53 Fla. 69 | Fla. | 1907
F. M. Tipton, hereinafter called the defendant, was indicted in the circuit court for Jackson county for the crime of embezzlement. He was tried, convicted and sentenced to serve two years in the State prison. From this judgment and sentence he seeks relief by writ of error.
There are nine assignments or error, the first of which is as follows:
1. The court erred in overruling the motion to quash the indictment herein. This motion is evidenced to us in and by the bill of exceptions. It is not found in the record proper. In the case of Hearn v. State, 43 Fla. 151, 29 South. Rep. 433, this court said As motions to quash indictments are based wholly upon matters of record, and
The first assignment of error, therefore, can not be considered.
The second, third, eighth and ninth assignments of error are abandoned, and will not be considered.
The fourth assignment of error is based upon the denial of the motion for a new trial.
The third, fourth, fifth and sixth grounds of the motion for new trial have been argued and will be considered together. They are: (3) The verdict is contrary to the evidence. (4) The verdict is against the charge of the court, and is not supported by the evidence. (5) There was no evidence under which the defendant could have been convicted under the second count of the indict-, ment. (6) The evidence shows that defendant was the agent, servant, employee of R. A. Lamb, and not of the Southern Express Company.
The indictment contained two counts. The first count charged that the defendant was the agent, servant and employee of .one R. A. Lamb, and as such agent, servant, employee of said R. A. Lamb, had in his custody, care and control a certain sum of money, said money being the property of said Lamb, by virtue of such agency, em
The court charged the jury in substance that, in order that the defendant be found guilty on the first count of the indictment, the evidence must show beyond a reasonable doubt that the defendant was the agent or servant or employee of R. A. Lamb, that as such agent, servant or employee, he received into his - possession or custody by reason of that employment the moneys in which the property or title was in Lamb, and in which Lamb held the special property or the right to the custody by virtue of his employment by the Southern Express Company and embezzled the same. “If, on the other hand, the defendant was an agent, servant or employee of the Southern Express Company, and as such servant, agent or employee, received into his custody or possession by virtue of that employment money belonging to the Southern Express Company and fraudulently embezzled or converted same to his own use or secreted with intent to do so, and that it occurred in Jackson county, Florida, and within two years immediately before the indictment was found, then the jury should find the defendant guilty under the second count of the indictment.”
The verdict was: “We, the jury,, find the defendant guilty as charged in the second count.”
The defendant urges that the defendant, if guilty at all,
One O. G. McCormick, who was the route agent for the Southern Express Company, and checked up the express office at Grand Ridge and found the shortage there, testified, on the point of agency or employment of Lamb and the defendant Tipton, as follows: “I checked Mr. R. A. Lamb on the 2nd day of February, 1905. I found Mr. Tipton in charge of the office when I went there. Mr. Tipton was there while I was checking up the office. He gave me check and cash and check to balance the amount due, and I gave him a receipt. I made out the receipt to the office. That money was the money of the Southern Express and Mr. R. A. Lamb was the agent. The Southern Express Company looked to Mr. R. A. Lamb for the money from the office. This shortage was paid up by Mr. R. A. Lamb. He sent me the money.”
R. A. Lamb, upon the question of agency and employment, testified: “I live at Grand Ridge, Florida. I was the agent for the Southern Express Company, a corporation, at that place. This boy Tipton was my employee on a salary of $22.00 per month during the time I was agent for the company. It was my duty to sign or issue express money orders. They were usually issued and signed by the defendant, in my name and with my consent.. He started to work for me on the 8th of December, 1904. He had done practically all the work in the office. I employed him myself on a salary of $22.00 per month for the time
The defendant testified that he was employed by the agent R. A. Lamb, that he acted as agent for the company, doing most of the work, and sometimes in his absence Mr. Lamb did the work.'
Mr. Bishop in his New Criminal Law, Yol. 2, Sec. 333, says: “In considering whether or not the defendant was a 'servant/ an 'agent’ or the like, we should bear in mind that * * * in the law of embezzlement, there can not be a clerk without an employer, a servant without a master, an agent without a principal.” 1 Clark’s Cr. Law, p. 274, it is said: “The gist of the offense is breach of trust, and it is held that the statutes do not apply to appropriation of property by any person unless he held a relation of confidence or trust towards the owner, and had possession of the property by virtue of such relation, and converted it in violation of the trust reposed in him.” “The word agent, as employed in the statute, is used in its popular sense, meaning one who undertakes to, transact some business, or to manage some affair, for another by authority and on account of the latter, and to render an account of it.” Am. & Eng. Ency. Law, 1st. Ed. 471.
“A person in the employ of another, who in the discharge of his duties is subject to the immediate direction and control of his master, is a servant. The words 'clerk’ and 'servant’ imply in some one the power of control.” Am. & Eng. Ency. L. 1st Ed. 999. According to these principles we hold that the evidence does not show that Tip-
Lamb said: “This boy Tipton was my employee. I was responsible. The money was mine until it was turned over to the express company.” The defendant was subject to the direction and control of Lamb, the agent, not under the direction and control of the express company through Lamb. The company did not know Tipton.. He was a-stranger to it. He was not employed directly or-indirectly by the company, so far as is shown by the evidence. See Regina v. Thorpe, Dears. & B. C. C. 562, cited and quoted in Roscoe’s Cr. Ev. p. 449, side page 451.
But it is said that the defendant was the agent or servant de facto of the Southern Express Company. In 10 Am. & Eng. Ency. Law, 2nd. Ed. 1002 it is said: “A person may be a servant de facto, and so be embraced in the statute. He need not have been formally appointed as such. It is enough to render one a servant de facto within this doctrine, if he acts as servant for another, and the other acquiesces.” See also page 1006 in same authority.
The defendant did not hold himself out as the agent of the company. The money orders were signed by the defendant in Lamb’s name and with Lambs consent. He received the money in the course of his employment for Lamb .and paid it over to Lamb. The defendant was not the agent in fact, neither was he the pretended agent, or do factoi agent of the express company.
The defendant could not legally be found guilty on the second count of the indictment. The evidence does not sustain the verdict. ' The verdict is contrary to the charge of the court.
The judgment is reversed and a new trial awarded.