Opinion of the Court.

in Ex parte Hedley, 31 California, 108, where the agent of an express company, authorized to draw telegraphic cheques on his principal for money to be used in the principal's business, but not to draw individual cheques, drew certain cheques as agent for money to be used in his private business, and the principal paid the money to the drawee, it was held to amount to a receipt of the money of the principal by the agent "in the course of his employment." It was further held that, in order to convict one of embezzling money of his principal, it was necessary to establish four propositions: First, that the accused was an agent; second, that he received money belonging to his principal; third, that he received it in the course of his employment; fourth, that he converted it to his own use with intent to steal the same. In People v. Tomlinson, 102 California, 19, a recent case upon the same subject, the law of California was summed up as follows: "Where one honestly receives the possession of goods upon a trust, and after receiving them fraudulently converts them to his own use, it is a case of embezzlement. But, where the possession has been obtained through a trick or device, with the intent, at the time the party receives it, to convert the same to his own use, and the owner of the property parts merely with the possession and not with the title, the offence is larceny."

These cases are strictly in line with that of Moore v. United States, 160 U. S. 268, in which we held that "embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. It differs from larceny in the fact that the original taking of the property was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking."

The cases relied upon by the petitioner are of the latter description. Thus in People v. Abbott, 53 California, 284, defendant was instructed by a bank to purchase silver for its account; and, to provide him with funds, the bank certified and delivered him a cheque drawn by him on the bank. He did not purchase the silver, but used the cheque for his own purposes. It was held that, if he took the custody of the certified cheque with

Syllabus.

the intention of stealing it, he was guilty of larceny. The question was treated as one for the jury. In People v. Raschke, 73 California, 378, it was held that if one, through false representations, obtains the possession of personal property with the consent of the owner, but without a change of the general title, he is guilty of larceny, upon subsequently converting the same to his own use, if he had the felonious intent to steal the property at the time the possession was obtained. The authority of these cases is not questioned. In the case under consideration, a cheque was delivered to the petitioner with instructions to draw the money from the bank, take it to the railway station, to be forwarded to another city. The facts show that he obtained possession of both the cheque and the money, honestly, and with the consent of his principal, and subsequently converted it to his own use. Prima facie, at least, this makes a case of embezzlement, and if there were in fact an original intent to steal, that is a question for a jury in a Russian court to pass upon. It is sufficient for the purposes of this proceeding that a prima facie case of embezzlement is made out.

This disposes of all the questions made in the brief, and the judgment of the Circuit Court is

Affirmed.

KNIGHTS TEMPLARS' AND MASONS' LIFE INDEMNITY COMPANY v. JARMAN.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH

CIRCUIT.

No. 48. Argued October 17, 1902.-Decided December 8, 1902.

1. That section of the Revised Statutes of Missouri declaring that in all suits upon policies of life insurance it shall be no defence that the insured committed suicide, applies not only to cases where the insured takes his own life voluntarily and in full possession of his mental faculties, but to all cases of self-destruction by the insured, whether sane or insane, unless he contemplated suicide at the time he made his application for the policy.

Statement of the Case.

The fact that this court has held that a clause avoiding a policy in case the insured should die by his own hand applied only where the insured intentionally took his own life while sane, does not estop the court from giving a different construction to a statute embodying an important question of public policy.

2. While under the decisions of the Supreme Court of Missouri it must be held that the above statute was repealed by the act of 1887, authorizing the incorporation of insurance companies on the assessment plan, as to policies thereafter issued, this statute of 1887 was prospective in its operation, and with respect to policies issued anterior to the date of that act, the rights of the parties are to be determined by the suicide statute. It was further held that a law passed in 1897, specially applying the suicide statute to insurance companies doing business upon the assessment plan, was constitutional, and applied to this policy, inasmuch as the insured did not die until 1898.

3. The promise of the company to pay the plaintiff the sum of $5000 and all the money paid on the policy in assessments, was not impaired by subsequent amendments to the constitution, inasmuch as these amendments operated only upon policies thereafter issued.

