Pullam v. State

CLOPTON, J. The indictment contains three separate counts, charging the defendant and his wife, Celia Pullam, with embezzlement, larceny, and receiving stolen money. The wife was acquitted; and the appellant was found guilty as charged in the first count only. The legal effect, under our rulings, is an acquittal on the second and third counts, and renders unnecessary the consideration of their sufficiency. The material and decisive question arises on the charge of the court, as follows: “ If, at the time Jane Buckhalter brought the money to the house, and handed it to Celia Pullam to keep for her, Kobert Pullam was present, and knew that his wife received the money, and consented to her receiving it to keep; and if Robert Pullam afterwards fraudulently converted it to his own use, he could be convicted under the first count.” The count charges embezzlement, as defined and declared by section 4377 of the Code. In order to convict of the statutory 'offense, charged in the indictment, it is essential that the prosecution establish the three following propositions: 1st, that the accused was the clerk, agent, servant, or apprentice of a private, person ; 2d, that the money came into his possession by virtue-, of his employment; 3d, that he embezzled, or fraudulently-converted it to his own use, or fraudulently secreted it with intent to convert to his own use. If it were conceded that his wife was an agent in the meaning of the statute, it does not follow that the appellant was also an agent, merely because he knew that his wife had received, and consented to her receiving and keeping the money. A married woman is capable of being appointed and acting a’s-the agent of a third person, without the consent of her husband. Coverture does not take from her capacity in this respect. .She may execute a power without his cooperation; and her acts, as agent or trustee, impose no legal liability on him. His knowledge and consent does not confer, by operation of law, any authority on him to do any act, in the scope of his wife’s agency, so as to bind her principal. The unity of the marriage relation does not operate to delegate to the husband an agency specially and personally conferred on the wife. Bnt, was the wife an agent in the meaning of the statute?’ [34] While the term agent has a wide application, and comprehends many classes of persons, who are specially designated otherwise, it is not employed in the section with this large signification. As used in .the statute, it is to be construed in its popular sense; meaning “one who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter, and to render an account of it;” a substitute. — 1 Douv. Law Dict., 135; Hinderer v. The State, 33 Ala. 415. Agent, as employed in this section, imports ■a principal, and implies employment, service, delegated authority to. do something in the name and stead of the principal — an employment by virtue of which the money or property came into his possession. The employment need not be permanent. It may be temporary, or occasional ;■ and general, to transact any business; or special, to make a single transaction. There being many classes of persons standing in the relation of agents, but not included in the general term as used in section 4377, section'4384 was enacted to remedy the defect, which provides: “Any private banker, commission-merchant, factor, broker, attorney, bailee, or other agent, who embezzles, converts to his own use, or fraudulently secretes with intent to convert to his own use, ariy 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.” In Watson v. State, 70 Ala. 13, construing the term bailee, it was held, that it was not employed in the large signification of bailment, but is “limited and confined to bailees of a particular class — those having possession wholly and exclusively for the ■ benefit of the bailor.” The deposit of the money with the ■wife of appellant was, on the undisputed facts, a mere naked bailment — -a deposibum — which she held wholly and exclusively for the benefit of another. Sections 4377 and 4384 create separate and distinct offenses, relating to the same acts, but differing as to the relations in which the persons stand who commit them. The word agent ” is employed in both sections, and ■must be construed to apply to different classes of persons. It :is manifest, that as used in section 4377, it does not include the classes of persons who are otherwise specially designated in section 4384. ' The offenses created by both sections are of equal grade, and the punishment is the same — the one does not include the ■other. A defendant, indicted .under one section, can not be ■convicted of the offense declared by the other. And besides, if the appellant feloniously took, and converted to his own use, the money deposited with his wife to keep, without her association in the crime, he is guilty of larceny, and can not be con [35] victed on an indictment founded upon either section or both, without the addition of a count for larceny. Reversed and remanded.