
    State v. A. G. Russell and W. W. Moore.
    [53 South. 954.]
    Criminal Law. Embezzlement. Evidence.
    
    Defendants are not guilty of embezzlement where it is not shown that the money‘which they are alleged to have embezzled ever came into their possession.
    Appeal from the circuit court of Warren county.
    Hon. H. C. Mounger, Judge.
    A. G. Russell and W. W. Moore were indicted for embezzlement. From a verdict for defendants the state appeals.
    A. G. Russell and W. W. Moore were agents for several insurance companies including the Palatine Insurance Company, and were both located in the city of Vicksburg, Mississippi. They were appointed by the said Palatine Insurance Company on May 1, 1907, and continued up to January 24, 1910, when the agency was taken from them by the company. The commission appointing them was in writing and empowered them:
    “To receive proposals for insurance against loss and damage by fire in Vicksburg and vicinity, and to countersign, issue and renew policies of insurance and to receive premiums in payment of policies issued by them subject to the rules and regulations of said company and such instructions as may from time to time be given its ■officers;”
    Under this commission they issued policies of insurance on behalf of the company against loss by fire and tornadoes and collected the premiums due for such insurance. Their compensation was fifteen, per cent of the premiums arising from insurance written and this they were authorized to deduct before remitting the balance to the company.
    They were charged with the premiums and had to pay the company its eighty-five per cent whether they collected the same or not, but were given sixty full days after the close of the month in which the insurance was written to remit the company its part, that is to say, for all the policies written in January they had until April 2d to settle with the company, and for that written in February until May 1st following. The defendants frequently took additional time and they finally got over three months behind before the agency was taken from them. At which time it appeared that they were indebted to the company in the sum of twelve hundred fifty-three dollars and seventy-nine cents. The company claimed that this sum represented premiums collected and embezzled and this defendants denied and on their part contended that it represented uncollected premiums; that they had never as a matter of fact remitted the company over eighty-five per cent, of all premiums actually collected, that in May, 1908, the Mississippi Home Insurance Company (for which they were also agents) failed, that they undertook to save harmless their customers who held policies in this company and accordingly wrote for them policies in other companies, mainly in the Palatine, in lien of the policies in the defunct Mississippi Home; that these customers had paid their premiums on the Mississippi Home policies and that they, Russell & Moore, assumed and undertook to pay the premiums on the new policies or at least such part of the same as would accrue in the time covered by the policies in the defunct company; that they advised the special agent of the Palatine of what they were doing and of the liability they were assuming and that he made no objection but allowed his company to keep the insurance thus written; that the liability arising from these substituted policies put them in default with the Palatine six hundred twenty-four dollars and thirty cents in addition to what they were then behind with said company and this they were never able to pay; that in addition to this they afterwards lost on other premiums a sum more than sufficient to overcome their deficit.
    The testimony of the only state witness failed to show any actual appropriation of funds, and it tended strongly to show that there had been none and it further tended to show that the whole sum in default by Russell & Moore had long before the.alleged embezzlement been paid and made good to the Palatine Insurance Company b.y Messrs. Janvier & Lee, the general agents of said company under whom defendants were employed, so that if any misappropriation of premiums had ever taken place it was not of the funds of the Palatine Insurance Company, but of its general agents, Janvier & Lee.
    
      J. R. McDowell, assistant attorney-general, for appellant.
    
      J. G. Bryson, Anderson, Vollor S Foster and Hirsh, Smith S Lando, for appellee.
   Whitfield, C.

The defendants conld not he guilty of embezzlement, if the money which they are alleged to have embezzled never came into their possession. The very utmost that can be claimed for the testimony in this record is that it' may show that the defendants are indebted to the insurance company. The action' of the court below was correct. Affirmed.

Per Curiam;. The above opinion is adopted as the opinion of the court, and for reasons therein indicated the judgment is affirmed.  