remained drawer's property until delivered to and accepted by payee, and employee was accountable for the checks to drawer, and hence could not be convicted of embezzling money belonging to payee for failure to deliver proceeds to payee (Code 1930, sec. 2872).
APPEAL from the circuit court of Leflore county, HON. S.F. DAVIS, Judge.
Means Johnston, Richard Denman, and Berry D. Brown, all of Greenwood, for appellant.
The indictment in this case is framed under Section 889 of the Mississippi Annotated Code of 1930. The indictment charges that Reese received, by virtue of his employment as agent of the Southern Undertaking Association and not as clerk or servant of the Association, money and checks of the amount and value of $134.02 of the property of the Southern Undertaking Association, which were entrusted to his keeping by virtue of his employment as such agent, and afterwards feloniously converted the same to his own use.
A reference to the evidence in this case discloses that the appellant, Reese, was employed by the Southern Undertaking Association as a bookkeeper and that he possessed no general authority with respect or relation to this business. He had absolutely no authority to receive cash or make collections or deposits for the Southern Undertaking Association, hence the proof utterly and wholly fails to support the allegation that the appellant was an agent of the Southern Undertaking Association for the purpose of receiving the checks, or money, in question.
It was absolutely encumbent upon the State in the instant case to prove that the title to the funds or checks alleged to have been embezzled by the appellant as agent was in the Southern Undertaking Association, his principal, or employer.
See State v. Cooper, 102 Iowa 146, 71 N.W. 197; State v. Harcombe, 48 Utah 89, 158 P. 1096; 20 C.J. 423.
An employee who collects money due from a third person to his employer, and refuses to account to the employer therefor, is not guilty of embezzlement, if he had no authority to collect the money, but did so on his own account with intention to appropriate it.
Brady v. State, 21 Tex. App. 659[ 21 Tex.Crim. 659], 1 S.W. 462.
See, also, Reg. v. Harris, 6 Cox C.C. 363; Rex v. Snowley, 4 C. P. 390, 19 E.C.L. 568; State v. Snell, 9 R.I. 112; State v. Johnson, 49 Iowa 141; 20 C.J. 431, 436, 441, 438.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
I submit that the proof was ample to sustain the conviction. It is argued quite at length by the appellant that the proof does not show that he was such an agent of the Southern Undertaking Association as would authorize the checks to be delivered to him for them. In such cases persons are warranted in entrusting to an employee, who is the bookkeeper of the corporation, checks payable to that corporation because it is the duty of the bookkeeper to make a record on the books of all business transactions such as the payment of checks and the clearing of checks through banks and it is usual for persons who want to pay accounts or to pay part of an account to go to the bookkeeper and there make the payment. This custom is so general that it is within the apparent scope of the bookkeeper's duties and powers to receive checks and to make entries on the books showing the transactions and to turn the checks over to the appropriate authority or the owner or payee to be endorsed or handled and it is a farfetched argument here to insist that the E.R. Gibson Agency in delivering the checks to the bookkeeper of the Southern Undertaking Association would not be a delivery to the Southern Undertaking Association of such checks. Having the checks entrusted to him, it was the duty of the appellant to account for them, he having accepted the trust of taking the checks to the Southern Undertaking Association for the purpose for which they were given.
When a check is issued and delivered by the maker and passes into the possession of another person, the maker's right over it is at an end and, if he has not been deceived or misled in the matter, title to the check passes to the payee and that is true in this case. When the E.R. Gibson Agency delivered the checks to the appellant it ceased to be the property of the E.R. Gibson Agency and became the property of the Southern Undertaking Association.
Argued orally by Richard Denman and Berry D. Brown, for appellant, and by Geo. H. Ethridge, for appellee.
The appellant was convicted of embezzling money belonging to the Southern Undertaking Association that came into his possession as an agent or employee of the Association. He requested, but was refused, an instruction directing the jury to find him not guilty.
The evidence discloses that the Southern Undertaking Association, a corporation, was engaged in the undertaking and burial insurance business at Itta Bena, Mississippi. The appellant was its bookkeeper and his only duty to or authority from the Association in addition thereto was to make out the corporation's sales tax returns.
E.R. Gibson was engaged in a similar business at Durant and Lexington under the name of E.R. Gibson Agency. The appellant while serving the Southern Undertaking Association as its bookkeeper was also employed by Gibson to look after his "sales tax, income, and social security."
At various times during 1938 and 1939 Gibson delivered to appellant checks, ten in number, drawn by E.R. Gibson Agency on Merchants' Farmers Bank at Durant, payable to the order of Southern Undertaking Association, each for $18.43, and reciting that it was for sales taxes. When asked why he did this Gibson replied "because he was bookkeeper for the Southern Undertaking Association and I had him employed to look after my sales tax, income and social security;" and when asked "why he made the checks payable to the Southern Undertaking Association instead of the State Tax Commission," he replied "because he was handling their taxes . . . he was looking after the taxes for me and he was just supposed to run it through the regular channels of the Southern Undertaking Association's taxes."
The appellant did not deliver any of these checks to the Southern Undertaking Association and it did not receive the proceeds of any of them except one which the appellant delivered to an employee of the Association, who, at his request, gave him the money for which it was drawn and then endorsed and deposited it to the Association's credit in the Bank of Itta Bena. All of the other checks, appearing to have been properly endorsed, were presented to and paid by the Bank of Itta Bena and were by it collected from the drawee bank at Durant. Who endorsed these checks, delivered them to the Itta Bena Bank and received the money thereon does not appear except as to three of them. These three were endorsed by the appellant in his own name and by someone also in the name of the Southern Undertaking Association and were delivered by the appellant to and cashed for him by the Itta Bena Bank.
The evidence is silent as to whether the Gibson Agency's sales taxes were paid. The appellant did not testify.
Two reasons assigned by the appellant in support of his right to a directed verdict are that the evidence fails to disclose (1) that the checks or their proceeds were the property of the Southern Undertaking Association; and (2) that the appellant converted the checks or their proceeds to his own use.
Checks of the character of those here under consideration remain the property of the drawer unless and until there is a valid delivery and acceptance thereof or their equivalent to and by the payee. Section 2872, Code of 1930; Love v. Mayor, etc., 166 Miss. 322, 148 So. 382; 10 C.J.S., Bills and Notes, secs. 78 and 80; 7 Am. Jur., Bills and Notes, Section 32. The delivery of these checks was to an employee of the payee who was without authority to accept them. Consequently, they did not become thereby the property of the payee and could not have here so become until they were delivered by the appellant to and accepted by it, in the absence of which, they remained the property of the drawer to whom the appellant is accountable therefor. This being true, no necessity arises for considering whether or not the evidence discloses a conversion by the appellant of these checks or their proceeds to his own use.
The appellant's request for a directed verdict should have been granted.
Reversed and remanded.