54 Kan. 277 | Kan. | 1894
It was disclosed upon the trial that, in 1887, Wilson Soule and William W. Munsell, as partners, established a bank at Ingalls, in Gray county. It was called “The Bank of Ingalls.” It was not incorporated. Each partner owned one-half interest. The capital was about $900. On the 4th of February, 1890, John D. Yeiter was engaged by Soule & Munsell as an employé of the bank. He was directed by them, at the time of his employment, to keep the books and accounts of the bank, the list of deposits from its customers, to pay checks to its customers, to draw drafts on its correspondents, to pay the ordinary and legitimate expenses of the bank, and to perform the general duties of a bank cashier. His salary was $30 a month.
At the time that Yeiter was employed, the total assets of Soule & Munsell in the Ingalls bank were $4,797.15. Wilson Soule resided at Rochester, N. Y.; William W. Munsell resided at Dodge City, in this state. The latter was the general manager for the firm of Soule & Munsell, doing business under the name of the Bank of Ingalls. Yeiter was subject to the direction and control of the firm. Munsell prescribed the system of bookkeeping of the bank, and had general supervision thereof, and also of Yeiter. He would visit the bank to look after its affairs as often as four to six weeks; sometimes more frequently, sometimes less frequently. When at the bank, he usually looked over the daily statements, which were supposed to show its condition, and would give such orders to Yeiter concerning the firm business as he deemed advisable. Yeiter continued as an employé of Soule & Munsell at the Bank of Ingalls until April 10, 1893. About that time, Munsell examined the bank books, became dissatisfied, and ascertained, as he believed, that Yeiter had fraudulently appropriated large sums of money of the firm with which he had been intrusted. Subsequently, he was arrested, tried and convicted under the second clause of § 1, chapter 104, Laws of 1881.
“Any clerk, apprentice, or servant of any private person, or of any copartnership, except clerks, apprentices or servants within the age of 16 years, . . . who shall embezzle or convert to his own use, or shall take, make way with or secrete with intent to convert to his own use, without the assent of his employer, any money, bank bills, treasury notes, goods, rights in action, or valuable security or effects whatsoever, belonging to any such person or copartnership, . . . which shall have come into his possession or under his care by virtue of such employment, office or trust, shall upon conviction thereof be punished in the manner prescribed by law for stealing property of the kind or value of the article so embezzled, taken, or secreted.”
2. cilasinTended. “Obviously the amendment [of chapter 83, Session Laws of 1873, as amended by chapter 104, Session Laws of 1881,] was intended to reach such agents as attorneys, collecting agents, etc., who collect money for their principals, and to make their improper failure to pay on demand a crime. . . . While this stands as an amendment of a section, it is complete in itself. It names the persons, describes the offense, and affixes the penalty. It was doubtless aimed at lawyers and such other collecting agents as are not liable to even a civil action until after demand, and its language was purposely made general, to include all such agents, for whomsoever they were acting. . . . The two offenses charged [under § 1, ch. 104, Session Laws of 1881, § 88, Crimes Act, ¶ 2220, Gen. Stat. of 1889,] are in law just as distinct as if they were covered by separate sections of the statute; the fact that they appear in one section does not alter their legal character.” (The State v. Bancroft, 22 Kas. 207, 208.)
If the defendant, while he was in the service of Soule & Munsell, paid out any of their money, or used any of their property under their direction or that of William W. Mun-sell, the general manager of the firm, which he is charged with having wrongfully appropriated, he is entitled to prove that such moneys or property were paid out or used by him as directed. He cannot be held criminally liable for making loans in good faith, if he had authority so to do, or in paying out money or disposing of property belonging to the firm, as directed. It is immaterial whether the money or property of the firm used by him, under its direction, was paid out in the usual course of banking business, or for other purposes. The defendant can be held criminally liable only for the money or property of the firm which he embezzled or converted to his own use without the assent of the firm.
“Embezzlement is the act of fraudulently appropriating to one’s own use what is intrusted to one’s care and management; as the embezzlement by a clerk or servant of his employer’s money,
“Embezzlement differs from larceny in this, that the latter implies a wrongful taking from another’s possession; but embezzlement denotes a wrongful appropriation of what is already in the wrongdoer’s possession.” (Max. Crim. Proc. 120-122.)
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.