Watson v. State

70 Ala. 13 | Ala. | 1881

BRICKELL, C. J.

The indictment is founded on the statute '(Code of 1876, § 4384), declaring that “any private banker, commission-merchant, factor, broker, attorney, bailee, or other agent, who embezzles, or fraudulently converts to his own use, or fraudulently secretes, with intent to convert to his own use, any money, property or effects, deposited with him, or the proceeds of any -property sold by him for another, must be punished, on conviction, as if he had stolen it.”

The material question presented is, whether a hirer qf livestock, who, during the term of hiring, sells the same, in or out of the State, is guilty of the offense denounced by the statute. 'The offense is strictly statutory, and it will be seen, to constitute it, there must be the concurrence of three several facts. 1. The party accused must stand to the owner in the relation of private banker, or commission-merchant, or factor, or broker, ■or attorney, or bailee, or agent. 2. The money, property, or effects, must have been deposited with him, or must be the proceeds of sale, he having authority to sell. 3. The money, property, or effects, or the proceeds of sale, must have been embezzled, or fraudulently converted to the use of the accused, or must have been fraudulently secreted by him, with the intent to convert to his own use.

Bailment is a term of very large signification, and is defined as “ a delivery of goods in trust, upon a contract, express or implied, that the trust shall be executed, and the goods returned by the bailee, as soon as the purposes of the bailment shall be answered.”—2 Kent, 559. The accuracy of this definition is questioned by Judge Story, who defines a bailment as “ a delivery of a thing, in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of .the trust.” — Story on Bailments, § 2. There are different kinds of bailments, involving different rights and duties, upon the part of the bailor and bailee. When the genera] term, bcoibnent, bailor, or bailee, is employed, whether in a private writing, in a verbal contract, or in a statute, its real meaning can be ascertained only by reference to the subject-matter, and the circumstances attending its employment. The connection in which the term bailee is found in the statute under consideration, indicates very clearly that it is not used in its largest sense — -that it was not intended to comprehend every species of bailment, and all who might stand to the owner of money, property, or effects, in the relation of a bañlee. It is limited and confined to bailees of a particular class — those having possession wholly and exclusively for the benefit of the bailor; bailments where the owner parts with the actual possession, not with the right of property, general or special, and is not without right to resume possession.

The hirer of chattels for a term is a bailee, doubtless, but of a particular class or kind. The trust created is not exclusively for the benefit of the bailor, but rather for his own benefit. ILe acquires the exclusive right to the use and possession of the chattels during the term, and for the term is, in a large sense, the owner. If the chattel perishes, he loses the use, and yet is bound to pay the owner the recompense for the whole term. The right and title of the owner is not a present right and title, but is in reversion. It is not to a bailment of this character the statute refers, but to bailments in which the bailor and bailee stand in a fiduciary relation- — in which the bailee acts for or on account of the bailor, and not for himself. Each class of persons mentioned in the statute, other than bailees, are agents, whose duty it is to act for a principal; and if possession is entrusted to them, it is merely for the purpose of effectuating the -agency. With them bailees are associated ; but the word is restricted, by limiting them to bailees standing in the relation of agents: bailee or other agent, are the words of the statute— the equivalent of bailee standing in the relation of agent.

We do not deem it necessary to consider any other question involved, as we are of the opinion, that the appellant, being the hirer of the oxen, having the property in them, and the right of exclusive possession for the term, is not a bailee of the class to which the statute refers. In this view, the rulings of the Circuit Court are erroneous, and the judgment must be reversed, and a judgment here rendered discharging the appellant from further prosecution.