State v. Butman

| N.H. | Dec 5, 1881

The statute on which this indictment is founded reads as follows: "If any officer, agent, or servant of any corporation public or private, or the clerk, servant, or agent of any person, shall embezzle or fraudulently convert to his own use any money, bill, note, or other effects or property whatever, of such person or corporation, or in their possession or keeping, or shall knowingly or voluntarily pay or deliver any such money, bill, note, security for money, evidence of debt, or other effects or property to any person, or to the order of any person, knowing that such person is not entitled to receive the same, he shall be fined not exceeding $2,000, and imprisoned not exceeding five years." G. L., c. 275, s. 8. The operation of the statute is not to be extended to cases within the mischief intended to be suppressed, if they are not at the same time within its terms fairly interpreted. Wood v. Erie Railway Co., 72 N.Y. 196" court="NY" date_filed="1878-01-22" href="https://app.midpage.ai/document/wood-v--erie-railway-company-3621612?utm_source=webapp" opinion_id="3621612">72 N.Y. 196; United States v. Wiltberger, 5 Wheat. 76" court="SCOTUS" date_filed="1820-02-18" href="https://app.midpage.ai/document/united-states-v-wiltberger-6607979?utm_source=webapp" opinion_id="6607979">5 Wheat. 76; 2 Bish. Cr. L., s. 331.

It is contended, on behalf of the state, that partners being in law the agents of the firm, the statute is broad enough to include a partner who embezzles the property of his firm. This conclusion by no means follows. Words in statutes are to be read in their popular, natural, and ordinary sense. Birks v. Allison, 13 C. B. N. S. 23; Broom Leg. Max. 570. If the legislature intended to use the word "agent" in the sense contended for, it was unnecessary to insert the words "officer," "clerk," or "servant," for an officer or servant of a corporation is its agent for some purposes; and the clerk or servant of a person is his agent for the discharge of duties within the sphere of his employment. If it was the legislative intent to include partners in the statute, it is not easy to understand why they were not mentioned, or why the intent was left to be discovered by implication.

The statute 24 and 25 Vict, c. 96, s. 68, provided for the punishment of embezzlement by a clerk or servant of the property of his master or employer. Under this statute it has been held that a member of a friendly society could not be convicted of embezzling money taken by him on sales of tickets for a railway excursion, which he was appointed by the society to manage. The decision went upon the ground that he was a joint owner of the money (the property of the society not being vested in trustees), and that he was not a clerk or servant within the meaning of the statute. In Reg. v. M'Donald, L. C. 85, the prisoner was cashier and collector to commission merchants, and was paid partly by salary and partly by a percentage on the profits, but was not to contribute to the losses; and he had no control over the management of the business. It was held that while there might be a partnership in the business as to third persons, there was none inter sese, and being a servant he was held liable for embezzling the property of his employers. See, also, 2 Bish. Cr. L., ss. 341, 343; Holme's Case, 2 Lew. 256; Regina v. Diprose, 11 Cox C. C. 185; Regina v. Proud, L. C. 97. To meet what was considered a defect in England in its laws for the detection and punishment of embezzlement, the statute 31 and 32 Vict., c. 116, s. 1, was passed, punishing embezzlement, by a member of a copartnership, of its money, effects, and property. In Commonwealth v. Bennett, 118 Mass. 443" court="Mass." date_filed="1875-09-04" href="https://app.midpage.ai/document/commonwealth-v-bennett-6418226?utm_source=webapp" opinion_id="6418226">118 Mass. 443, the respondent was not a partner; and the ruling that he could not be convicted of the embezzlement charged, if he supposed when he took the money that he was a partner, was held sufficiently favorable to him.

We have not been referred to any decision, and we have not in our investigations discovered one, which holds that a partner may be convicted of embezzling the property of the copartnership under a statute similar to ours. The crime of embezzlement is purely statutory, originating in attempts to amend the law as to larceny. Further legislation is necessary to reach the case of embezzlement by one partner of the property of the firm.

The other count charges that the respondent, being the partner of Thompson, embezzled the property of Thompson. This is not sufficient. Non constat, that being a partner with Thompson he was his clerk, servant, or agent, and came into the possession of Thompson's corn and grain as such clerk, agent, or servant.

Indictment quashed.

STANLEY, J., did not sit: the others concurred.