THIS was a writ of certiorari to review a judgment of the Circuit Court of Appeals affirming a judgment of the Circuit Court for the Western District of Missouri, overruling the defence of suicide to an action upon a policy of life insurance, and awarding plaintiff judgment for the amount of the policy and assessments thereon.

An agreed statement of facts shows defendant to be an Illinois corporation, organized "for the purpose of furnishing life indemnity or pecuniary benefits to widows," etc.; and that on October 19, 1885, it issued to John P. Jarman, plaintiff's husband, and a citizen of Missouri, a policy of insurance or certificate of membership, subject to the constitution and by-laws of the company and certain conditions in the policy, one of which provided for its avoidance in case of self-destruction, "whether voluntary or involuntary, sane or insane." The seventh stipulation was that "John P. Jarman, while insane to such an extent as to be incapable of understanding the nature or consequences of his act, took his own life, and came to his death on the 12th day of September, 1898, by a gunshot wound, inflicted by himself. It is not contended, however, by plaintiff that such self-destruction was the result of accident." The further material facts are set forth in the opinion.

Opinion of the Court.

Defendant having refused to pay the amount of the policy on account of the suicide of the insured, Rosa B. Jarman, his widow and beneficiary, brought an action January 19, 1899, in the Circuit Court of Grundy County to recover the amount of the policy, $5000, and assessments, which action was subsequently removed to the Circuit Court of the United States for the Western District of Missouri, upon the ground of diversity of citizenship. The case was submitted to the court without the intervention of a jury, and resulted in a judgment in favor of the plaintiff in the sum of $6006.30, which was affirmed by the Circuit Court of Appeals. Whereupon petitioner sued out a writ of certiorari from this court.

Mr. Hervey Bryan Hicks and Mr. S. S. Gregory for petitioner.

Mr. Frederick H. Bacon for respondent. Mr. E. M. Harber and Mr. A. G. Knight were with him on the brief.

MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.

This case turns principally upon the applicability to the policy in question of sec. 5982 of the Revised Statutes of Missouri of 1879, afterwards sec. 5855, Rev. Stat. 1889, (hereinafter termed the suicide statute,) which was in force in 1885, when this policy was written. The section is as follows:

"In all suits upon policies of insurance on life hereafter issued by any company doing business in this State, it shall be no defence that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.”

1. The first defence in order of time is that Jarman did not commit suicide within the meaning of this act, since the stipulated fact was that he shot himself while insane to such an extent as to be incapable of understanding the nature or conse

quences of his act.

Opinion of the Court.

The position of the company in this connection is that the enactment above quoted, that "it shall be no defence that the insured committed suicide," relates only to cases where the insured takes his own life voluntarily, while sane, and in full possession of his mental faculties; and hence, the provision of the policy, that "in case of the self-destruction of the holder of this policy, whether voluntary or involuntary, sane or insane, this policy shall become null and void,” applies, and exonerates the company from all liability beyond that provided in the policy, "that in the case of the suicide of the holder of this policy, then this company will pay to his widow and heirs or devisees such an amount of his policy as the member shall have paid to this company on the policy in assessments on the same without interest."

This contention is founded upon the ruling of this court in Life Insurance Co. v. Terry, 15 Wall. 580, and cognate cases, to the effect that a similar provision avoiding a policy in case the insured should "die by his own hand" applied only where the insured intentionally takes his own life, while in possession of his ordinary reasoning faculties, and does not apply when he is unable to understand the moral character, the general nature, consequences and effects of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist.

But we are of opinion that the word "suicide" is not used in this statute in its technical and legal sense of self-destruction by a sane person, but according to its popular meaning of death by one's own hand, irrespective of the mental condition of the person committing the act. The result of the construction urged by the defendant would be that, if a perfectly sane man voluntarily and from anger, pride or jealousy, or a mere desire to escape from the ills of life, puts an end to his life, and thereby becomes guilty of the crime of self-murder, and of a fraud upon the insurance company, the company would still be responsible, unless it could be shown that the insured contemplated suicide at the time he made his application for the policy; while, if he committed the same act while insane, and therefore irresponsible, the statute would not apply, and the company would not