260 F. 772 | 9th Cir. | 1919
Lead Opinion
It appears from the record that prior to November 20, 1916, one Henry Cook held a lease from the owners of certain mining ground situated on Vault creek, in the Fairbanks recording district of Alaska, during the operation of which he became indebted to various parties in various amounts; among his numerous creditors being the plaintiff in error, Lindgren, in the sum of $6,650, Samson Hardware Company in the sum of $6,848.03, and E. R. Peoples, Incorporated, in the sum of $4,383.02. In that condition of affairs, Cook assigned, in writing, his lease of the property, called Sierra association claim, together with the machinery thereon, to a man named E. M. Keyes, “to have, use, and hold the same in his mining operations under said lease and the present assignment thereof” — the lease expressly declaring: “And in consideration thereof the said E. M. Keyes agrees to carry on mining operations upon said demised premises under said lease in a miner like manner; that out of the gross proceeds of such mining operations he
That instrument, which was signed by the creditors of the said Cook, including those that have been mentioned, declared as follows: "In consideration of the foregoing assignment of lease, lease of mining machinery, and agreement on the part of the said E. M. Keyes to carry on mining operations upon the land in said lease so assigned and referred to, we, the undersigned creditors of the said Henry Cook, in the amounts set opposite our respective names, do hereby agree that we will not, prior to August 1, 1917, commence or prosecute any action against the said Henry Cook, nor attach nor issue execution against any of the properfy hereinbefore leased to the said E. M. Keyes, nor attempt in any wise, Jay proceedings at law or otherwise, to interfere with or hinder the said E. M. Keyes in his mining operations upon said ground, nor with his use of the machinery thereon and used by him, and will accept as payment on account of our respective claims against the said Henry Cook, out of the net proceeds of said mining operations as above provided, our pro rata share thereof in proportion to our respective claims” — which were enumerated.
While Keyes, who was engaged in mining other property in the vicinity, does not appear to have signed the lease reciting his foregoing agreement, the record shows that he entered upon the performance thereof, putting in active charge of the work a foreman named Anderson, who had been foreman for Cook while he was working the property prior to the assignment. It appears that the money due Lindgren was for wood furnished by him for the working of the ground, a part of which wood was furnished to Cook
Keyes took possession of the mine shortly after the assignment of the lease to him, and on the 22d of May, 1917, there was a clean-up-of the dump, which yielded about $7,-000 in gold dust — a man named Webster representing Keyes, and Stroecker being also present as the representative of E. R. Peoples, Incorporated. It appears that it was agreed among all the interested parties present that the proceeds of the clean-up should be sent by Lindgren to Fairbanks, and there converted into money, which money should be brought back to the mine by Lindgren, where it should be distributed in payment, so far as it would go, of the amounts due the laborers, and that this was done. But it also appears that the money so realized was not sufficient to entirely pay the amounts due the laborers, and there was testimony given on the trial tending to show that the latter were unwilling to proceed with the work upon the mine, except upon the agreement that the remaining indebtedness to them, as well as what they should earn by future work, should be paid out of the next clean-up.
Whether or not that arrangement was fully agreed to by all of the interested parties present — there was a substantial conflict in the testimony upon the subject — the work did proceed as before under Keyes, and a second clean-up was made, which amounted, after paying the royalty due the owners of the property, to $5,479.55, which amount was not sufficient to pay in full the claims of the laborers. It appears that the gold dust from the second clean-up was also sent in charge of Lindgren, on a Saturday, to the bank at Fairbanks, distant from the mine about 27 or 28 miles, for conversion into money, he arriving there too late in the evening to return to the mine that night, but he got the $5,479.55 in money, and the next day — Sunday— he started back with it to the mine, but before proceeding far changed his mind and concluded not to go, of which change and intention he notified Stroecker (who was at the mine) over the telephone, resulting in the arrest that (Sun
It is elementary thát a felonious intent on the part of the accused was essential to his conviction of the crime alleged. Yet the record shows that on the trial the court, upon objections interposed by the attorney for the government, refused to permit either the defendant or Cook to testify that the defendant, on his way back to the mine with the $5,479.55, met Cook, when this, in substance, occurred between the two: That in answer to a question by Cook as to how things were going, at the mine, the defend
To the refusal of the court to permit that testimony, either by Cook or the defendant, the latter duly reserved exceptions, as well as to the subsequent refusal of the court to permit the defendant to answer this question: “Q. Did you act upon the advice of any attorney in holding the gold dust as you have testified you did hold it, on Sunday, the 2d day of June, 1917?”
