Ward v. State, 73 So. 865

Ward v. State

73 So. 865 | Miss. | 1916

Etheridge, J.,

delivered the opinion of the court.

This case was affirmed at a former day of this term of the court and is now before us on suggestion of error, and it is insisted that by affirming the case the court *28necessarily held that the crime of embezzlement could be committed by one partner in a partnership transaction. The error relied on in the appeal principally was a refusal of an instruction that, if Ward and prosecuting witness were partners in the venture, then the jury should find for the defendant; and the appellant contends in the arguments that his evidence in the trial showed a partnership. The case was affirmed on the theory that the defendant’s evidence failed to show a partnership, there being no dispute but what the state’s evidence negatives a partnership. On cross-examination defendant testified as follows:

“Q. Now let’s see; you say that this man furnished the money? A. Yes, sir. Q. To buy the land? A. Yes.' Q. He furnished all the money? A. Yes. Q. He was to give you half of the profits and stand all the loss, is that true, if there was loss? A. Yes. Q. And was himself to pay all the expenses? A. He was to furnish all the money. A. He was to furnish all the money and pay all expenses? A. Yes. Q. Every bit of the expenses? A. Yes. Q. Do you tell this jury that this man furnished you the money to buy lands for him and was to pay all the expenses, every nickel of expense, and to give you half of the profits of his land when he sold it when you was not out a nickel for a thing; is that what you tell the jury that is what he undertook to do? A. My time and work. Q. He was going to pay all the actual expense, to put up all the money, and take all the risk? A. Yes.”

It will be seen that under the appellant’s testimony prosecuting witness was to furnish all the money, the timber and lands were to be bought for him, and he was to stand all the loss, and that Ward was to only have half of the profits, if there were any, for his compensation in the transaction. We do not think that there was any partnership, even on the defendant’s evidence, and that a partnership is not to be presumed from the mere division of profits., There should be some joint liability *29and some joint ownership of tlie. partnership property, if there was a partnership, in each partner, and the proof in this ease is insufficient to show a partnership, and the partnership is not presumed in dealings in real estate. 30 Cyc. 354, 362; Clark v. Emery, 58 W. Va. 637, 52 S. E. 770, 5 L. R. A. (N. S.) 503. It will be seen in the monographic note to this case that the questions of partnership turn on delicate distinctions, hut we do not believe it is shown by this record. The' suggestion of error is therefore overruled.

Overruled.