
    Foster v. The State of Ohio.
    
      (Decided November 17, 1930.)
    
      Messrs. Patterson, O’Brien '& Holland, for plaintiff in error.
    
      Mr. Ray T. Miller, prosecuting attorney, and Mr. Neil W. McGill, for defendant in error.
   Vickery, P. J.

This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county to reverse a judgment of conviction obtained against the plaintiff in error, John R. Foster, who was defendant in the court below.

From the record, argument of counsel, and the briefs, we learn that Foster had been indicted by the grand jury of Cuyahoga county on three several and distinct counts, the third of which is the only one that need concern us here, inasmuch as the jury found the defendant, plaintiff in error here, not guilty on the first and second counts. We will therefore confine our attention to the last count, which reads as follows:

“And the Jurors of the Grand Jury of the State of Ohio, Within and for the body of the County aforesaid, on their oaths, in the name and by the authority of the state of Ohio:
“Do further find and present that John R. Foster, on the 11th day of June, 1929, at the county aforesaid, being the agent, to wit, accountant of a certain banking company, to wit, The Continental Bank of Cleveland, Ohio, and as snch agent to wit, accountant, being then and there entrusted by and on behalf of the said banking company with the safekeeping, preservation and supervision of the moneys and funds of the said banking company, unlawfully, wilfully and fraudulently then and there embezzled, abstracted, and wilfully misapplied and converted to his own use certain money, funds and credits of the amount of One Thousand Dollars, the property, funds and credits of said bank, with intent then and there to injure and defraud the said banking Company, which said moneys, funds and credits then and there had been taken into the possession of the said John R. Foster by virtue of his said employment as agent, to wit, accountant as aforesaid.”

It will be noted that this count is framed under Section 12474, General Code of Ohio, which is as follows:

“Whoever, being president, director, cashier, teller, clerk or agent of a banking company, embezzles, abstracts, or wilfully misapplies the moneys, funds or credits of such company, or, without authority from the directors, issues or puts forth a certificate of deposit, draws an order or bill of exchange, makes an acceptance, assigns notes, bonds, drafts, bills, of exchange, mortgages, judgments or decrees, or makes a false entry in a book, report or statement of the company, with intent to injure or defraud such company, or other company, body politic or corporate, or any person, or to deceive an officer of the company or an agent appointed to inspect the affairs of a banking company, shall be imprisoned in the penitentiary, at hard labor, not less than one year nor more than ten years.”

The third count of the indictment, framed under the above statute, charged the defendant with embezzling the sum of $1,000 as agent, to wit, accountant of the Continental Bank, and the errors complained of by plaintiff in error are that the court in his charge did not properly define the word “agent,” but treated the word “agent” as synonymous with “accountant.” In fact the court in his charge used the words of the indictment, “agent, to wit, accountant,” and at the close of the charge, when the trial judge asked counsel for the state and for the defendant whether either had anything further to request, counsel for the defendant asked instructions to the jury upon the term “agent,” and asked to have it more fully defined and explained by the court to the jury, which the court refused to do.

Now, there is a grave question in this lawsuit as to whether the defendant could be convicted of embezzlement under the evidence in this case, inasmuch as the statute above referred to nowhere refers to an accountant. The prosecutor in drawing this indictment apparently was aware of that, and so used the words, “agent, to wit, accountant,” and the court likewise slurred the matter over by referring to “agent, to wit, accountant.”

Now the history of the growth of the statute which has made various officers, agents, attorneys, etc., liable to be prosecuted for embezzlement is interesting, and is set out and analyzed fully by the Supreme Court in the cases of State v. Channer, State v. Sawyer and State v. McLaughlin, 115 Ohio St., 350, 154 N. E., 728.

In these cases the Supreme Court refused to sustain a conviction because, although from the record one was apparently guilty of some offense, nevertheless, inasmuch as he did not come within the persons named in the statute, the court refused to legislate because, though this man might be guilty of some offense, he could not be reached by that statute, and the court wisely said that the clearing up of defects, if there were any, was a matter for the Legislature and not for the courts; that a criminal statute must be strictly construed, and in favor of the accused; that it would not do to convict a man on general principles, no matter how bad he might be; that he was entitled to be convicted of the crime with which he was charged in the indictment and upon no other — and we are in accord with this sentiment expressed by the Supreme Court.

