Neal v. State

Cockrell, J.

—Upon application of the plaintiff in error, it being made satisfactorily to appear, that the omission of the motion for new trial from the bill of exceptions was due wholly to an accidental and mechanical misplacing of the pages of the transcript, a correction has been allowed and a rehearing granted.

There was evidence from which the jury was permitted to find the following facts: Mrs. Henderson, the wife of the prosecuting witness, by accident, put into the basket containing soiled clothes, a cloth bag containing over two thousand dollars in paper money, which was delivered to her laundress, Lilly Neal. Upon open*141ing the bundle at her home Lilly discovered the money and at once exclaimed to one who- was present, “Look here, Frank, what Mrs. Henderson put in the clothes, I will take it back to her now;” but was afterwards persuaded or coerced by Frank not to do so. She subsequently denied having received the money. The single question presented is whether statutory embezzlement has been made out, the contention being that the acts constitute larceny rather than embezzlement.

In Finlayson v. State, 46 Fla. 81, 35 South. Rep. 203, we held that one who obtains possession by trick, device or fraud with intent at the time to appropriate the property to his own use, the owner intending to part with the possession only, may be guilty of larceny, but in Wilson v. State, 47 Fla. 118, 36 South. Rep. 580, we refused to interfere with a conviction of embezzlement, there being sufficient in the evidence upon which to base a finding- that the original taking was innocent and that the felonious intent was formed after the possession was innocently acquired.

In the case now before us, no trespass of any kind was committed by Lilly when she discovered her accidental custody of the money and her intent at once to restore that custody to the rightful owner was manifested and declared. So far the case lies clearly on the side of embezzlement rather than of larceny, see Queen v. Ashwell, 6 Q. B. Div. 190, but does it yet measure up fully to the crime of which conviction was had?

In Tipton v. State, 53 Fla. 69, 43 South. Rep. 684, we said that one who is not lawfully the agent or servant of another and does not pretend or hold himself out to be such, and holds no relation of trust or confidence towards his alleged principal or master, is not within the statute. Tipton was indicted on two counts, in the one for embezzling from R. A. Lamb, and in the other from the Express Company, and was convicted of the *142latter. The evidence showed plainly that Lamb’s property was taken and that Lamb alone employed Tipton, the Express Company being concerned neither with the property converted nor with the employment of Tipton.

Lilly Neal acquired the custody of the cloth bag containing the roll of money, only by virtue of her employment. We may admit that possession in its narrow, technical sense was never rightfully hers, but that admission does not help. Our statute is much broader than that of other states and includes whatever may have come into an employe’s possession, care, custody or control by reason of his employment. The statute is not in terms restrictive to a conscious act on the part of the owner or employer and there is here present the conscious act on the part of the employe voluntarily accepting for a time the custodianship of the money recognizing her obligation to return it to its rightful owner, for whom she was then holding it, a self-imposed but accepted bailment, so to speak, imposed only by reason of the fact that the holder was entrusted with employment by the owner and thereby had secured possession of the larger receptacle that contained the soiled clothes, as also the bag of money.

A search of the authorities has given us little or no assistance, because of the more limited definition of embezzlement usually obtaining. A close consideration of our own statute, however, leads us to the conclusion that the peculiar facts of this case come within its condemnation and that the verdict is not against the evidence.

The judgment is affirmed.

Shackleford, C. J., and Whitfield, J., concur;

Hocker, J., concurs in the opinion.