State v. . Eurell

17 S.E.2d 669, 220 N.C. 519, 1941 N.C. LEXIS 579

• Court: Supreme Court of North Carolina
• Decided: December 10, 1941
• Status: Published

Opinion

BajbNhill, J.

One who receives money for safekeeping is not an agent, consignee, clerk, employee or servant. He is a bailee if under tbe agreement of tbe parties be is to return tbe identical money received, and debtor if be is to use tbe money and return its equivalent on demand. Neither “bailee” nor “debtor” was included in our embezzlement statute, C. S., 4268, prior to 1941.

An interesting and comprehensive history of tbe embezzlement statute is contained in tbe opinion of Stacy, C. J., in S. v. Whitehurst, 212 N. C., 300, 193 S. E., 657. Its meaning and its applicability only to tbe classes of persons therein named is fully discussed. It is there said “tbe embezzlement statute begins by defining tbe classes of persons who may fall within its condemnation, or who may commit tbe statutory crime of embezzlement, and as it is a penal statute, creating a new offense, it cannot be extended by construction to persons not within tbe classes designated. 2 Bishop, Crim. Law., sec. 331. In other words, if tbe statute be so worded as not to include tbe defendant, bis office, or bis status, an indictment thereunder will not lie against bim.” S. v. Keith, 126 N. C., 1114; Calkins v. S., 18 Ohio S., 366; 98 Am. Decision, 121. Further discussion is unnecessary.

Tbat tbe General Assembly, by cb. 31, Public Laws 1941, added “bailee” to tbe classes of persons embraced in tbe statute constitutes a legislative declaration tbat it. was not intended tbat “agent, consignee, servant or employee” should include a bailee.

Tbe motion for judgment as of nonsuit should have been allowed.

Reversed.