Case v. State

¶1— The prisoner was indicted and convicted of larceny from a store-house. Several articles, consisting of shoes, thread, cloth, &c., are alleged to have been felo-niously stolen by him. The jury found the aggregate value of the goods to be eighteen dollars; but did not assess the separate yalue of any article. The prisoner moved to arrest the judgment for this reason, but the court overruled his motion, and certified the point to this court.

¶2We think the decision of the court upon this point was correct. There is no essential difference between the provision contained in the Code, and the statute contained in Clay’s Digest, and which we construed in Jones v. The State, 13 Ala. 153. In that case, no value was found; here, the aggregate value. As the object of the statute was, to enable the court to render judgment against the prisoner in favor of the party to whom the goods belonged, and as no judgment can be rendered unless the verdict finds the separate value of each article, the two cases stand upon the same ground. In neither could a judgment for the price of the goods be rendered against the prisoner. But to allow him to take advantage of this, when the omission has not even the most remote bearing upon his guilt or innocence, and when he is put in a better condition by the omission, would be to disregard the numerous decisions of this court which hold, that a party cannot reverse a judgment which could not possibly have worked any injury to him.

¶32. As .respects the ruling of the primary court in the instructions given to the jury : We think there was some evidence tending to prove that the prisoner was the agent of Crockett to whom he had sold the goods. Whether this evidence was sufficient to establish this fact, was a question which the jury should have passed upon, and which is virtually excluded from their consideration by the charge.

¶4*25If the prisoner was a mere servant of Crockett, having the charge of the goods without authority to dispose of them for Crockett and as his agent, then he is properly convicted under this indictment; but if he was Crockett’s agent, with power not only to keep the store open that customers might not be lost to the establishment, but to furnish goods to such customers in behalf of his principal, Crockett, then he falls within the influence of section 3143 of the Code, and must be tried under that section.

¶5The line of distinction between a servant and an agent, who comes under the character of bailee, as respects the of-fence of larceny, is not very clearly drawn by the books; yet they all agree, that very important results depend upon it. If a servant steal the goods of his master, left in his charge, he was by the common law guilty of larceny. If, however, an agent who is a bailee embezzle them, not breaking the bulk, he was considered as guilty of a breach of trust merely.

¶6Without entering at large upon the discussion of the distinction in this place, it may be sufficient to say, that if the goods were left in charge of the prisoner merely to keep with the store-house or room, and without any superadded duty respecting them, (as, for example an authority to sell and dispose of them,) he must be regarded in the light of a servant; but if, in the contemplation of the parties, the prisouer had authority to proceed and sell the goods to customers, on behalf of the prosecutor, Crockett, under a contract, express or implied, to account for the proceeds, we are unable to perceive upon what principle he could be distinguished from agents or factors, pro hac vice, charged with the sale of merchandise as in ordinary cases. It does not require that there should be a special contract, fixing upon compensation, or limiting the period for the termination of the agency. We must have regard to the nature aud character of the service or acts to be done; we must determine whether the prisoner was substituted, in the matter of the custody and sale of the goods, in the place of the principal, invested with discretion in the transaction of the business as his agent, or bailee, and binding the principal by his.acts done within the scope of his employment; or whether, as a mere servant, he was to act as he was acted upon, or directed by, the master — in other words, whether he *26bad more than the bare charge of the house and goods to keep them for the master, and to abide his bidding in reference to them.—3 Archb. Cr. Pl., (by Waterman,) pp. 443, et seq.

¶7The court lost sight of this distinction in its charge, and the effect of the charge is, to exclude from the jury the consideration of the evidence tending to prove an agency, and in this view, such instruction was erroneous. —Dill, guardian, &c., v. Camp, 22 Ala. 249; Edgar v. McArn, ib. 796; Holmes v. The State, 23 ib. 17.

¶8If the prisoner was an agent, as contemplated by section 3143 of the Code, lie must be convicted, if at all, under that section. He is then guilty of petit or grand larceny according as the jury may ascertain the value of the articles stolen. On the other hand, if he be a mere servant, and not an agent within the meaning of the section above referred to, he may be found guilty under section 3170, for stealing from a storehouse. He is also guilty under this last section, if at the time he obtained his agency he did so with the felonious intent of stealing the goods. — 2 Waterman’s Archb., p. 384, note.

¶9Judgment reversed, and cause remanded.