Neal v. State

Taylor, J.,

(dissenting.)—After mature reflection *143I am unable to agree to the conclusion reached in the opinion prepared in this case by Mr. Justice Cockrell that under our statute a case of. embezzlement is made by the facts in proof. Those facts in brief are that the owner of quite a large sum of money exceeding a thousand dollars unintentionally and carelessly placed the receptacle that contained it in a basket of soiled clothing. This clothing, but not the money, was intentionally sent to the defendant to be laundered, the owner not dreaming that he was at the same time sending her his money. She discovered the mine of wealth of which she had so accidentally come in possession, and, listening to the voice of a temptér, appropriated it to her own use. There was no intentional, entrusting of the money by its owner to the defendant by reason of any confidence reposed in her in her capacity as his laundress, or in any other capacity—and in the course of her employment in such capacity there was nothing that called for, necessitated, or made it at all usual, propel' or customary for him to entrust her with a cent of his money—and qeither did the defendant accept, obtain the custody or. control, or acquire the possession of, the money in any capacity of trust or confidence intentionally reposed in her. She did not, therefore, occupy at any time towards such money the attitude of a trustee that is necessary, in embezzlement cas distinguished from larceny. Suppose arguendo, the owner of this money after placing it in the soiled clothes basket purely through accident and without intending to do so, and really without knowing that he had done so, had then sent what he supposed and intended to be soiled clothes only by his hired man of all work to be delivered to the defendant his laundress, and such hired man on the way discovered the money and appropriated it to his own use, would it have been larceny or' embezzlement ? I think it would be larceny pure and simple. And if so in his case, then it is equally *144so in the case of the laundress because in both cases there is with reference to such appropriated money, a total lack of that feature of trust reposed and trust accepted and violated that is necessary in embezzlement.

I cannot conceive of such a state of things as a. trust accidentally and unintentionally reposed by one person in another. Trust and distrust are both active sentiments and cannot be exercised passively, accidentally or unintentionally. I think the facts in proof make a case only of larceny here and not embezzlement. Commonwealth v. Hays, 14 Gray (Mass.) 62, S. C. 74 Am. Dec. 662.