Now, in the judgment of the writer of this opinion, the court in the instant case was not warranted in treating “accountant” as synonymous with “agent,” and the statute cannot be extended to include a class of persons not named therein by saying a man is an “agent, to wit, an accountant,” whereas, the accountant was not one of the officers, if he be an officer, for which the charge of embezzlement might lie under the statute. One might just as well say under this statute: “John Smith, agent, to wit, night watchman of the bank.” That would not make him an agent within the meaning of this statute.

Setting all that aside, is “accountant” synonymous with “agent?” "We think not. A man might be an accountant and not be an agent. If you look at 1 Words and Phrases, Third Series, 152, and 1 Bouv. Law Dictionary, 110, and other reputable works, and find what accountant means, and what agent means, you can readily see that a man might be an accountant without being an agent. An accountant might be one who accounts; that is, an executor or administrator might make an accounting to the probate court, and he is treated as an accountant.

A certified accountant is employed to go over the books of a concern and correct any errors, and, if that accountant was employed to correct errors, and to receive money from those who owed it, as shown by the corrections made by the accountant, and money was paid to the accountant to correct these deficits or shortages by the man who had not ac-s counted for them, and the accountant kept that money, and appropriated it to his own use, he might be guilty of embezzlement, and so it seems to this court that it was the duty of the trial judge to explain more fully — for he did not explain at all— what an accountant really is, and how, under certain circumstances, he might be an agent. But the trial judge left it purely to the jury on the fact that, as he treated it, “accountant” was a synonymous term with ‘ ‘ agent. ’ ’ And that is not true as a matter of fact, because many accountants are not agents, and we think the court in his general charge, in not going into and explaining the difference, committed error, and that the error was prejudicial to the defendant, because, if he were an accountant and that was the same as an agent, then it would put him under the purview of this statute; and therefore the jury was entitled to know from the court the relation of one to the other, and the defendant was entitled to have the terms explained; and that was especially true, when, after the close of the trial and after the court had given his general charge, the attorney for the defendant below requested this explicitly in his request to the court. We think the neglect in the first instance, and the refusal in the last instance, were both errors which prevented this defendant from having his case properly submitted to the jury.

Now not only must the state prove that this man was the agent of the bank, but that he received this money as agent of the bank, and as such agent appropriated it to his own use. Aside from the fact that an accountant is not one of the persons named in the statute, there is grave doubt in the judgment of the writer of this opinion that this man, Foster, ever received any money or a check in his capacity as accountant. The record shows a situation which is very grave, and probably, had there been an indictment for a conspiracy to rob this bank, and proof of that conspiracy, provided there is such an offense as a criminal conspiracy in Ohio, it might have shown a crime upon the part of this defendant; but, as already stated, there was no such charge in the third count of this indictment, and men are entitled to be tried on the charge in the indictment.

Now the record in this case shows that Foster was an accountant for the Continental Bank, and apparently a check was drawn by the officers of the bank in violation of the law, and in violation of their orders, and was given to Foster, or was placed upon his desk, and he drew the money on this check and used it in his own business, for which, apparently, the check was issued. Now this came into his possession rightfully or wrongfully, as far as the officers of the bank are concerned, not as accountant, but as a prospective borrower from the bank. True, under the statute it could not be loaned to him without the consent of the directors, and true the evidence shows that this consent was not obtained, but how does that make him an embezzler?

If a teller in a bank borrows from the bank a sum of money, and the rules of the bank are not complied with, and the officers of the bank let him have the money in violation of the statute and in violation of the rules of the bank, one cannot say that this teller received this money in his capacity as teller. He simply became a debtor to the bank. True, the officers of the bank might be held responsible for a violation of their duty, but that would not make the teller an embezzler, because the money did not come into his possession as teller of the bank. It was given to him illegally, if you please, but it was given to him as a borrower of the bank.

Now this matter might be reached by a proper indictment; but we wonder whether it has been reached in this case. However, we think it is not necessary to decide that question in this case because there was, as already outlined, error in the charge of the court — both in its general charge and in its refusal to charge as requested — for the reason that the matter had not been properly covered in the general charge; and for these reasons this judgment is reversed, and the cause remanded to the common pleas court for a new trial.

Judgment reversed and cause remcmded.

Levine and Cline, JJ., concur.  