ON REHEARING.
Opinion delivered January 22, 1912.
Hart, J.It is earnestly insisted by counsel for appellant that the- language of section 1837 of Kirby’s Digest plainly precludes the idea that its provisions were intended to extend to others than clerks, apprentices, servants, employees, agents and attorneys, of private persons and corporations and to like employees of incorporated companies Immediately following the phrase “or any person employed in any such capacity” is the following: “who shall embezzle or convert to his own use, * * * without the consent of his master or employer, any money, ” etc. They urge that the phrase, “without the consent of his master or employer,” limits the employees intended to those of private persons, copartnerships or private corporations. They urge that neither the school district nor the members of the school board could consent that its employees or agents should embezzle or convert to their own use the funds belonging to the school district. School funds and the manner in which they are dealt with are definitely regulated by law, and the school board can not consent that school funds should be embezzled or converted to the use of the employees or agents of the school board. A majority of the court are of the opinion that this argument is sound and unanswerable, and that the allegations made in the indictment do not bring appellant within the category of persons enumerated in section 1837 of Kirby’s Digest. While recognizing the strength and force of the argument of learned counsel for appellant, I am still inclined to the views expressed in the original opinion. It follows, however, from the opinion of the majority that so much of our original opinion as holds that the indictment charges appellant with the offense of embezzlement, under section 1837 of Kirby’s Digest, is overruled. The remainder of the opinion is still adhered to, and for the reason hereinafter given will be adopted as a part of this opinion on rehearing.
The Attorney General contended that the indictment was valid under section 1839 of Kirby’s Digest, but on account of the views expressed in our original opinion we did not deem it necessary to determine his contention in this respect. It now becomes necessary for us to do so. Section 1839 reads as follows
“If any carrier or other bailee shall embezzle, or convert to his own use, or make way with, or secrete with intent to embezzle, or convert to his own use, any money, goods, rights in action, property, effects or valuable security which shall have come to his possession or have been delivered to him, or placed under his care or custody, such bailee, although he shall not break any trunk, package, box or other thing in which he received them, shall be deemed guilty of larceny, and on conviction shall be punished as in cases of larceny. ”
In construing this section of the statute in the case of Wallis v. State, 54 Ark. 611, the court held:
“First. The statute defining the crime of embezzlement by ‘any carrier or other bailee’ (Section 1839, Kirby’s Digest) is not confined to bailees of the generic class ‘carriers,’ but embraces all bailees.
“Second. An attorney who has collected funds belonging to a client is a bailee and not a debtor of such client.
“Third. An attorney employed under the act of March 31, 1885, to collect demands due to the school fund is guilty of embezzlement if he converts to his own use money so collected, notwithstanding the act provides that he may retain as a fee for collection 10 per cent, of the gross amount collected.
“Fourth. To constitute the crime of embezzlement under this statute, it is unnecessary to prove a demand.”
So in this case, under the allegations of the indictment and the proof made, we are of the opinion that appellant occupied toward the school fund that came into his possession the relation of bailee and not that- of debtor.
In our original opinion we made quotations from the cases of the State v. Costin, 89 N. C., 511, and People v. Gallagher, 100 Cal. 466, and we see no substantial reason why the principles of law announced in those cases should not apply in a case like this. The proof in the case shows that whenever the school district had any bills to pay a warrant for the amount owed by the school district would be signed in blank, and appellant as secretary of the board would afterwards fill in the amounts. The warrant in question in this case was signed in blank, and was designed to pay S. H. Mann for legal services performed for the school district. Pursuant to the usual custom, it was delivered to appellant with directions for him to fill it out for the proper amount and pay Mann. Appellant made the warrant payable to himself for a greater amount than was due Mann. The warrant shows on its face that it was given in payment of legal services to Mann. Appellant received it for the express purpose of paying Mann for his legal services. He then fraudulently converted to his own use $100 of said amount. He can not now be allowed to take advantage of his own wrong and evade the law by saying that he had no right to raise the warrant and by that means come into possession of more money than was necessary to pay Mann. The statute is too broad and comprehensive in its purpose to allow such a distinction to destroy in a large measure its usefulness. It is insisted that under the principles announced in the cases of Settles v. State, 92 Ark. 202, and Dotson v. State, 51 Ark. 122, the defendant is not guilty of embezzlement under this section of the statute.
