Dick v. State

Pearce, J., delivered the opinion of the Court. The traverser in this case was indicted in the Circuit Court for Allegany County for embezzlement, was tried before a jury, convicted and sentenced to confinement in the Maryland House of Correction for one year. Section 103 of Article 27 of the Code declares that any “cashier, servant, agent or clerk to any person, or to any body corporate, who shall fraudulently, embezzle any money * * * received or taken into possession by him, for or in the name, or on the account of his master or employer, shall be deemed to have feloniously stolen the same from his master or employer.” The indictment contained two counts; the first charged that the traverser “being then and there employed in the capacity of agent for the Weiderman Brewing Company, a corporation ¹³ under the laws of the State Kentucky, did by virtue of his said agency and by virtue of his said employment as agent, and whilst he was the agent of the said Weiderman Brewing Company as aforesaid, and so employed as aforesaid, receive and take into his possession the amount of one hundred and twenty-five dollars current money, and of the value of one hundred and twenty-five dollars current money, for, and in„the name of, and on the account of the said Weiderman Brewing Company, his employer and principal, and the said money then and there * * * fraudulently and feloniously did embezzle;” And this count then proceeded to charge that the accused so feloniously did steal, take, and carry away said money, the property of the said Weiderman Brewing Company. The second connt charged the larceny of said money by the accused.

He demurred to the first count and this demurrer was overruled, when he demurred to the whole indictment and this demurrer was also overruled. It is not apparent upon what ground these demurrers were interposed. The indictment was in the usual form, and as the defendant’s counsel did not allude to the demurrers, either in his brief, or in his argument, we may conclude they were abandoned. During the course of the trial three exceptions were taken, as follows: The first witness called by the State, Marshall Windom, testified thus: “Question.

Where do you live? Answer. In Lonaconing. Question.

What is your business ? Answer. Manager for the George Weiderman Brewing Company. Question.

Who is the George Weiderman Brewing Company ? Answer. A corporation of Newport, Kentucky. Question.

How long has it been in existence ? Answer. I do not know how long. Question.

Who is the president ? Answer. Charles Weiderman. ¹⁴ Question. Who is the secretary ?

Answer. .C. J. Wagener. Question. Have they a branch in Lonaconing ? Answer. ,Yes, sir.

Question. Who has charge of that branch ? Answer. I have charge of that branch.” The defendant at the close of these questions and answers objected to all the foregoing testimony as tending to show the existence of the corporation as such, and that the witness Windom, was its manager, and the objection being overruled, the first exception was taken to that action of the Court.

The best evidence; doubtless, of the existence of a corporation, would be the production of its charter, or certificate of incorporation, though secondary evidence of general reputation is admissible for that purpose. But the evidence under consideration here was given without any objection, and so went to the jury, and the objection as made came too late. In Dent v. Hancock, 5 Gill, 127 , the Court said: “Whether the objections taken to the testimony were well founded or not, it is deemed unnecessary to inquire because they were not made in due time. It is the duty of counsel if aware of the objections to its admissibility, to object to the testimony at the time it is offered to be given, or if unapprised of such objections at the time the evidence had gone to the jury, he must raise his objections within a reasonable time thereafter.” Here the third question put to Mr. Windom was notice to the defendant that the answer would result in the admission of the very character of proof which he claims to be insufficient, and it was his duty then to object to the question and so to exclude the answer or secure an exception.

This he did not do, but permitted the State to complete its proof before an objection was interposed. The rule in Hancock v. Dent has been consistly followed in this State in numerous decisions, among which are Bell v. State, 57 Md. 120 ; Lamb v. Taylor, 67 Md. 93 ; Slingluff v. Builders Supply Co., 89 Md. 562 , and we must approve that ruling in this case. The State then further proved by Mr. Windom that the de ¹⁵ fendant was an attorney at law, engaged in the collection of claims, and that by the authority of the Weiderman Brewing Company, he placed in the hands of the defendant for collection for that company, a claim held by it against E. C. Mace, a former manager of the company in Lonaconing, amounting to $125. Mr. Mace proved that he paid this claim in full to the defendant, and Mr. Murphy, a Justice of the Peace at Lonaconing, who issued the warrant upon this charge of embezzlement proved that the defendant at the hearing before him admitted he had received the money and had not accounted for it, and that he had a charge of $30 for legal services to the Brewing Company.

