
    State of Ohio v. Pohlmeyer.
    
      Indictment for embezzlement of moneys — By agent of foreign corporation — No defense that corporation failed to comply with sections 148c and 148d, Revised Statutes.
    
    On the trial of an indictment for the embezzlement of moneys coming into the possession of the defendant as the agent of a foreign corporation it is not a defense that the corporation had failed to file with the secretary of state the statement required by sections 148c and 148d of the Revised Statutes.
    (Decided January 24, 1899.)
    Exceptions of the prosecuting attorney to rulings of the Common Pleas court of Hamilton county.
    At the January term, 1898, of the court of common pleas of Hamilton county, Pohlmeyer was placed upon trial on an indictment charging that as an employee, to-wit: the agent of the W. L. Douglas Shoe Company, he, the said Pohlmeyer, did unlawfully and fraudulently embezzle and convert to his own use, without the assent of his said employer, the sum of $287 which had come into his possession and care by virtue of his said employment. The slate offered evidence tending to show that Pohlmeyer was employed on August 11, 1896, in Hamilton county as the agent for the W. L. Douglas Shoe Company a corporation organized under the laws of Massachusetts, doing business as a corporation with its principal office at Brook-ton, Massachusetts, and further tending to show that about the time alleged in the indictment the sum of money charged, being the property of said company, came into the possession of Pohlmeyer as such agent, and that he embezzled and converted ■ the same to his own use without the consent of his employer. Thereupon the defendant called as a witness Charles Kinney, the secretary of state of Ohio, who testified that as such officer he is the custodian of the records, papers and certificates of foreign corporations filed in the state of Ohio, is personally familiar with such records, papers and certificates that he has carefully examined them and finds from such examination that the W. L. Douglas Shoe Company has not filed with the secretary of state the certificate required under section 148c and section 3269-5, and that said company has filed no paper or papers, certificate or statement whatever with the secretary of state since the passage of the act. To this testimony the prosecuting attorney objected. His objection was overruled and to that ruling he took an exception. The defendant thereupon rested his case. The court thereupon instructed the jury that in view of this evidence the accused was not and could not be the agent of the W. L. Douglas Shoe Company, and there could be no conviction under the indictment and further instructed the jury to return a verdict for the defendant, to which instruction the prosecuting attorney excepted.
    
      
      John G. Schwartz, prosecuting attorney and Thomas II. Darby, assistant prosecuting attorney, for plaintiff.
    it appears to be the settled doctrine in this country, and possibly in England, that a servant in his own wrong, or, as in this case, a servant who receives on behalf of his employer, or a servant who exceeds his authority in receiving the property of his employer, is estopped, upon a criminal prosecution for the embezzlement of such property, to deny that he had the authority which he assumed.
    The authorities upon the liability of such an’ agent to account to his principal, who may be a wrong-doer, are very clear. A few extracts will serve to show the trend of judicial opinion: Story on Agency, section 347; Dunlap’s Paley’s Agency, 62; Wood on Master and Servant, section 202; Whart. on Agency, sections 26, 250; Mechem on Agency, section 526; 2 Bish. Cr. Law, section 354; Com. v. Shober, 3 Pa. Sup. Ct. Rep., 554; State v. O'Brien, 94 Tenn., 79; section 2547 Codeof Tenn., 1896; People v. Hawkins, 64 N. W. Rep., 736; Leonard v. The State, 7 Texas App., 417; Ex parte Record, 11 Nev., 287; Tumey, 81 Ind. Rep., 559; Wharton, Criminal Law, Vol. 1, 10th edition, section 1038; Rex v. Becall, First C. & P., 454; Commonwealth v. Smith, 129 Mass., 104; People v. Royce, 106 Cal., 173; Queen v. Tankard, 1 Q. B. D. (1894), 548; State v. Spaulding, 24 Kan., 1; State v. Shadd, 80 Mo., 358; 2 Moody C. C., 249; Newburg Co. v. Weare, 27 Ohio St., 343.
    
