business generally for Shain, as his clerk, and, among other duties, he was required to attend to the receiving and receipting for money and goods delivered to the express company for transportation, for which Shain paid him. The defendant received and receipted for the money in question, and afterwards appropriated it to his own use, and absconded. The evidence tended to show that it was his custom when he received packages of money for the company to deposit them in Shain's safe, and afterwards, when the steamboat came along, to deliver the money to the company's agent on the boat. He was indicted for grand larceny, and on appeal, claimed that the offense, if any, was embezzlement. The court, in passing upon an instruction given, said: "In the case before us, if the appellant, after he received and receipted for the money, deposited it in the safe provided by Shain, and then feloniously extracted the money from the safe and carried it off, his offense was grand larceny, for the possession of Shain was the possession of the company," and the judgment was reversed, because the instruction did not embrace this view of the case, and leave it to the jury to determine whether the appellant deposited the money in the safe, and afterwards feloniously extracted it. Goods which have reached their ultimate destination are constructively in the owner's possession, though he may not yet have taken actual possession; and therefore, under these statutes and this construction, a servant who then converts them is guilty of larceny, and not of embezzlement: Rex v. Reed, Dears. C. C. 257. And so where the clerk of an insurance com. pany received from a bank a canceled check, which his duty required him to keep for the directors, he was held to have committed, not embezzlement, but larceny, in afterwards taking it from its place of deposit, this place being deemed its ultimate destination: Regina v. Watts, 2 Den. C. C. 14; S. C., 1 Eng. L. & Eq. 558. These cases are similar in principle with Warmoth v. Commonwealth, supra. But where the goods are in transit from the third person to the master, being in the hands of a servant, another servant, through whose hands they must pass in the regular course of business before they reach the master, may be guilty of embezzlement: Regina v. Masters, 1 Den. C. C. 332; S. C., 2 Car. & K. 93; Temp. & M. 1; 3 New Sess. Cas. 326. Larceny, where Goods in Constructive Possession of Master. — Where, however, the property is received from the master or taken from his constructive possession, the crime is larceny. This was the case where the servant of a partnership fraudulently appropriated money which he had received from one member of the firm, under direction to carry it to another member; for the money was all the time until the conversion constructively in the posses. sion of the employer, and merely in the custody of the servant: Commonwealth v. Berry, 99 Mass. 428. So, also, where a person ran away with money given him by another to count: Commonwealth v. O'Malley, 97 Id. 584. And for the same reason the felonious taking of goods from the owner's shop by a clerk or packer in his employ who had keys, by means of which he entered the shop after it was closed, but who was not a salesman, although the owner had occasionally allowed him to take and sell goods, is larceny, and not embezzlement: Commonwealth v. Davis, 104 Id. 548; and see also State v. Coombs, 55 Me. 477; State v. Healey, 48 Mo. 531; Fulton v. State, 13 Ark. 168.

Proceeds of Property may be Embezzled. —If a servant who has the mere custody of the property, and is employed to sell goods or change a bank note steal the goods or the note, the offense is larceny, since his possession is that of his master: Rex v. Freeman, 5 Car. & P. 534; see Rex v. White, 4 Id. 46; 1 Wharton's Crim. Law, 956 et seq. But if he procures the change for the note, or sells the goods, or obtains bank bills for a check drawn by his master, AM. DEC. VOL. XCVIII-9

and absconds with the proceeds, he is then guilty of embezzlement, for the master was never in possession of the property stolen: Rex v. Sullens, 1 Moody C. C. 129; Rex v. Winnall, 5 Cox C. C. 326; Commonwealth v. King, 9 Cush. 284; see Rex v. Hartley, Russ. & R. C. C. 139; Rex v. Keena, 11 Cox C. C. 123; S. C., L. R. 1 C. C. 113; Rex v. Gale, 13 Cox C. C. 340; State v. Foster, 37 Iowa, 404; Johnson v. Commonwealth, 5 Bush, 430. It is also held, however, that a person employed specially to get a check cashed, "for which he was to receive sixpence," is not a servant under the statute: Rex v. Freeman, 5 Car. & P. 534; and see Rex v. Mayle, 11 Cox C. C. 150; People v. Dalton, 15 Wend. 581. See infra, "Authority to do Act."

