Commonwealth v. Berry, 99 Mass. 428; or otherwise wrongfully converts it, he may be guilty of embezzlement: Calkins v. State, 18 Ohio St. 366; Johnson v. Commonwealth, 5 Bush, 430.

Again, the mere failure of the accused to pay over the money which he is charged with having embezzled does not of itself raise a presumption of a felonious appropriation sufficient to convict: State v. O'Kean, 35 La. Ann. 901; Kribs v. People, 82 Ill. 425; State v. Tompkins, 32 La. Ann. 620. And see "Public Officers," infra. Nor, on the other hand, is it necessary that there should be a demand made for the money or property in order to constitute the offense: State v. Hunnicut, 34 Ark. 562; Commonwealth v. Tuckerman, 10 Gray, 173; Alderman v. State, 57 Ga. 367; State v. Tompkins, 32 La. Ann. 620; Leonard v. State, 7 Tex. App. 419; State v. Porter, 26 Mo. 201; unless the demand is by the statute an essential element of the offense, as where the statute declares it to be embezzlement "if any agent shall neglect or refuse to deliver to his employers on demand any money," etc. In such a case it would be necessary to allege and prove a demand, which, however, need be made in no particular form of words; all that is required being that the language should plainly indicate to the person that he is called upon to perform the neglected duty: State v. Bancroft, 22 Kan. 170; see State v. Munch, 22 Minn. 67; State v. New, 22 Id. 76.

In fine, proof of a fraudulent conversion in any way is enough; and there is no prescribed set of circumstances by which the fraud is to be made out: People v. Dalton, 15 Wend. 582; State v. Tompkins, 32 La. Ann. 620.

Authority to Commit Act of Alleged Conversion. Where the question is whether the servant is guilty of larceny or embezzlement, we have seen that he cannot, under the English and similar statutes, be guilty of embezzling articles which he receives from the hands of the master with authority to sell, exchange, and the like. But where the possession, the fiduciary relation, or the statute is such that the defendant might be guilty of embezzlement, he cannot be convicted upon mere proof that he did with the property what he was authorized to do, without a criminal intent. Thus, it is a good defense that the accused was authorized by the owner to use the money; and the jury should be so instructed: Henderson v. State, 1 Tex. App. 432. So where, under the terms of his contract, an agent is bound to pay ten per cent interest on moneys collected by him, and not paid over to the principal, he has practically permission to retain the money on the condition, and cannot be convicted of embezzlement for a failure to pay over the money: Miller v. State, 16 Neb. 179. The authority to do the act constituting the conversion is, however, under the later authorities, no defense to the crime, provided the act was done with criminal intent: Leonard v. State, 7 Tex. App. 444, 445; United States v. Sander, 6 McLean, 598. The question becomes merely one of intent. The act of conversion, taken by itself, may have been lawful and authorized; but if done with criminal intent, it becomes unlawful and unauthorized: 2 Bishop's Crim. Law, sec. 371. Thus a sale by a bailee authorized to sell will constitute a conversion of the property, if the sale was made with a criminal intent: Leonard v. State, 7 Tex. App. 443–445; though if the criminal intent was not conceived until after the sale, the em bezzlement would then be not of the property, but of the proceeds of the sale: Id. If money of a railroad corporation is received by their treasurer, who deposits it as treasurer, and then draws it out, the money drawn out is the property of the corporation, and subject to embezzlement by him. And if, when he draws the money, he does not mean to embezzle it, he may do so afterward when his criminal purpose is conceived; even though at the time

of the fraudulent conversion he intends to restore the amount, and has property sufficient to secure its restoration: Commonwealth v. Tuckerman, 10 Gray, 173. An agent, authorized to receive payment for goods sold by him for his employer, who receives a check payable to his own order, is guilty of embezzlement in fraudulently converting the check or its proceeds to his own use; and this although he is in the habit of depositing such checks to his own credit, and sending his own checks in lieu thereof to his employer: Commonwealth v. Smith, 129 Mass. 104. An allegation that a person fraudulently embezzled and converted to his own use wheat, the property of a certain corporation then under his care, by virtue of his employment as clerk thereof, was held to be established by proof that the wheat could not leave the warehouse except upon a "shipping order" issued by him to the foreman, and that he clandestinely set afloat in the market fictitious "grain orders," and thereupon issued "shipping orders," and appropriated the proceeds to his own use: Calkins v. State, 18 Ohio St. 366; see Hutchison v. Coinmonwealth, 82 Pa. St. 472. And so where a person employed by the maker of a promissory note to sell it, receive the proceeds, and pay them over specifically to a third person, fraudulently converts them to his own use, he is guilty of embezzlement. And the fact that, upon receiving the note, he gave to the maker his own note for the same amount will make no difference, if it was agreed that his note should be deposited with the third person as a receipt to be given up to him upon his paying over the proceeds: Commonwealth v. Foster, 107 Mass. 221.

