104 Ky. 220 | Ky. Ct. App. | 1898
delivered the opinion of the court.
The appellant was tried and convicted for embezzlement of the funds of the National Life Association of Hartford, Conn., under the following statute: ‘‘If any officer, agent, clerk or servant of any bank or corporation shall embezzle, or fraudulently convert to his own use or to the use of another, bullion, money, bank notes, or any effects or property belonging to such bank' or corporation or other corporation or any person, which shall have come to his possession or been placed in his care or under his management as such officer, agent, clerk or servant, he and the person to whose use the same was fraudulently converted, if he assented thereto, shall be confined in the penitentiary not less than one nor more than ten years.” Ky. Stat., Sec. 1202. On the trial it appeared that appellant was the regular agent at Owensboro for the Fidelity Mutual Insurance Company of Philadelphia; but, learning that certain risks might be written in the Hartford company which could not be accepted in his own company, he, in connection with one Gant, who was an agent for the New York Equitable, procured an application for a $10,000 policy from one Thomas Soaper; appellant having first obtained permission and authority to do so from Gathright, the State agent of the Hartford company at Louisville. The application was signed by appellant as- solicitor, and Gathright was informed at the time it was forwarded to him that Soaper's note, amounting to $688, would be taken and discounted, and, after retention of forty per cent, thereof for appellant and Gant’s share, the balance would be sent to Gathright.
It is clear, we think, that appellant was not, within the meaning of the statute, the agent of the Hartford company,, having in his possession, care, or management, money, bonds, notes, or effects belonging to that company. The company never had him employed, and heard nothing of him, beyond seeing his name on the application as solicitor. The simple arrangement was that appellant and Gant, as solicitors under special contract with Gathright, were to forward the application of Soaper to Gathright, take the note of the insured, and, as joint owners of the proceeds, discount the paper, and forward the balance to other owners. The rule seems to be well settled that “in all cases where one receives money, a portion of which belongs to himself as a commission on the whole amount, he is not guilty -of embezzlement, though he converts the whole to his own use.” 6 Am. & Eng. Enc. Law, 475, and numerous cases cited. It is different if the whole fund collected belongs to the company, the agent getting his commission in the nature of a rebate out of the sum actually paid over. Clark v. Com., 16 Ky. Law Rep., 704 [29 S. W., 973.] We do not think section 633 of the statute, under the head of “Private Corporations,” and defining and regulating the conduct of insurance companies in this State, and providing that, not
