(Police Court of Columbus.)

August, 1900.

#### THE STATE OF OHIO v. THOMAS X. JONES.

*Charge: Embezzlement—*

(1) . Where the manager or employe by the terms of his employment with his employer is required to immediately pay over or deposit in bank subject to the draft of the principal the specific sum or proceeds received by him from each sale, the sum so received is the money or property of his employer and cannot be converted to his own use by the manager or employe for an alleged sum due upon his salary or for money claimed to have been, or that has been paid for the incidental expenses of carrying on the business.

(2) . Where the manager or employe so employed receives money and neglects and refuses to pay over the same as required by the terms of his employment, the wrongful and illegal act sufficiently characterizes the intent.

EARNHART, J.

The accused some years ago entered into the employ of the Plano Manufacturing Company as its general manager to sell farm implements without the state of Ohio. By the express and written terms of his employment he was to deposit in bank in the name of the Plano Manufacturing Company all money received from any source whatsoever by reason of his employment.

He received at first a salary of $1,800.00 per year and traveling expenses, and later this was reduced toll,600.00 a year and traveling expenses.

His compensation was paid in monthly payments upon his statements made to the company, and upon the back of each check sent in payment, the accused indorsed the sum received was “in full for salary and traveling expenses to date.”

The company also furnished the accused with funds to pay incidental expenses of the Branch House, the principle office being in Chicago, Illinois. The sum so furnished for incidental expenses was deposited in bank in the defendant’s name as agent and used to defray legitimate office expenses, and at the end of each month the accused was to render to his employer a statement of the account and could make a requisition in advance for sums desired in the prosecution of the business.

He continued manager for the company until the close of the yeár 1899. He is now accused of at various times receiving by virtue of his employment some $1,500.00 or $l,8u0.00in money from sales for his employer and converting the same to his own use without ever informing the company of his reception of said sums or depositing them in bank in the name of the company. He admits the reception of the various-sums, but claim there were legitimate branch office expenses that were rejected from time to time, and that his salary was increased in September, 1899, from $1,500.00 to $1,800.00, and that he appropriated this money of the company so received by him in compensation for the alleged balance of the sums-due him from the Plan Manufacturing Company for incidental expenses of the office and unpaid salary.

“Where a defendant is entitled to a commission out of the funds collected for his services, the entire sum, until a division is mad®, is the property of his employer.” Campbell v. State, 85 Ohio St., 75.

Even where the services of the employe are paid for in whole or in part by commissions or profits on the sales, he has no right of property in the goods or money received from them, and a-felonious conversion to his own use of the money would constitute the crime-of embezzlement.

Commonwealth v. Smith, 129 Mass., 109.

“The law presumes that every man intends the consequences of his acts. Wrongful acts, knowingly or intentionally done, can neither be justified nor-excused on the ground of innocent intent.” U. S. v. Harper, 33 Fed. Rep., 481.

If the defendant had upon the receipt of a certain sum then and there held it and immediately notified the company *105that he had and held it in taot and would not pay it over until his certain compensation as manager then due was paid, a more serious question might arise as to his criminal intent, but he cannot without the knowledge and consent of his employer become his own paymaster out of the money of the company. Such a use of his employer’s money and management of its business involves legal and moral turpitude.

The mere fact, if true, that the employer did not compensate the employe for his services will not authorize "a wrongful conversion of his money. The employe has his remedy for any breach of contract. The implements or money -received from the sale of the same were by the express provisions of the contract the money or property of the employer and the employe was bound by their specific terms of his employment to deliver the specific proceeds of any sale to the principal, and he had no authority to withhold or convert the same for an alleged balance due him. The money belonged to the employer, and any dealings with it by the employe were in a trust capacity, in no way affecting or destroying the right of property in the principal.