PROPERTY. Embezzlement, being a statutory crime, can be committed only with respect to such property as is included within the terms of the statute, which are, however, usually very broad. Where a statute declares that whatever is the subject of larceny shall also be the subject of embezzlement, the expression will embrace both property subject to larceny at common law and property specially subject to larceny by statute: 2 Bishop's Crim. Law, sec. 356; State v. Stoller, 38 Iowa, 321; as to what is the subject of larceny, see the note to State v. Homes, 57 Am. Dec. 276, 277.

The term "property," when used in the statute, includes any and every article commonly known and designated as personal property: Brown v. State, 4 S. W. Rep. 588 (Tex.). It will therefore include money: Id. "Money or property" will include promissory notes and bills of exchange by virtue of their being evidences of debt: State v. Orwig, 24 Iowa, 102. And shares of stock are property: People v. Williams, 60 Cal. 1. In Commonwealth v. Concannon, 5 Allen, 502, it is held that if the execution of a deed of mortgage has been procured by mere fraud, the person who executed it may lawfully take it into his possession wherever he can find it; but if it was executed for a valuable consideration, even though the full sum named therein was not actually due, it is the property of the mortgagee; and if the mortgagor afterwards obtains possession of it from a person with whom it has been deposited, for the purpose of conveying the same to the mortgagee, and instead of so conveying it, fraudulently and feloniously converts the same to his own use, knowing that he has no right to retain it, he may be convicted of embezzlement. And so, under a statute broad enough in its terms to include all classes of personal property, a person may be convicted of embezzling gelding, though the animal is not specially mentioned in the statute: State v. Small, 26 Kan. 209.

Property may be the subject of larceny, though there be a taint of illegal. ity upon it. This illegality is no defense. So liquors kept for sale in viola tion of law may be the subjects of larceny, and the proceeds of their illegal

sale the subject of embezzlement: Commonwealth v. Smith, 129 Mass. 104; see also Commonwealth v. Cooper, 130 Id. 285; Leonard v. State, 9 Tex. App. 417; see also, upon this subject, 2 Bishop's Crim. Law, sec. 356.

OWNERSHIP. Under the former English statute, the property embezzled must have belonged to the servant's master; and therefore where the prosecutor specially employed another person's servant for a single job, the indictment would not lie: Rex v. Freeman, 5 Car. & P. 534. So under the Texas statute the conversion must be of money or other property of the principal or employer, and it must have come into the possession of the agent or defendant by virtue of such agency or employment. And therefore where an employee, who had no authority to collect bills, made out a bill and collected it, and never accounted for it to his employer, he was not guilty of embezzlement, since the money did not come into his possession by virtue of his employment, and did not belong to his employer; for the payment being unauthorized, the debt to the employer still existed: Brady v. State, 1 S. W. Rep. 462 (Tex.).

This has been recognized as a defect in England and in many of the United States, and the present English statute and many of the American statutes have sought to obviate the difficulty. The English statute 24 & 25 Vict., c. 96, sec. 68, speaks of "any chattel, money," etc., which is received by the employee "for or in the name or on the account of his master or employer," and omits the words "by virtue of his employment"; and this statute makes a servant guilty of embezzlement who converts money or property received by him for his master, though it was neither his duty nor within his authority to receive it: Greaves's Crim. Law, Acts, 156; see Regina v. Gale, L. R. 2 Q. B. 141. Many American statutes speak of the money or property "of another" or "of any other person,” and these phrases indicate the property of any other person than the servant or agent; that is, the property of the master or of some one else other than the servant: People v. Hennessey, 15 Wend. 147; People v. Dalton, 15 Id. 581; State v. Porter, 26 Mo. 210; Commonwealth v. Stearns, 2 Met. 343. But upon common-law principles the goods must not, in any event, belong to the servant in whole or in part: See Regina v. Townsend, 1 Den. C. C. 167; S. C., 2 Car. & K. 168; Rex v. Hall, 1 Moody C. C. 474; Regina v. Hunt, 8 Car. & P. 642; Regina v. Miller, 2 Moody C. C. 249; and see infra, "Joint Ownership."

