March 13, 1915. The opinion was delivered by Indictment and conviction and judgment for breach of trust with fraudulent intent. Appeal by defendant.
There are two exceptions, but only one issue.
There was no testimony for the defense, and only one witness for the State upon the issue in the case, and that the prosecutor, Chastain.
The defendant's contention is, that the testimony of Chastain, direct and cross, made a case of partnership betwixt Chastain and Grumbles to buy and trade and sell cows.
The exact and practical contention is, that the testimony was susceptible of that inference and only that inference; and that the Court ought to have so held and to have directed a verdict of not guilty.
Of course, if the two men were copartners there could be no conviction under the indictment.
The Court submitted to the jury as one of the issues in the case whether or not the testimony of Chastain made out a case of partnership; and the Court instructed the jury what constituted a partnership; but the Court declined to tell the jury that the testimony certainly made a case of partnership. *Page 242
We think the judgment of the Court thereabout is correct.
Copartnership is a factitious relationship betwixt two or more parties; and its existence depends upon the agreement between the parties; and the agreement may be established by parol.
There is a lucid statement of the law of partnership in Price v. Middleton,
Measured by the rules there stated it is not certain that the relationship which existed betwixt Chastain and Grumbles constituted them partners.
The judgment below is affirmed.