Reason of Doctrine of These Cases is that the embezzlement statutes were passed to remedy the defects existing in the law of larceny; and where an offense was already indictable as larceny, there was no reason, so it is held, why it should also be prosecuted as embezzlement; and therefore regarding the possession of a servant for or on account of the master, which is the possession defined by the embezzlement statute of England and of many of the United States, as a possession derived from a third person, and not from the master, the technical distinction between common-law larceny and statutory embezzlement was maintained: See 1 Wharton's Crim. Law, secs. 1009, 1027, 1028, 1050. And furthermore, the difficulty following from this interpretation is in England, Regina v. Cooper, L. R. 2 C. C. 123, and in some of the United States, remedied by other statutes, or by judicial construction which permits the joinder of the two offenses in one indictment, or the conviction of one under indictment for the other: See State v. Healy, 48 Mo. 531; Barclay v. Breckinridge, 4 Met. (Ky.) 374; State v. Fann, 65 N. C. 317; and see infra, "Indictment."

STATUTES UNDER WHICH Servant may bE GUILTY OF EMBEZZLEMENT OF PROPERTY IN HIS CUSTODY MERELY. -It is undoubtedly in the power of the legislature to define the crime of embezzlement, and to make it include offenses which were at common law larceny; and in some states this has been done by statutes, which provide that a clerk, agent, servant, etc., may be guilty of embezzlement of property of another person which shall have come into his possession, or "under his care," by virtue of his employment. The phrase "under his care" will cover property merely in his custody, and therefore, under such a statute, it is immaterial whether he receives possession of the property from a third person or from his master; for in either case the property is under his care, and if he converts it he is guilty of embezzlement: People v. Dalton, 15 Wend. 581, 583; People v. Hennessey, 15 Id. 147, 151; Ker v. People, 110 Ill. 630; Territory v. Maxwell, 2 New Mex. 250; the principal case; Calkins v. State, 18 Ohio St. 366; Gibbs v. State, 41 Tex. 491; State v. Wingo, 89 Ind. 207. And if the statute makes the felonious conversion by a servant of the master's property in the master's constructive possession embezzlement, it must be indicted as such: State v. Wingo, supra. It is difficult to avoid the conclusion that provisions such as these tend to simplify criminal law; for nearly all, if not all, of the felonious conversions by a servant of his master's property thus become indictable as embezzlement; and the very puzzling question as to what is and what is not constructive possession of the master is thereby removed from the field of inquiry, which is, as a general rule, sufficiently extensive. And the tendency of modern enactments certainly seems to be to assimilate embezzlement and larceny as much as possible: See Leonard v. State, 7 Tex. App. 443, and cases there cited. And in New York, now, all common-law distinctions are done away with by section 528 of the Penal Code, which makes larceny, embezzle

ment, and obtaining goods by false pretense a single offense, with a common definition under the name of larceny. And in other states embezzlement is made larceny: State v. Butler, 26 Minn. 90; State v. New, 22 Id. 76; in which case an indictment for such an embezzlement properly accuses the person indicted of the crime of larceny: State v. Butler, State v. New, supra.

In Alabama it is held that a clerk who converts a bill of exchange, which comes first into his employer's possession, and thence into his by virtue of his employment, is guilty of embezzlement. In this state the statute speaks of property "which has come into his possession by virtue of his employ. ment"; and the court justifies its departure from the English and similar authorities by the difference in meaning between the phrases qualifying the possession of the servant; that is, between the phrase "for or in the name or on account of his master or employer," and the phrase "by virtue of his employment": Lowenthal v. State, 32 Ala. 589, 594, 595. The distinction may not be very apparent: See 2 Bishop's Crim. Law, sec. 367, note 1; but the decision may perhaps be regarded as a step in the right direction.

The question is, as we have said before, primarily a question of statute, and the practitioner who finds this question unsettled in his state should first look to his statute, and from this to the decisions; but if he finds that his statute contains the words "under his care," we think he may conclude that a servant who steals goods from his master's possession in his state is guilty of embezzlement, and is properly so indicted. On the other hand, let the pleader, in states where the offenses are distinct, and the facts present a doubt as to which has been committed, count for both larceny and embezzlement: See infra, "Indictment."

