The statute of 1869, under which the indictment in this case was found, declares that, “If any warehouseman, storage, forwarding or commission merchant, or his or their agents, clerks or employees, shall convert to their own use the proceeds or profits arising from the sale of any fruits-, grain, flour, beef, pork, or any other goods, wares or merchandise, otherwise than as instructed by the consignor of said goods, and shall, on the demand of the consignor, fail to deliver over the proceeds or profits of said goods after deducting the usual per cent on sales as commissions, shall be deemed guilty of a misdemeanor,” etc.
This statute being penal in its nature, must receive a strict construction. An actual demand, to be made by the consignor upon the commission merchant, is an indispensable prerequisite to a conviction.
The complaining witness testifies that, when he went into the place of the accused, in Chicago, the latter said: “I know what you have come for, but it is impossible forme to pay you anything now.” The witness stated that the accused knew Avell enough what he had come for, and this Avas all the demand he claimed to have been made.
In a civil cause, where a demand was necessary, such evidence might be sufficient for a jury to find a waiver.
But the statute under consideration requires both a wrongful conversion of the proceeds and a failure to deliver them over after a demand made by the consignor, to constitute the offense.
The demand should be made in such a manner as to fairly apprise the merchant that he would be subject to the penalties of the statute if he failed to comply, else he might, by the very course of dealing assented to by the consignor, be entrapped into the consequences of a criminal offense unawares, and without any wrong intention. Such a result would be repugnant to the spirit of our criminal code, and, as we believe, to the intention of the statute in question.
The evidence was not sufficient to sustain the verdict, and the court should have granted a new trial.
The judgment of the court below must be reversed and the cause remanded.
Judgment reversed.