State v. Kent

Section 23, ch. 95, Gen. St., enacts that “if any officer, agent, clerk, or servant, of any incorporated compauy, or if any clerk, agent, or servant, of any private person, or of any copartnership, * * * embezzles, or fraudulently converts to his own use, * * * without consent of his employer or master, any money or property of another, which has come to his possession or is under his care, by virtue of such employment, he shall be deemed to have committed larceny.” To sustain an indictment under this section of the statute, the money or property charged to have been embezzled, or fraudulently converted, must be-the money or propcrt}7 of another than the person indicted.

The defendant was collector of pew rents for a church corporation, and acted as such, under a special and express agreement, by which, as compensation for his services, he ivas to have “ five per cent, of all the pew rents, no matter Aidio collected them.” The effect of this agreement Avas to vest in defendant an undivided one-twentieth interest in the rents collected, and to that extent to make him an owner of the same jointly Avith the corporation. In other words, the rents collected were not the money or property of the corporation, but the joint property of the corporation and the defendant. They Avere, therefore, not the property of another than the defendant. It follows that the defendant is not properly indictable, under the section of the statute before cited, for his alleged embezzlement and fraudulent conversion of the same, or any part thereof. Holmes's Case, 2 Lewin, 256, cited 2 Archbold Cr. Pr. & Pl. 569, note ; Reg. v. Bren, cited 2 Bish. Cr. Law, § 335, note 3; Rex v. Hoggins, Russ. & Ryan, 145 ; Com. v. Stearns, 2 Met. 343, 349 ; Com. v. Libbey, 11 Met. 64; Com. v. Foster, 107 Mass. 221; 2 Bish. Cr. Law, §§ 355, 356.

This conclusion practically disposes of the case in defendant’s favor. Were it necessary for us to pass upon the *43other points presented bn the argument, we should be much inclined to doubt whether, independent of the agreement, the course of dealing between the corporation and the defendant, by which the former acquiesced in his practice of depositing the reuts collected, on his own general account, and of treating the deposits as his own, was not such as to divest the corporation of its specific property in the deposits, and to establish between it and the defendant the simple relation of creditor and debtor. See Com. v. Libbey, 11 Met. 64; Com. v. Stearns, 2 Met. 343. If this doubt be well founded, the result would be the same as that before reached upon the construction of the agreement.

Judgment and order refusing new trial reversed.