The State v. Tumey.

court.

ment of the question of law reserved for the decision of this No objection is made here, however, to the sufficiency of the bill of exceptions on this ground; and as we think we can gather from the contents of the bill the point of law intended to be reserved, we will pronounce our opinion upon the correctness of the decision of the court below upon that point of law. It may be premised that the question propounded to the witness Jones, and above quoted, was objectionable in form, if not in substance, in this, that it is apparently assumed therein that the Ohio Mutual Aid and Life Association, of Bellefontaine, Ohio, was a foreign insurance company. If the association were such a company, it was a fact which ought not to have been assumed, but it ought to have been shown by competent evidence. It may possibly have been inferred, from its name and location, that the association was a foreign life insurance company, but such inferences are not always reliable. Waiving this point, however, and assuming, as it seems to have been assumed below, that the association was a foreign insurance company, the question for decision is this: Did the trial court err in overruling the State's objections to the question quoted?

It seems to us, that the first objection of the State to the question propounded was well taken, and ought to have been sustained. The question seems to assume that it was the legal duty of the association to have filed in the office of the clerk of Huntington county a certificate from the auditor of this State, showing that it was authorized to do business in that county. The State's first objection to the question was, in effect, that the law did not require the association to file such a certificate in such clerk's office. The only law of this State, on the subject of the filing of such a certificate in the clerk's office, is the act of March 3d, 1877, to amend section 1 of the act of December 21st, 1865, regulating foreign insurance companies doing business in this State, etc., and adding supplemental sections thereto. There is no provision in this act which requires a foreign insurance company to file

The State v. Tumey.

in the county clerk's office a certificate from the auditor of State, showing that it is authorized to do business in the county; but the act does require, in clear and positive terms, that the person who assumes to act as the agent of such a company in the transaction of insurance business, in any county, shall procure and file in the office of the clerk of the circuit court of the county, a certificate from such auditor, showing that he, as such agent, is authorized to transact the business of insurance for such company, in such county. Clearly, therefore, as it seems to us, the court below erred in overruling the State's first objection to the question above quoted.

The question propounded to the witness, Jones, was evidently asked by the appellee, and allowed by the court, upon the theory that, if no such certificate from the auditor of State had been filed in the office of the clerk of the Huntington Circuit Court, either by the association or by the appellee, as its agent, then the money received by the appellee, as the agent of such association in Huntington county, was received upon an illegal consideration, and in the transaction of an unlawful business. The conclusion drawn from this theory was, that even if the appellee, as the agent of the association in Huntington county, had received moneys belonging to the association, it was received by him upon such illegal consideration, and in the transaction of such unlawful business; and that, therefore, the appellee could not be and was not guilty of the crime of embezzlement, in secreting, purloining or appropriating to his own use the said moneys so received by him, as such agent of such association. The theory of the question was, perhaps, right under the law; but the conclusion drawn from this theory was, we think, radically erroneous.

In civil actions, it seems to be settled law, in this State, that where money due to the principal, on an illegal transaction, has been paid to his agent for such principal, by the party from whom it is due, the principal may recover such money from such agent. "For," says Judge Story, in his treatise on Agency, sec. 347, "the contract of the agent to pay the

The State v. Tumey.

money to his principal is not immediately connected with the illegal transaction; but it grows out of the receipt of the money for the use of his principal." So, in Dunlap's Paley's Agency, 62, it is said: "If money have been actually paid to an agent for the use of his principal, the legality of the transaction, of which it is the fruit, does not affect the right of the principal to recover it out of the agent's hands." This doctrine has been repeatedly recognized by this court, and, accordingly, it has been held that, in such cases as the one at bar, the principal may recover of the agent the moneys received by the latter, for the use of the former, in the course of the agency. Thus, in The United States Express Co. v. Lucas, 36 Ind. 361, this court said: "The obligation of the agent to account for the money is separate and distinct from the contracts of the company with third persons, which were the subject-matters of the statute. To hold that the agent is not bound to account for the money received by him, is to sanction an act of the grossest dishonesty and bad faith on the part of the agent, without the accomplishment of any equivalent benefit to any one, or to the public. On account of some unintentional omission in an honest effort to comply with the law, for which the agent is probably as much in fault as the principal, the agent sets his principal at defiance, denies his right to the money, and not refunding it to the parties who paid it to him, is allowed to retain it himself."