In Texas the proof must support the allegation of ownership, or there cannot be a conviction: Livingston v. State, 16 Tex. App. 652; Webb v. State, 8 Id. 310. In State v. Healy, 48 Mo. 531, it is held that an agent who converts to his own use money intrusted to him by his principal for the purchase of land is guilty of embezzlement; and the case is not altered by the fact that the land contracted for proved to be in litigation, and that the title was for that cause in abeyance; the main point contended for being that there was no one who was entitled to receive the money.

JOINT OWNERSHIP OR INTEREST-COPARTNERS - COMMISSIONS. - Partners and members of societies cannot be convicted of embezzlement of the property of the partnership or society; for their possession is the possession of the firm or society, and they cannot be agents or servants, since, by virtue of their membership of the firm or society, they are also principals or masters, and they are also part owners of the property: Rex v. Mason, Dowl. & R. N. P. 22; Rex v. Marsh, 3 Fost. & F. 523; Rex v. Bren, Leigh & C. 346; S. C., 9 Cox C. C. 398; Rex v. Diprose, 11 Id. 185; Rex v. Taffs, 4 Id. 169; Commonwealth v. Berry, 99 Mass. 428; Napoleon v. State, 3 Tex. App. 522. And the same rule will apply in the case of other joint owners or tenants in

common, as in the case of larceny: 1 Wharton's Crim. Law, secs. 922, 935. But this immunity does not attach as long as the partnership contract is executory only, or dependent upon unperformed conditions precedent: Napoleon v. State, 3 Tex. App. 522.

A right to deduct commissions out of an amount received is held to give the defendant such an interest in the property that he cannot be convicted for the embezzlement of it: Carter v. State, 53 Ga. 326; State v. Kent, 22 Minn. 41; see Commonwealth v. Libbey, 11 Met. 64; S. C., 45 Am. Dec. 185; Commonwealth v. Stearns, 2 Id. 343; Webb v. State, 8 Tex. App. 310; S. C., 4 Lawson's Crim. Def. 894. But see Campbell v. State, 35 Ohio St. 70. But a mere right to receive payment in commissions, which the employee has no right to deduct, but which are to be paid him by his employer, does not create in him an interest in the fund which will prevent a conviction: Commonwealth v. Smith, 129 Mass. 104; Rex v. Carr, Russ. & R. C. C. 198. See also Rex v. Hartley, Id. 139; Regina v. Atkinson, Car. & M. 525; S. C., 2 Moody C. C. 278; Rex v. Hall, Russ. & R. C. C. 463; S. C., 3 Stark. 67; Rex v. Hoggins, Russ. & R. C. C. 145; Campbell v. State, 35 Ohio St. 70. In some states, however, it is by statute made a crime for the agent to refuse on demand to deliver over the money or property after deducting his fees or commissions: State v. Bancroft, 22 Kan. 200; State v. Herzog, 25 Minn. 490; and see State v. Shadd, 80 Mo. 358.

BY VIRTUE OR IN COURSE OF EMPLOYMENT.- Under the former English statutes it was necessary that the property should have come to the hands of the defendant "by virtue of his employment." That is, it must have come into his possession in the ordinary course of his duties, or he must have had special authority to receive it. The nature, scope, and extent of his employ. ment must have been such as to authorize the receipt of the money or property embezzled, or he must have been specially authorized to that effect: Regina v. White, 8 Car. & P. 742; Regina v. Townsend, Car. & M. 178; Regina v. Masters, 3 New Sess. Cas. 326; S. C., 1 Den. C. C. 332; 2 Car. & K. 930; Temp. & M. 1; Rex v. Smith, Russ. & R. C. C. 516; Rex v. Hughes, 1 Moody C. C. 370; Rex v. Spencer, Russ. & R. C. C. 299; Rex v. Prince, Moody & M. 21; Rex v. Batty, 2 Moody C. C. 257. And if he received the possession of the property without specific or general authority, but the taking was out of the scope of his service, he was not within the statute: Rex v. Thorley, 1 Id. 343; Rex v. Arman, Dears. C. C. 575; S. C., 7 Cox C. C. 45; Rex v. Mellish, Russ. & R. C. C. 516; Rex v. Salisbury, 5 Car. & P. 155; Regina v. Wilson, 9 Id. 27; Rex v. Hawtin, 7 Id. 281; Rex v. Snowley, 4 Id. 390; Regina v. May, Leigh & C. 13; S. C., 8 Cox C. C. 421; Rex v. Beacall, 1 Car. & P. 310; Rex v. Harris, 6 Cox C. C. 363; S. C., Dears. C. C. 344. Even though the party paying him the money believed him to be properly authorized: Rex v. Hawtin, 7 Car. & P. 281. The present English statute omits the phrase "by virtue of his employment," but the property must be received “for, in the name or on account of, his master or employer": Rex v. Cullum, 12 Cox C. C. 469; S. C., L. R. 2 C. C. 28; and under this statute a servant who receives money for his employer may be guilty of embezzling it, though it was not in the line of his duty, nor within the scope of his author. ity to receive it: Greaves's Crim. Law, Acts, 156. But the money must have been received for or on the account of the master, as laid in the indictment; and if it appears that he received it on account of some one else, who was in fact his master, and not on account of the person set out in the indictment as his master, the indictment cannot be supported: Rex v. Beaumont, Dears. C. C. 270; Rex v. Thorpe Dears. & B. C. C. 562. See also Rex v. Gale, L. B.

