State v. Journey

62 So. 354 | Miss. | 1913

Cook, J.,

delivered the opinion of the court.

Omitting the formal parts, the indictment in this case reads this way:

“That S. K. Journey, in said county on the second day of September, A. D. 1912, being the agent, servant, and employee and bailee of the General Film Company, a corporation, duly chartered and organized and doing business in the states of Louisiana and Mississippi, with its domicile at the city of New Orleans, Louisiana, and doing-business under the firm name of the General Film Company, did then and there, by virtue of a contract of lease, rent and hire, made by and entered into by and between the General Film Company and the said S. K. Journey, whereby said S. K. Journey agreed to pay to said General Film Company one dollar each reel of films, as rent, shipped to him, to be used by him not exceeding four days, and to he then returned by him to the said General Film Company at its office in the city of New Orleans, Louisiana, by means of which the said S. K. Journey got possession of one reel of films, of the personal property of the General Film Company, of the value of seventy-five dollars of the lawful money of the United States of America, said films to be used by him for four days and no longer, after their reception by him in the city of Kosciusko, Attala county, Mississippi; that by virtue of said contract of bailment the said S. K. Journey came into possession of one reel of films at Kosciusko, Mississippi, on, to-wit, the twenty-second day of February, 1912, which said reel of films was numbered 3480, and was made by Pathé, and was entitled “American Field Artillery and Blue "Wong and the Violinist,” the same being the property of the said General Film Company, he having received said reel of films on account of the General Film Company, did then and there, on, to-wit, the day and year above stated, unlawfully, willfully, fraudulently, and feloniously embezzle, secrete, and convert to his own use said reel of films as aforesaid, without the assent and consent of the General Film Company, and which had been intrusted to him by virtue of said contract of bailment as aforesaid, and did then and there unlawfully, willfully, fraudulently, and feloniously taxe, steal, and carry away-said reel of films, of the value of seventy-five dollars, of the personal property of the said General Film Company.”

To this indictment the defendant demurred, and for grounds of demurrer assigned the following:

“First. Because said indictment charges no offense known to law.

“Second. Because said indictment charges ‘a contract of lease, rent, and hire, made by and entered into by and between said General Film Company, and the said defendant,’ but fails to state whether said contract was oral or in writing, so as to put the defendant on inquiry or notice of what he is called upon to plead to.

“Third. Because said indictment does not inform the defendant of the nature and kind of contract claimed to have been made by the General Film Company with the defendant, or set out a copy of the same, either in words and figures, or make an exhibit of the same to the indictment, or copy the same in the presentment.

“Fourth. Because said indictment does not allege that any demand was ever made upon the defendant for the possession of said property alleged to have been embezzled, that was duly authorized to receive the same from the defendant, so as to put him in default.

“Fifth. Because said alleged contract of bailment charged in the indictment under which the defendant stands indicted is too vague, indefinite, uncertain as to what it contains as to put the defendant upon notice, so as to enable him to prepare his defense.

“Sixth. Because said indictment does not point out with precision as required by law the contract of lease", rent, and hire, alleged to have been made between the General Film Company and the defendant, so as to inform the defendant of the nature of the accusation, and the offense charged, as required by law, before he can be compelled to plead or answer to the same.

“Seventh. Because said indictment charges the defendant with having agreed to pay the General Film Company one dollar for each reel of films shipped to him by the General Film Company, to be used by him for four days and no longer, after their reception by him in the city of Kosciusko, Miss., but fails to point out with exactness what’ four days he had a right to use the same, or that any demand was ever made upon him for the same by the party authorized to receive the same.

“Eighth. Because said indictment charges said defendant with having received a reel of films, but fails to say that he was ever called upon by any party an-thorized to make such demand or to receive the same from him, and that he refused to deliver the same on demand by such authorized party.

“Ninth. Because, if there was a contract of bailment as alleged in the indictment, or of rent and hire, made by the General Film Company and the defendant, upon a sufficient consideration, the same should be plainly stated in the indictment, so as to inform the defendant of the nature of the offense with which he-stands charged.

“Tenth. Because said indictment is founded on section 1136 of the Code of 1906, and said section has no application whatever, and does not embrace within its provisions the relation of bailment to a corporation, but refers only to relation of bailment as between private persons. So far as incorporated companies are concerned, said section has reference only to agents, direct-' ors, clerks, and servants, and does not specify bailees, or refer with certainty and particularity to persons bearing that relation to incorporated companies.”

' The demurrer was sustained by the trial court, and the state appeals.

We are unable to discover anything wrong with this indictment, and we think none of the grounds assigned for demurrer is well taken.

We think it only necessary to refer to the tenth ground of demurrer. It is the contention of appellee that the words “any trustee or factor, carrier or bailee,” in section 1136 in the Code of 1906, refer to trustees, factors, carriers, and bailees of private persons alone. We do not so construe the statute. It is our opinion that the language employed by the legislature refers to trustees, factors, carriers, or bailees of both artificial and natural persons.

Wherefore the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.