The State then rested, and the defendant moved to strike out all the testimony in the case as being insufficient to show that the defendant was the agent of the Brewing Company, and received the money as such, and contended that the defendant as attorney, was not acting as an agent within the meaning of sec. 107 of Art. 27 of the Code. The Court overruled this motion and refused to strike out the testimony, and the second exception was taken to that ruling. The appellant’s argument is that although the ordinary meaning of the word “Agent,” is one who serves some other person as his principal, that cannot be the meaning of the word as used in this statute, since the Legislature has provided for the punishment of the offence of embezzlement by eleven different sections covering different classes of persons in different capacities, and in none of these sections is an attorney at law specifically mentioned, while there is nothing in the testimony showing any other relation than that of attorney and client between the appellant and the Brewing Company. But it will be seen that section 103, under which this indictment is drawn, makes general provision for the punishment of those who embezzle money or effects delivered to, or received by, them for or on account of their master or employer and that the other ten sections make special provision for cases where the relation of master and employer does not exist.

Thus section 100 relates to the stealing, using or altering of a will, deed, ¹⁶ or patent. Section ioi to the secretion of a will. Section 104 to breaches of trust by executors, administrators, guardians, &c. Section 105 to persons engaged in transportation of merchandise, who dispose of or pledge such merchandise; and so on in the other sections dealing with' this offence.

So that it comes at last to the simple question whether an attorney at law is an agent for his client. In Commonwealth v. Libbey, 11 Metcalf, 66, the Massachusetts Court had before it an indictment of a person employed by the publishers of a newspaper to collect their bills on commission and the language of the statute was substantially the same as that of our own. The lower Court instructed the jury that the defendant was the,servant or agent of the publishers, and he was convicted, but this was reversed on appeal, the Court saying, “In the case of a domestic servant, and, to some extent, in the case of a special agency, the right of property and the possession continue in the principal, and a disposal of the property would be a violation of the trust, and an act of embezzlement. But cases of commission merchants, auctioneers, and attorneys authorized to collect demands stand upon a different footing; and a failure to pay over the balance due to their employers, upon their collections, will not, under the ordinary circumstances attending such agency, subject them to the heavy penalties consequent upon a conviction of the crime of embezzlement. ” In People v. Converse, 74 Mich. 478 , it was held by the Supreme Court of that State, under a statute similar in language to ours, that if an attorney collects money for his client, he, in so doing acts as the agent of his client as well as his attorney; and if in either case, after making the collection, he appropriates the money to his own use, with the intention of depriving the owner of the same, he is guilty, of the crime of embezzlement, although there was another section of the statute which specifically provided for the failure of attorneys to pay over collections made, the offence being made a misdemeanor, and not a felony and on that ground, Judge Campbell dissented from the judgment of the Court.

These two cases ¹⁷ illustrate the divergence of judicial opinion upon the question involved in this case, but it would be of no avail to enter into a discussion of their comparative weight and authority, or to express our own views, because, as expressed in the brief of the Attorney General, the motion to strike out the testimony of the State was in legal effect a demurrer to the evidence and an attempt to obtain an instruction from the Court to the jury to render a verdict for the defendant, and it is well settled that this cannot be done in Maryland, where the jury in criminal cases are the judges of the law, and of the legal effect and legal sufficiency of the evidence, and the Court only determines the admissibility of the evidence. In Franklin v. State, 12 Md. 246 , Judge Legrand said, “The jury in a criminal case were not bound by the interpretation of the Court of the meaning of a law, but were free to construe and apply it according to their own judgments.” In Broll v. State, 45 Md. 360 , the Court said, “No Court in this State can be required by the counsel or jury, to give instructions either upon the law or the legal effect of the evidence given at the trials In Bloomer v. State, 48 Md. 538 and 539, the defendant moved to exclude from the jury all the evidence in the case upon which the State relied to support the three counts of the indictment, because they said the evidence is not sufficient in law to support the indictment. This motion was denied and on appeal the Court said, “The motion of the appellant requires the Court to pronounce and decide upon the legal effect of the evidence. It affirms the evidence should be excluded from the jury because it is not sufficient in law to support such counts.

It is not based upon the inadmissibility of the evidence or its want of relevancy, but proposes to the Court to say virtually the traversers shall be discharged without day, and the jury withdrawn.” The judgment therefore was affirmed. In Beard v. The State, 71 Md. 280 , Judge Alvey, said, “The Judge