The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1897-04-06
VtGARlES OF TEE Law.
Accumulated Wisdom Of the Ages Fails
to Protect the Fruit Grower.
Embezzlement is Facilitated, Made
Safe and Easy, by the Law as
1t Stands in this State.

he raised a crop. providence was Klnu
to Cole in not sending a frost upon
his orchard in the spring time; or, if
Providence sends frostS to the fruit or
chards in California, Cole was still in
debted to Providence for the partially
which protected his orchard from the
devastating influences of cold weather
notwithstanding the general frost of
the country, Cole raised a crop. He
did not even have to smudge. In kind
ly clemency, the heavens of both day
time and night time smiled on Coles
orchard. But what a kind Providence
vouchsafed to him the firm of Gilbert
Brothers of San Francisco took from
him. He escaped frost which, at the
worst, might have taken only a portion
of his orchard, and fell into the hands
where he lost it ALL Cole is a hard
working man, pruned his orchard and
did all the cultivating himself, and with
very little assistance dried and cured a
crop of apricots, peaches and figs.
There to the value of about $500 hesent
to Gilbert Brothers, commission mer-
chants, San Francisco.
Time and time again Cole urged on
Gilbert Brothers to sell his cured fruits
and make return to him of the money,
and as frequently as they were appeal
ed to the San Francisco commission
house replied that they were doing the
best they could to find sale for the
fruit. They held this consignment
about six months, keeping the con-
signor constantly in the opinion that
they were waiting for satisfactory
price, assuring him that they would
sell, when in fact they had sold
To the surprise of Cole and other con-
signors Gilbert Brothers closed their
doors and announced that they had
made an assignment for the benefit of
their creditors.
Then in due course of proceeding the
doors were opened. Cole, the hard-work-
ing fruit rancher of Yolo County, whose
days of toll in the broiling sun and
whose nights of anxiety from the time
of frost to the close of the season had
been rewarded with a crop, expected
to lind the entire consignment, since he
had been assured that it had not been
sold. In this he was disappointed Gill
bert Brothers had sold his cired fruits.
had put the money in their pockets. and
had committed no greater wrong in the
eye of the law than to become debtors
10 Cole. The fruit rancher sought ad-
vice. Lawyers told him that it was
quite evident that Gilbert Brothers re-
celVed the fruit on consignment: that
the fruit, while in their possession, was
IN fact his property, not theirs; that
when they changed this property. which
belonged to Cole, into money. the mon
ey was Coles and not Gilbert Brothers
that the money took the place of the
fruit; that it represented the fruit:
that the fruit itself had been convert
ed into money; and if it had been con-
Verted into other fruit it still remained
the property of Cole. But Gilbert
brothers had used the money They
mad bought other property with it. or
they had spent it, or they had paid
debts with it.
AT this point curious phase of the
law arises. The best legal advice OBJ
talnable rendered the transaction in
this wise: If Gilbert Brothers at the
time they made the sale of Coles fruit
had made segregation of the money
upon their books; that is, If they had
entered up the sale in the amount of
SSoO, and charged Cole with commits
sion on the $500, and had given Cole
credit for the amount of the money
after first deducting the commission.
! then they had committed embezzlement
OF Coles money; but failing to have
MADE the segregation herein referred
TO- that they had a right to absorb the
money, to pay debts with it, to buy
property to squander it, to spend it in
| rlotous living, or do anything they
pleased with it without other liability
than simply becoming Coles debtor.
In this rendering of the situation
there was time and place at which
IL was the duty of Gilbert Brothers to
nave made the segregation, and that
time was when they had sold the fruit
ana got the money But intending to
commit moral enbezzlement. without
mourning its legal consequences. Gill
bert Brothers did not make the segre
CATION which they should have made:
hence their embezzlement of Coles
money waS facilitated by the law.
made safe, and to the extent it was
made safe constituted an inducement to
the crime.
Ihere was something which it was
.heii uuty 60 90. 1t was wrong in
them not to do it. They perpetrated
wrong in neglecting to make the
segregation, and this wrong becomes
the buiwark of their defense against
any criminal charge which LAYS them
liable only as insolvent debtors. Here
the wisdom of the ages is clearly man
ifested. The fruit industry is the ha sic
nrOSnQrif1y md
commonwealth. The fruit rancher who
has worked hard on his ranch all sum-
mer has no opportunity for marketing
ms 1ruit The commission merchant is
part or the machinery through which
frult growing becomes the basis of
the wealth and population of Califor-
MA But the law has been so con-
structed and so construed that all the
commission merchant has to do to pro-
tect himself against criminal liability
for criminal conduct-criminaI in hot h
! act and intent-is simply to commit
another wrong; that is, to fail to make
| the segregation upon his books of the
| money which is obtained from the sale
of the fruit rancher's fruit.
If statute was passed declaring that
when one holding goods on consignment
| sells them he is Obliged to make the
segregation of the proceeds of the sale.
setting apart to the consignor his por-
ton and deducting for himself the com
mission which is his due, then to en-
bezzle the whole sum, as was done in
the case above referred to. would be a
| felony.
| If the law should affix a penalty for
| failing to make the segregation the
omission in the present law woud no
cured and the fruit syro,varc 10 +ho