By the question so propounded the defendant was, in effect, asked whether in withholding the money under the circumstances testified to by him, he acted upon the advice of an attorney.. In each of the rulings mentioned we are of the opinion that the court below committed clear error. It was not at all a question as to whether the defendant had the legal right to withhold the money in payment, or to secure the payment, of the amount due him for the wood he had furnished; but the question for the jury to determine was whether he withheld the $5,479.55 with the felonious intent to embezzle it. It was not and is not pretended that there was any secrecy about the defendant’s conduct in the matter; according to the evidence, he talked at least twice over the telephone with Stroecker, first telling him that he was going to the mine with the money, and later informing him that he (the defendant) had changed his mind. If, in doing so, the defendant acted in good faith, believing that he had the legal right to withhold the money and with no felonious intent respecting it, it is manifest that he could not be guilty of the crime of embezzling the money. Surely, therefore, the defendant was entitled to have the jury informed as to what if any advice he received from his attorney ; and equally clear is it, we think, that .he was entitled to have the jury consider the conversation he had with Cook that has been referred to, particularly as it appeared from the testimony that his arrest and prosecution was had at the instance of E. R. Peoples, Incorporated, and
After referring to the rule in relation to bailments, the court further said: “But, notwithstanding this rule, the evidence was clearly competent on the question as to whether the money was in fact feloniously converted by the defendant to his own use with an intent to steal it. A felonious intent is an essential ingredient of the crime charged in the indictment, and is always a question for the jury. Without a felonious and criminal intent on the part of the defendant, there could have been no crime, although there may have been a breach of trust, and although Liebe’s claim to the money may constitute no defense in a civil action by Mrs. Hess to recover possession, because of the rule that a bailee cannot dispute the title of his bailor. But this is a criminal prosecution, and the conversion by the defendant must not only have been a tortious act, but it must have been with a felonious intention, and this, as we have already said, was 'a question of fact for the jury under all the circumstances of the case. If he was the bailee of Mrs. Hess, and in good faith retained possession of the money, and refused
On principle, the present case is stronger for the appellant than was the case cited, for there the appellant had no apparent interest in the money, while here the appellant had at least some direct interest in the proceeds of the clean-up. It seems unnecessary to multiply authorities to the effect that in such cases a felonious intent is essential to constitute the crime of embezzlement. We cite, however, a few. State v. Coyle, 41 Utah, 320, 126 P. 305; People v. Lapique, 120 Cal. 25, 52 P. 40; Wadley v. Commonwealth, 98 Va. 803, 35 S.E. 452; Dunavant v. Commonwealth, 144 Ky. 210, 137 S.W. 1051; Walker v. State, 117 Ala. 42, 23 So. 149; Eatman v. State, 48 Fla. 21, 37 So. 576; 15 Cyc. 508.
The judgment is reversed, and the case remanded for a new trial.
Dissenting Opinion
(dissenting).
I cannot agree to the proposition that it is competent evidence for the defense, on a trial for larceny by bailee, to show that the accused was told, by one who had no interest in the money which he held in trust, to keep the money and appropriate it to his own use. The money which the plaintiff in error had in his' possession did not, as he was
“It is necessary, however, in all cases, that the claim of right be a bona fide one.” 25 Cyc. 50.
It is not shown, and there was no offer of proof, that the plaintiff in error was influenced in any degree by Cook’s statements; on the contrary, his whole evidence is that he never at any time appropriated, or intended to appropriate, or keep the money. He testified that after his conversation with Cook he continued on his way to the mine, and that he returned to Fairbanks only on account of the lameness of his horse, that he intended to go out with the money on the train on the following morning, and that he would have done so, but for his arrest.
I agree with Judge HUNT that it was not reversible error to sustain the objection to the question propounded to the plaintiff in error: “Q. Did you act upon the advice of any attorney in holding the gold dust, as you have testified you did hold it, on Sunday, the 2d day of June, 1917?”
The plaintiff in error had testified that he held the gold dust on Sunday, the 2d day of June, in trust for the true owners thereof, and that he intended to take the same to the mine, there to be disbursed in accordance with the agreement of the parties. It was immaterial whether or not, in so holding it, he was acting under the advice of an attorney.
Concurrence Opinion
I concur in the judgment of reversal and remand for new trial, upon the ground that the court erred in refusing to permit the defendant to testify to the conversation he had with Cook. The matter appears to.have been so directly connected with the transaction involved, and with the act of the defendant in retaining the money intrusted to him, that the defendant should have been given the right to introduce the evidence before the jury, as bearing upon the ultimate question of whether or not his conduct was actuated by fraudulent or honest purpose.