DEFINITION. -It is impossible to define embezzlement; for that is done by statute, to which reference must always be made to ascertain the elements of the offense in a particular state. But as the gist of the offense is the breach of trust reposed in the agent, employee, or bailee, by his principal, employer, or bailor, the crime may be in general terms defined to be the frauduient conversion of another's personal property by one to whom it has been intrusted: Leonard v. State, 7 Tex. App. 418; State v. Johnson, 21 Tex. 775; Brady v. State, 1 S. W. Rep. 462 (Tex.); Commonwealth v. Hays, 14 Gray, 62; S. C., 74 Am. Dec. 662; and it differs from larceny in the essential characteristic that the property converted is at the time in the possession of the criminal: State v. Baldwin, 30 N. W. Rep. 476 (Iowa); Chaplin v. Lee, 25 Id. 609 (Neb.); People v. Burr, 41 How. Pr. 294. The breach of trust is also essential, and where there is no breach of trust or violation of confidence intention. ally reposed by one party and voluntarily assumed by the other, there can be no crime, unless, of course, the statute should in express words cover the case. Therefore the conversion of money by a bank depositor, to whom upon drawing his deposit a greater sum was paid by mistake than the amount of his deposit, is not embezzlement: Commonwealth v. Hays, 14 Gray, 62; S. C., 74 Am. Dec. 662; see also State v. Heath, 8 Mo. App. 106; and where the facts do not show whether the act committed amounts to a mere breach of trust or a felony, the former will be presumed: Barclay v. Breckinridge, 4 Met. (Ky.) 374. The act of 39 Geo. III. is not part of the common law of New Mexico: Territory v. Maxwell, 2 New Mex. 250. The earliest English statute, 21 Hen. VIII., may be regarded as part of the common law of this country; but this is a matter of no consequence, since every state has its own statute, and the common law became more extensive in its operation than that statute, which was but little more than a declaration of the common law of larceny: See 2 Bishop's Crim. Law, sec. 319.

FRAUDULENT CONVERSION. — Intent. — In the case of embezzlement, as in other crimes, a criminal intent is necessary. The defendant must have acted with felonious intent, and made an intentionally wrong disposal of the property, indicating a design to cheat and deceive the owner: People v. Hurst, 28 N. W. Rep. 838 (Mich.); People v. Galland, 55 Mich. 628; State v. Lyon, 45 N. J. L. 272; Beaty v. State, 82 Ind. 228; People v. Treadwell, 69 Cal. 226; People v. Gray, 66 Id. 271; State v. Reilly, 4 Mo. App. 392; United States ▼. Sander, 6 McLean, 598. Therefore, in the absence of proof of animus furandi, the act of a servant in giving away old tools of his master will be presumed a matter of charity, and not embezzlement: State v. Fritchler, 54 Mo. 425. And so in a case where there was nothing indicating concealment or felonious disposition on the part of the defendant (an attorney at law), but where he made a candid admission immediately upon inquiry, and thereafter made partial payment, and gave security at different times when asked, there was no offense of embezzlement established: People v. Hurst, 28 N. W. Rep. 838 (Mich.); but see State v. Belden, 35 La. Ann. 823.

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Fraud is to be Inferred from Facts. Where the defendant, in rendering his account, does not deny the appropriation of the property, but admits it, claiming bona fide a right in himself, however unfounded, he is not guilty of embezzlement: Rex v. Norman, Car. & M. 501; Rex v. Creed, 1 Car. & K. 63; see Rex v. Lister, Dears. & B. 118. An employee of a mercantile house is not guilty of embezzlement, where, having charge of the money of the concern, and being about to leave their employment, he takes money of the firm in his hands equal to the amount due him as the balance of his salary, without the knowledge and against the wish of his employers, and charges the same to himself on their books: Ross & Co. v. Innis, 35 Ill. 487; S. C., 85 Am. Dec. 373. So a tenant in common with an intestate, removing the property, but without denying the right of the estate or refusing to account, is not within the liabilities of the Vermont Compiled Statutes, chapter 50, section 11, as there must be an intention of wrongfully abstracting, to the injury of the assets: Batchelder v. Tenney, 27 Vt. 578.

But a claim against his principal, which the agent knows to be unfounded, raises no presumption that the withholding of the money was to save himself from loss, and not with felonious intent: State v. Reilly, 4 Mo. App. 392. And so where one employed by the maker of a note, not as a broker, but merely to sell it and receive the proceeds, and pay them over specifically to a third person, fraudulently converts them to his own use, he is guilty of embezzlement, although, upon receiving the note, he gave the maker his own note for the same amount, if it was agreed that his note should be deposited with the third person beneficially interested as a receipt, to be surrendered when the proceeds are paid over: Commonwealth v. Foster, 107 Mass, 222.

The fraudulent conversion is to be inferred from the facts: Rex v. Murdock, 2 Den. C. C. 298; Rex v. Williams, 7 Car. & P. 388; Rex v. Wortley, 7 Id. 334; Rex v. Betts, 8 Cox C. C. 140; Kibs v. People, 81 Ill. 599; Commonwealth v. Shepard, 1 Allen, 595; Commonwealth v. Tuckerman, 10 Gray, 173; Commonwealth v. Berry, 99 Mass. 428; Commonwealth v. Gately, 126 Id. 25; Bartow v. People, 78 N. Y. 377; Calkins v. State, 18 Ohio St. 366; People v. Hennessey, 15 Wend. 147; People v. Dalion, 15 Id. 582; Leonard v. State, 7 Tex. App. 447, 448; State v. Leonard, 6 Cold. 307.