      II II. Rulison, Jr., for defendant.
    The testimony showed that the W. L. Douglas Shoe Company was a Massachusetts corporation.
    
      The defendant offered on his behalf evidence tending to show that the said W. L. Douglas Shoe Company had not complied with sections 148c and 3269-5 of the Revised Statutes.
    Therefore, the conclusion must be that John H. Pohlmeyer is not an agent of the W. L. Douglas Shoe Co., although were it not for this statute he would be, without any possible question, and therefore he cannot be convicted in this case.
    The Douglas Shoe Company may be estopped from denying Pohlmeyer as its agent, but Pohlmeyer has done nothing by which the public or any one dealing with the Douglas Shoe Company was defrauded through any fault of his.
    The Douglas Shoe Company was not a corporation “in this state.” It could not exercise corporate rights in this state. An unlawful corporation cannot maintain an agent; or, rather, a body of persons assuming to act as a corporation cannot, as a corporation, maintain an agent.
    This was first decided in England in 8 C. & P., 642, the case of Rex v. Wm. Hunt; Com. v. Cain 14 Bush, 525 (Kentucky); Corry v. The State, 55 Ga., 236; State v. O'Brien, 94 Tennessee, —.
    The Ohio law, the embezzlement statute, it will be observed, section 6842, reads, “An agent of ‘ any person' who embezzles,” etc.
    The record shows that the individuals assuming to act as the Douglas Shoe Company did not take steps required by the laws of Ohio to constitute themselves a “person."
    
    Criminal statutes should be strictly construed. Wharton, Criminal Law, section 1035.
    The word “person” as used in the Ohio Revised Statutes includes corporations.
    
      Without having been authorized by the secretary of state to do business as a corporation, the Douglas Shoe Company was not a “corporation” or a “person” in Ohio.
    Pohlmeyer was not an “agent” in any sense of the term.
    He was appointed as “manager,” his only duty was to receive and sell shoes at a fixed price.
    He had no fiduciary discretion.
    He acted strictly and .literally under and by directions from the home office, “to sell shoes at fixed price and deposit the proceeds.”
    He was at most a “servant,” if any thing. Gravatt v. State, 25 Ohio St., 162.
    Or a bailee under section 6849a, Revised Statutes.
    The company did not have, did not attempt to maintain, an “agent” in Ohio.
   By the Court:

It is required by sections 148c and 14S>d of the Revised Statutes (the latter section being referred to in the record as section 3269-5) that every foreign corporation incorporated for the purpose of profit, before it proceeds to do any business in this state, shall make and file with the secretary of state a statement in such form as the secretary of state may prescribe, showing the number of shares of authorized capital stock of the company, the par value of each share and other facts affecting its organization and solvency and the proportion of its stock which is represented by property owned and used in Ohio. The sections clearly disclose the purpose of the general assembly that foreign corporations shall be put upon the same footing with domestic corporations with respect to fiscal burdens, to the business which they may carry on in the state and to service of judicial process within the state. They do not disclose a purpose on the part of the general assembly to make booty of the property of a corporation which does not comply with the provisions of the act. Under the statute defining embezzlement (section 6842) the offense consists in converting to one’s own use ‘ ‘anything of value which comes into his possession by virtue of his employment as * * * agent * * * servant or empk^e.” The statutory definition of the offense regards the actual relation of the agent, servant or employe, and not the legality of the mode in' which it was created nor the extent of the authority conferred. And the rule that one who receives money or any other thing of value in the assumed exercise of authority as agent for another, is estopped thereafter to deny such authority, applies in criminal prosecutions as well as in civil actions. 2nd Bishop’s New Criminal Law, section 364. State v. Spaulding, 24 Kas., 1; State v. Tumey, 81 Ind., 559; State v. O'Brien, 94 Tenn., 79; People v. Hawkins, 106 Mich., 479.

Exceptions sustained.  