Applying this doctrine to the question reserved in the case now before us, it is clear that, as between the Ohio Mutual Aid and Life Association and the appellee, as its agent, the money received by the latter, in the course of his agency, for the former, is the absolute property of such association. If the appellee, as charged in the indictment, unlawfully and feloniously took, purloined, secreted and appropriated to his own use the money so received by him, as such agent, in the course of his agency, belonging to his principal, he was guilty of the offence of embezzlement, as the same is defined in section 43 of the act of April 14th, 1881, concerning public of

Gilbert v. The State.

fences, being section 1944, R. S. 1881. In such a case, it seems to us that the fact, if it were the fact, that the appellee received such money, as such agent, for his principal, the association, upon an illegal consideration, and in the transaction of an unlawful business, did not constitute any valid or sufficient defence to him, the appellee, in this prosecution against him for his alleged embezzlement of such money.

We are of the opinion, therefore, that the court erred in overruling the second objection of the State to the question above quoted.

The appeal of the State, in this case, is sustained, at the appellee's costs.

No. 10,255.

GILBERT v. THE STATE.

CRIMINAL LAW.--Sabbath Desecration.-Indictment.--In a prosecution for desecration of the Sabbath, under section 95, Acts 1881, p. 194, R. S. 1881, section 2000, the indictment alleged that the defendant, on the 4th day of December, 1881, unlawfully engaged in common labor, and his usual vocation, by selling cigars.

Held, that the indictment was insufficient for failing to allege that the sale was on some day known and commonly called Sunday.

Held, also, that proof must be made of the sale on some particular Sunday within a time not barred by the statute of limitation of six months, section 1594, R. S. 1881.

From the Montgomery Circuit Court.

D. A. Roach and N. P. H. Proctor, for appellant.

D. P. Baldwin, Attorney General, W. W. Thornton and J. H. Burford, Prosecuting Attorney, for the State.

NIBLACK, J.-This was a prosecution upon an indictment for what was claimed to be a violation of the statute for the protection of the Sabbath. Acts 1881, p. 194, sec. 95.

Gilbert v. The State.

The indictment charged the appellant, Demas Gilbert, a person over the age of fourteen years, with having, on the 4th day of December, 1881, at the county of Montgomery and State of Indiana, unlawfully engaged in common labor, and his usual vocation, by then and there selling and delivering to one Wallace A. Stilwell two cigars, at and for the price of ten cents, such sale and delivery not being a work either of charity or necessity.

The appellant moved to quash the indictment upon the ground that it did not also charge that the alleged offence was committed on the first day of the week, commonly called Sunday, but his motion was denied. A trial and conviction of the appellant followed.

The appellant maintains that the indictment was neither in the words of the statute nor in equivalent words, in its description of the offence intended to be charged, and that, consequently, the motion to quash it ought to have been sustained.

On behalf of the State, it is contended that the 4th day of December, 1881, fell on Sunday, and that we must take judicial knowledge of the fact that that day was Sunday; that for that reason it was sufficiently charged that the sale of the cigars was on Sunday.

Under the indictment, the State was at liberty to prove the sale of cigars on any day within six months preceding the time of the return of the indictment into court, as the precise time of the sale was immaterial, provided it was not fixed at so remote a period as to make it barred by the statute of limitations; but the gravamen of the offence evidently intended to be charged was the unlawful engagement by the appellant on Sunday, in his usual vocation of selling cigars. To make out that offence, it was necessary to confine the proof to some particular Sunday within a time not barred by the statute. Pancake v. The State, ante, p. 93.

In order that the proof might have been so limited at the trial, it was necessary that the indictment should have charged that the sale was on some day known as and commonly called