2 Q. B. D. 141; Quarman v. Burnett, 6 Mees. & W. 499; Rex v. Harris, Dears. C. C. 344; S. C., 6 Cox C. C. 363; Rex v. Glover, Leigh & C. 466.

Many of the American statutes contain, after the manner of the original English statute, the phrase, “by virtue of his employment." And it is one of the essential elements of the crime that the agent or servant, clerk or bailee, received the property in the course of his employment; and this must be alleged and proved, as well as that the property belonged to the master, or to some one else than the servant, and that the defendant appropriated it to his own use: Ex parte Hedley, 31 Cal. 108; Pullam v. State, 78 Ala. 31; State v. Johnson, 48 Iowa, 370; Commonwealth v. O'Malley, 97 Mass. 584; People v. Burr, 41 How. Pr. 295; People v. Sherman, 10 Wend. 298; People v. Hennessey, 15 Wend. 147; People v. Dalion, 15 Id. 581; People v. Allen, 5 Denio, 79; Ricord v. Central Pacific R. R. Co., 15 Nev. 167; Johnson v. State, 9 Baxt. 281; Griffin v. State, 4 Tex. App. 390; S. C., 4 Lawson's Crim. Def. 909; State v. Johnson, 21 Tex. 775; Reed v. State, 16 Tex. App. 590. And this would seem to be true, even if the statute contained no such words; for the gist of this defense, as distinguished from larceny, is the breach of trust committed by one occupying a fiduciary relation; and if there be no such relation, or if the property was not received with any reference to that relation, but in an entirely different capacity, then it is not embezzlement, because there is no breach of trust or confidence: See Commonwealth v. Hays, 14 Gray, 62; S. C., 74 Am. Dec. 662; and supra, “Definition." Thus, embezzlement cannot be charged with reference to funds acquired and spent before the party assumed a fiduciary capacity, as before he was elected treasurer of a corporation: Lee v. Commonwealth, 1 S. W. Rep. 4 (Ky.). This is a very proper application of the rule. But care should be taken that it be not extended beyond its proper limit. And this limit is marked by the gist of the offense, which rests upon the fiduciary relation. So long as this relation is shown, the offense may exist; when it fails, there can be no embezzlement. This relation may exist in connection with an act which is not within the agent's authority, as where he is paid money for his principal, though he is not in the habit of receiving money in that way, and has no special authority to do so in that manner, for it is certainly unsound to regard the fiduciary relations of employer and employee as bounded by the peculiar and particular duties assigned to him. So long as he acts within the general scope of his authority, the fiduciary relation exists; and as he may, within the scope of his authority, do unauthorized acts, the fiduciary relation may exist in connection with unauthorized acts. Again, it must be remembered that the statutes do not speak of money received by means of an authorized act, but "by virtue of the employment."

A mistake of the sort indicated was made in the case of Rex v. Snowley, 4 Car. & P. 390, where Parke, J., held that a servant who received a sum for the hire of a stallion, which was less than he was authorized by his master to take, and appropriated it, was not within the statute, because his act was without authority. But as the act was within the sphere of his occupation, he being employed to "lead" the stallion and receive the proceeds, it was one affected by the fiduciary relation; the money was received by virtue of his employment, and he should have been convicted. But this case is no longer followed: Regina v. Aston, 2 Car. & K. 413. And in Regina v. Beechey, Russ. & R. C. C. 319, it was held that where the business of a clerk was to receive, in-doors, money which out-door collectors received from customers, yet in one instance he took a sum directly from a customer out of doors, and embezzled it, he was within the statute. And see Regina v. Wilson, 9 Car. & P. 27;