| Mo. | Nov 21, 1893
— At the January term, 1893, of the Jackson criminal court, the defendant was indicted, charged, under the first count, as agent of John Mulholland, with embezzling the sum of $107; under the second, with grand larceny of the same sum. At the same time he was arraigned and entered his plea of not guilty, and the cause was continued until the April term, 1893.
At said April term he filed a demurrer to the indictment, which was by the court overruled, whereupon he was tried, convicted, and his punishment assessed ■ at imprisonment in the penitentiary for a term of two years. After unsuccessful motions for new trial and in arrest he appealed to this court.
The facts in this case are that, in November, 1892, the defendant was employed as a mail carrier in the postoffice department at Kansas City, Missouri, at a salary of about $107 per month. November 30, 1892, defendant sold to John Mulholland the salary he would earn for the month of December for $100, giving an order to Mulholland on the postmaster for that sun. Then, to prevent the postmaster from learning of the loan, Mulholland appointed defendant his agent to collect the same. Defendant afterward sold the same salary to other parties, and when it became due col--, lected it from the government and refüsed to pay it over to Mulholland.
“Kansas City, Missouri, November 30,1892. “Mr. F. B. Nofsinger, Postmaster.
“For value received, I have this day assigned and sold to John Mulholland the amount due me for labor performed or to be performed during the month of December, 1892, in carrier department, and said Mulholland is authorized to execute such receipts as you may require, and also to endorse warrant (or check) in my name. I further state that I have no cause to believe that I will not earn the salary so sold and have no indication or knowledge of being discharged. I also agree that it is a part of this contract, that if for any reason I fail to earn full salary of $-, that this assignment and order for warrant (or check) shall continue in full force for the month of-, 189 — , and until said amount of $-has been earned. I read the above before signing.
“Respectfully,
“J. A. Williamson.”
The vital question in this case and the one upon which this prosecution and conviction must stand or fall is as to the validity of the contract between the defendant and Mulholland. If the contract was void because against public policy, then the defendant must be discharged,' not being guilty of any criminal offense under the statute.
It will be observed in the outset that the contract was for the sale of the unearned salary of defendant as mail clerk in the United States postoffi.ee at Kansas City, Missouri, for the month of December, 1892. The 'rule of law is well established in England that such contracts are absolutely null and void as being against public policy. This subject was under review in the
It will also be observed that in the cases of Brackett v. Blake, 7 Metcalf, 335; Mulhall v. Quinn, 1 Gray, 105, and Macomber v. Doane, 2 Allen, 541, which are sometimes referred to as announcing a different rule, the point of public policy was not considered by the court ia either of them, but that the questions involved in them were regarded as relating altogether to the sufficiency of the interest of the assignor in the future unearned salary to distinguish the cause from those of attempted assignment of mere expectation, such as those of an expectant heir. The court held in these cases, the expectation of future unearned salary being founded on existing engagements and contracts of employment, was capable of assignment, and that the existing interest was sufficient to support the transfer of the future unearned salary.
The case of State ex rel. v. Hastings, 15 Wis. 75" court="Wis." date_filed="1862-03-15" href="https://app.midpage.ai/document/state-ex-rel-state-bank-v-hastings-6598632?utm_source=webapp" opinion_id="6598632">15 Wis. 75, seems to announce a somewhat similar rule, but as in that ease the order for the unearned salary, with authority to collect the same, had been transferred to an innocent purchaser, the case turned principally on the question of estoppel. The question as to whether or not the assignment of the unearned salary was against public policy, was not raised or discussed in that case, either.
The reason of the rule is that the public service may not be so good and efficient when the unearned salary has been assigned as when it has not been, and “that the public service is protected by protecting
If an officer can assign his unearned salary for a month, he can, of course, assign it for a year, or longer, and it will hardly be contended in such case that he would be as efficient and diligent as if he were to receive his salary in person or .for his own benefit as it became due. For these reasons we think the contract for the sale and collection of the unearned salary of defendant void and of no effect, being against public policy.
It is, however, contended by the attorney general for the state that, even admitting that the assignment was void, yet, as defendant collected the money for and as the agent of Mulholland, he is guilty of the crime for which he stands convicted, and cites as sustaining this position, State v. Shadd, 80 Mo. 358" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/state-v-shadd-8007710?utm_source=webapp" opinion_id="8007710">80 Mo. 358; Com. v. Cooper, 130 Mass. 285" court="Mass." date_filed="1881-02-17" href="https://app.midpage.ai/document/commonwealth-v-cooper-6420200?utm_source=webapp" opinion_id="6420200">130 Mass. 285; Com. v. Rourke, 10 Cushing, 397; State v. Turney, 81 Ind. 559" court="Ind." date_filed="1882-05-15" href="https://app.midpage.ai/document/state-v-tumey-7045113?utm_source=webapp" opinion_id="7045113">81 Ind. 559, and Dunlap’s Paley’s Agency, 62. An examination of these authorities will show that they were all cases where the money or property which the defendants were charged with stealing or embezzling as agents was where the transaction out of which they grew and the money paid were illegal; and the law in such cases is that if money has actually been paid to an agent for the use of his principal, the legality of the transaction, of which it is the fruit, does not affect the right of the principal to recover it out of the agent’s hands nor divest him of his right thereto. But no such state of facts exists in the case at bar.
As for the morals of the transaction, in so far as the defendant is concerned, they are certainly not to be approved or commended; but dishonest and dishonorable conduct does not always constitute a criminal offense.
There are other questions raised by counsel for defendant in their brief; but, as the result reached necessarily results in a reversal of the judgment, it is not thought necessary to pass on them. The judgment will be reversed and defendant discharged.