A fraudulent intent may be shown by the rendering of an account in which sums received on the account of the master are not stated, though if he ren. dered true accounts the servant could not be held for embezzlement, but for larceny only: Rex v. Creed, 1 Car. & K. 63; Rex v. Jackson, 1 Id. 384; Rex v.

Wortley, Temp. & M. 636; 8. C., 2 Den. C. C. 339; 5 Cox C. C. 382; Rex v. Winnall, 5 Id. 326; Commonwealth v. Tuckerman, 10 Gray, 173; Commonwealth v. Berry, 99 Mass. 428; State v. Cameron, 3 Heisk. 78; so if he neglects or refuses to account for money received: State v. Leonard, 6 Cold. 307; or willfully makes false entries: Rex v. Hall, Russ. & R. C. C. 463; and see Regina v. Welch, 1 Den. C. C. 199; Rex v. Hoggins, Russ. & R. C. C. 145; Rex v. Tyers, Id. 402; or denies the reception of the money or property, or suppresses the fact of its reception: Regina v. Jackson, 1 Car. & K. 384; Rex v. Jones, 7 Car. & P. 833; Rex v. Taylor, 2 Leach, 4th ed., 974; S. C., Russ. & R. C. C. 63; 3 Bos. & P. 596; Rex v. Hobson, Russ. & R. C. C. 56; Regina v. Murdock, 2 Den. C. C. 298; S. C., 8 Eng. L. & Eq. 577; Rex v. Borrett, 6 Car. & P. 124; Regina v. Aston, 2 Car. & K. 413; Regina v. White, 8 Car. & P. 742; Regina v. Wortley, 2 Den. C. C. 333; Rex v. White, 8 Car. & P. 742; Regina v. Welch, 1 Den. C. C. 199; Regina v. Betts, Bell's C. C. 90; S. C., 8 Cox C. C. 140; United States v. Forsythe, 6 McLean, 584; Batchelder v. Tenney, 27 Vt. 578; see Stephen's Dig. Crim. Law, art. 312. Thus a bookkeeper who appropriates specific sums of money to take the place of money which he has already appropriated to his own use, and in making out his monthly reports, reports such sums as unpaid, is guilty of embezzlement; Bowman v. Brown, 52 Iowa, 437. But the mere omission to enter the sum received is not alone sufficient; there must be proof that it is an intentional omission, done with a criminal purpose of fraudulent appropriation: Rex v. Jones, 7 Car. & P. 833; and see Rex v. Tyers, Russ. & R. C. C. 402; Regina v. Chapman, 1 Car. & K. 119. And all these things, it should be remembered, are merely evidential, and not essential to the constitution of the offense.

Other facts showing the willfulness and intention of the suspicious act should appear, and flight, insolvency, concealment, or evasion form strong circumstantial proofs of guilt: Leonard v. State, 7 Tex. App. 447, 448; State v. Leonard, 6 Cold. 307; Ex parte Hedley, 31 Cal. 108; Hoyt v. State, 50 Ga. 313; State v. Mimms, 26 Minn. 183; United States v. Taintor, 11 Blatchf. 374; Rex v. Williams, 7 Car. & P. 388; Rex v. Jackson, 1 Car. & K. 384; Rez v. Jones, 8 Car. & P. 288. And false entries are of the same nature: Rex v. Hall, Russ. & R. C. C. 463; Rex v. Welch, 1 Den. C. C. 199. But flight, insolvency, etc., are not indispensable to the existence of the crime: People v. Dalton, 15 Wend. 582; nor is absconding alone proof of the crime: Regina v. Creed, 1 Car. & K. 63; though under the facts of one case it was held sufficient to warrant the jury in finding the defendant guilty: Rex v. Williams, 7 Car. & P. 338.

It is, however, essential that the owner should be deprived of the property alleged to be embezzled by an adverse use or holding: Chaplin v. Lee, 25 N. W. Rep. 609 (Neb.). The conversion should be shown: Johnson v. Commonwealth, 5 Bush, 430. Thus embezzlement may exist where the servant pledges the property for his own debts: Commonwealth v. Butterick, 100 Mass. 1; S. C., 97 Am. Dec. 65. And in this case it was held that it was immateria' that the accused afterwards paid part of the proceeds to the owner at his request; and it was also immaterial that the relations between the owner and the defendant were such that the latter had a right to presume that the owner would ratify such a use of his property, or that he would have consented to such a use of it if he had been asked at the time, or that at the time he deposited it with defendant he had no objection to such a use of it by him; and questions asked of the owner as a witness, to prove these facts, were properly excluded. So, where the servant absconds with the property: