The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-02-15
INFORMATION QUASHEO.
No Law in Montana 10 Punish As
signess Who May Be Guilty
Of Embezz,emsnt
An Important Question Decided
by Judge Hunt In the Thomp-
son Case Yesterday.
Defendant Discharged aud His Bondsmsn
ACKNOWLEDGMENT Also as 20 Proper
Form OF IN Information.

uurrer 90 the information upon on'
around "a the case OF the state va Harry
Thompson. charged with embezzlemenl
while acting ~ assignee OF e.. w. Jackson
the musical instrument merchant The in
formation was Quashed. Thomson was
ordersd discharged. and his bondsmsn
were released. The decision ia a VERY inn
portant one and is Of very general interest
The Legislature OF 1895 amended the orig
inal embexzlemsnt statutes OF Montana,
but the amendments only covered embeE'
zemsnts by agents. servants and elerhs
from their principals and employers Ia
most Of the states OF the union the stat
utes expressly provide that embszElements
by assionses of insolvent debtors. and By
trustees generally. may be punished, and
even 10 states from which ths MontsnA
Law was evidently copied there are clear
provisions 10 punish sssigneeL The
opinion simply decides tina, under ihe Law
Of 1893 no conviction Of an assignee Of an
insolvsnt debtor can be had. IL has been
stated that the statutes IN relation 20 lar
csny by bAiless may apply. or ths laws con
osrninq breaches OF trust; but smbszzls-
nsnt By one who holds q legal titls-thst
IT, who appears 20 be she owner OF the
property charged 20 have been siolen-is
NOT punishAble under the Law which
Thompson is charged 90 have violated.
The information against Thompson, 90
far as the disputed part ia involved. reads
a. follows; Harry Thompson IL accused
by the county attorney Of embezElsment.
The said Harry Thompson, on the tWsntieth
day Of November, A. D.. 1898. At the county
Of LAWS and Clarke, in the state OF Non
tans, being then aud there the servant
clerk and agent OF George W. Jackson. did
then and there By virtue OF said employ
msnt receive AMI take into bis possession
ak hundred dollars, lawful money Of the
United States Of America. more particu-
lar description Of which 10 10 Gfhant IN
known, OF she value Of six hund cd dollars
two violins Of the value Of one hundred and
twenty dollars one piano OF the valus OF
six hundred dollars. one guitar Of the value
Of twentJ-seven dollars, sheet music and
music book OF the value OF mfr dollar, OF
the money, goods and property OF ths said
George W. Jackson. and did then and there
fraudulently and foloniously embezEle and
convert the same to bis OWE use with intent
TO steal the same"
L. w. Tools, for the defendant. and the
county attorney agreed upon statement OF
facts for the purpose Of raising the ques-
tions of Law before a trial. PART OF this
son was the assignse under egular deed
Of assignment from Jackson 10 him, and
vas in the possession OF the goods assigned
a. the time OF the alleged embeIzlement
The law under which the information
was drawn reads as follows; III any clerk,
apprsntiee, servant. agent or any other
persons, whether bound OF hired uP0n com
mission, percentage, salary, or Otherwise
who shall have received or been entrusted
With any money, goods ehattels or other
ter, principal or employer. and 30
away With the money, goods, chattels or
other property. or any part thereof with
intent 20 steal the same ana dsffaui his
master, principal or employer thereof, con-
trary 20 the ttust sHd confidence IN him re-
posed by his said mastsf, principal or en-
ploysr; or Who. being In the serves Of his
said master or employer, shall embezzls
she said money, goods. chattels or Other
property, or any part thereof, or otherwise
shall convert the same TO his own use with
like purpose TO steal she same every per
son so offending shall be punished in the
manner prescribed by law for felonioualy
stealing p Opsrty Of the value Of The ar
ticlss 80 taken. embszzled or conYertei."
The defendant demurrsd upon the
grounds already published in The lSDrPES-
DEST, and summarized as follows: First
That the Information is not conducted "in
the name and by the authority Of she state
OF MontanH. Seoond-lhat 10 does not
show upon its face that an examination and
commitment was had, or that the same was
filed By leave of oourf. Third-ThRt under
the facts agreed 10 Jackson was not the
owner of tae goods as charged. Fou tn
That under the agreed facts Thompson was
neither the servant. clerk or agent OF jack
son. and Jackson did not sustain the relA-
tiOn Of master or EN- rlOyor TO hin. Fifth
That the relation mentioned In the law
under which the information Was dawn -
charged In she ooniunetive. thus rendering
the information unce.tain aud eontradio-
tory.
The Judge expresses no opinion upon the
second ana hftu grounds OF the demurrer,
hut. Rs will be seen By the following oPia-
ion, quashes the information upon the
third ana fourth grounds, and accidentally
refers TO the inst ] ne ruling Of the court
10 as follows:
LIS clear. under the stip ulsiion Of facts
entered into between counsel that the de-
fendant, who 10 charged with embezzlo-
ment. - an assignee OF al insolvent debtor
under a deed Of asEignment. 10 not a ser
want, nor cleik, nor an agent Of tie as
HiQnor-one Of which positions he must 90
cupy TO be Brought within she terms Of the
Law under which be is charged. IL has been
laid down By the best writer's that an as
aignse OF an insolVent debtor holds legal
title 20 property passed to him By tie deed
OF assignment. his authority isnot a mere
power, but he Is possessed OF a Legal title
o Lhnaeu bN ANNM VI N04NtfHlEef which
diveats the assignOr OF all interest Of every
kind which be may have ia the property
conveyed. leTOnd en- equitable right TO
pay the debls and secure a reoonVsyanes
or 10 claim = residue remaining unsold
after ale debts are discharged" The as
siRnso "a, therefore. not the agent OF TIE
HasignoT. nor uudef his control o direction
as oontem plated By the statuts under which
the Information is drawn. / think the true
rule 10 that an agent. AZ referred 20 IN section
II q the smbezzlemsnt statute Of 1893 i'm
ports grin oipal and implies employment
service. a delegated authority 20 do some
thing in the name aud stead Of the pin
Cipal.
Nor Is an assignee a servant Of an as
siRnor, because the hdueiaTy discretion be
exercises. ''unshacklsd By fred rulss," 10
inconsistent with such a character An
assignee has no master suoh a. IL c0ntsm-
plated Ia tue relationship existing between
him aud his assiRnor; on the contra y. ho
ia q master himself. aud may even exercise
his authority ~ employing the sssignor a.
his servant 30 help him Ia his duty Bur
Iell on assignments. MbaTton's Grim.
Law-Eighth Ei.-seo. 1913, Calkins ".
ttate. note-JS Al. dec. lao
Nor - an assignee clerk Of the as
sign0r. because tle term CLERK" means one
Who is restricted % the performance Of
specific acts IN specific way, aud On, Who
- under the direct control Of an EMPLOYER
IA the prescribed line Of hia duties. Il
needs ne extended sreumsut 20 demon
strate shat the defendant 10 not within any
Of TIE classes OF persons enumerated la
tue statute. aud The demurrer % ths iufor-
nation Il therefore sustained a. on the
fourth q ound the cot
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