Commonwealth v. Smith, 129 Mass. 104

Commonwealth v. Smith

129 Mass. 104 | Mass. | 1880

Colt, J.

The defendant was employed by Gaff & Co., distillers, to sell their goods in the New England States, under a written contract by which he became their agent, and was to receive commissions and a part of the profits, in lieu of salary, as compensation for his services. By the contract, he had no right of property in the goods, or the money received for them-. The relation between him and his employers was such, that a felonious conversion to his own use of the money collected from sales on their account would constitute the crime of embezzlement. He was an agent, authorized to receive money on account of his employers, and it is immaterial that his services were paid for, in whole or in part, by commissions or profits on such sales. Under the English statute against embezzlement by *110clerks or servants, it is held, in several cases, that the allowance of a portion of the profits on goods sold will not destroy the relation of master and servant. Rex v. Hartley, Russ. & Ry. 139. Rex v. Hoggins, Russ. & Ry. 145. Rex v. Carr, Russ. & Ry. 198. 2 Arch. Crim. Pl. (8th ed.) 450.

In the case at bar, the jury, under the instructions given, must have found a fraudulent conversion of money, which the defendant was bound by the terms of his employment to pay over to his principals, as the specific proceeds of sales made by him, and that he had no authority, either by the terms of the contract, or the usage, nature, and course of the business, to mingle the same with his own funds. This is sufficient to support the verdict, even if the defendant, without destroying the identity of the fund belonging to his employers, had in fact changed its form from checks to bank-bills.

The instructions requested by the defendant upon this point could properly be given only as modified by the judge. The fact that the defendant received for the goods of his employers a check payable to his own order, did not vest in him the title to the check,'or its avails. The relation of debtor and creditor did not exist, and the specific proceeds of the sales, whether in cash or in checks payable to their agent’s order, belonged to his employers, and were held in trust for them, so long as the fund was capable of identification. Commonwealth v. Tuckerman, 10 Gray, 173, 196. The transaction is the same whether the defendant received the price of the goods sold1 in bank-bills from the hand of the purchaser, or in a check, upon which he received the money or a credit at the bank. Under the statute, proof of- the embezzlement of a bank check is sufficient to sustain an indictment for the embezzlement of money. Gen. Sts. c. 161, § 42.

. The evidence which tended to show, from the course of business, that the defendant was permitted to deposit all money collected to his own credit, and remit by his own check payable to the order of his employer, was for the consideration of the jury. But the jury found that the defendant had no authority to mingle the money of his employers with his own money, and so become thereby a debtor for the amount belonging to them.

*111By the second request for instructions, the judge was asked to rule, in substance, that the defendant would not be liable for the embezzlement of the proceeds of liquor, sold by him as agent for the owners, in violation of the license laws of this Commonwealth. This instruction was properly refused. The fact that no action upon an express contract, or for money had and received, would lie to recover money received by such agent, does not show that one who steals or embezzles it is not liable to criminal prosecution. The law refuses its aid to a party seeking to enforce an illegal contract. The right by suit at law to collect debts contracted in an illegal traffic may be forfeited. But money received in ouch traffic is still property, which the law protects against wrongdoers. There is nothing in the statutes in relation to the sale of intoxicating liquors to prevent the owner from maintaining an action to recover such property or its value, when tortiously taken from his possession, or the possession of his agent. Booraem v. Crane, 103 Mass. 522. He may forfeit or lose his property in such goods, when upon proper legal process it appears that they were procured for an illegal purpose, but only upon such proof, and in the methods pointed out by the law. Until then he has a property in them, and in the proceeds of them, which may be the subject of larceny or embezzlement. Commonwealth v. Coffee, 9 Gray, 139. The possession of the alleged owner is sufficient title against a stranger or a thief. The violation of the license law is dealt with by itself, and subjected to such punishment as is provided therefor, and a theft or embezzlement of property, illegally acquired by another, is treated by itself, and punished as such. Commonwealth v. Rourke, 10 Cush. 397.

The case of Regina v. Hunt, 8 Car. & P. 642, as we understand it, is not in. conflict with this. It is briefly reported, but it appears that the money charged to have been embezzled was taken by the servant of a society which, under an existing statute, was an unlawful association.

The objection was taken, that property could not be laid in the indictment as belonging to persons so illegally combined together, and it was held to be well taken, on the ground, as we are left to infer, that a combination of individuals wholly illegal, could not have legal title in money, which was acquired, *112and could be used, only for the, illegal purposes of the association.

The evidence produced by the government to show that the commissions to which the defendant was entitled were paid by his employers, and not left to be deducted from money in his hands, and the defendant’s check which was sent to Gaff & Co. to pay the full amount of the debt collected by him, and which was offered for the same purpose, do not appear to have been improperly admitted. The whole evidence is not reported, and it does not appear in what connection this evidence was used. It was at least competent, as tending to show the existence of criminal intent on the part of the defendant.^

Exceptions overruled.