In the Settles case we held that a delivery of chattels upon a sale made on condition that the title shall pass on the payment of the purchase money at a future day is something more than a bailment. It gives the buyer a conditional title, and for this reason we held that the defendant was not a bailee within the meaning of the statute.
In the Dotson case a horse was delivered to the defendant to be sold for the bailor, and the court held that if it was expressly or impliedly understood that the defendant should deliver to the bailor the money received for the horse he was a bailee, for it was within the meaning of the statute. The court said: “The word ‘bailee, ’ when used in statutes declaring what acts of embezzlement shall constitute a public offense, is not to be understood,” says Mr. Wharton, “in its large, but in its limited sense, as including simply those bailees who are authorized to keep, to transfer, or to deliver and who receive the goods first bona fide and then fraudulently convert. ”
“When it does not appear that any fiduciary duty is imposed on the defendant to restore the specific goods of which the alleged bailment is composed, a bailment under the statute is not constituted, though it is otherwise when a specific thing, whether money, securities, or goods, is received in trust and then appropriated. ” (Citing 1 Wharton, Cr. Law, (9 ed.) § 1055 and other authorities.)
In the application of these principles to the present case, we find that the money of the school district was delivered to the defendant in trust for the specific purpose of paying Mann for legal services owed him by the school district, and that the defendant in no sense was to receive any benefit from the transaction, or to acquire any interest in the money received by him. The money belonged to the school district, and was received by the defendant solely, and solely and exclusively for the benefit of the bailor, and in no sense for the benefit of the bailee. Hence the defendant was a bailee in its limited or restricted sense. They strongly insist, however, that because the defendant acquired possession of the excess, which he converted to his own use contrary to his duties in the matter, he did not receive it bona fide and is not guilty of embezzlement. As said by Mr. Bishop, why should not the rule of estoppel, known throughout the entire civil department of our jurisprudence, apply equally in the criminal? If it is applied here, then it settles the question; for by it when a man has received a thing of another by virtue of his fiduciary relation to him, he can not turn around and deny that he received it in that capacity. 1 Bishop’s New Criminal Law, (8 ed.) § 364. The defendant here received the money of the school district by virtue of his relation of trust and confidence to the members of the school board, and the money was received wholly and exclusively for the benefit of the school district. That is to say, it was received by him for the sole and express purpose of paying a debt of the school district, and he can not take advantage of his own wrong and escape the penalties of the statute by saying that he was not a bailee of the excess for the reason that he received it by virtue of his own wrongful act. The fact remains that he came into possession of it by virtue of the fiduciary relation he sustained to those in control of the fund. See, also, State v.Costin, 89 N. C. 511; People v. Gallagher, 100 Cal. 466, cited and commented on in our original opinion to which reference is here made.
As stated in our original opinion, no demurrer to the indictment was filed. A motion in arrest of judgment was filed; but under our statute the only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. The indictment, stripped of its verbiage, leaves sufficient matter to apprise the appellant that the charge against him is for embezzlement. The language of the indictment, so far as respects the nature of the offense and the character of the crime charged, sets forth the fiduciary relation or the capacity in which the appellant acted and the means by which the funds came into his possession; and it also charged a fraudulent conversion of the funds by the appellant, and that they belonged to the school district. Indeed, it may be said that the appellant was apprised by the indictment of the precise nature of the charge made against him. Fulton v. State, 13 Ark. 168.
It follows that the motion for a rehearing will be denied.