People, 82 Ill. 425; Commonwealth v. Foster, 107 Mass. 221. Money received by a clerk from collections on bills, intrusted to him to collect by his employer, is money intrusted to him: Ex parte Ricord, 11 Nev. 287. The disposal of collateral security by the holder before the debt is due, which it secures, has been held not to be embezzlement: Commonwealth v. Butterick, 100 Mass. 1. Where one places his money in the hands of another, to be by him loaned at a stipulated rate of interest, relying upon the honesty of the one receiving it for its safe return, it is not embezzlement if the party fail to properly account for the money so received: Kribs v. People, 82 Ill. 425. A fraudu lent conversion by one partner of property belonging to the firm, or by one of two joint owners of property, does not constitute this crime: Napoleon v. State, 3 Tex. App. 522; State v. Kent, 22 Minn. 41. Mere conversion, unless accompanied by a criminal intent, is not punishable: State v. Reilly, 4 Mo. App. 392. Shares of stock are the subject of embezzlement: People v. Williams, 60 Cal. 1. Indictment.-An indictment for embezzlement should give the description of the property embezzled with the same particularity as is required in an indictment for larceny: People v. Cox, 40 Cal. 275; People v. Cohen, 8 Id. 42. The indictment may contain two counts, one charging larceny and the other embezzlement, when it is not certain which specific offense will be proved: People v. Bogart, 36 Id. 245; see also People v. Doss, 39 Id. 428. 504. When officers of state or any association guilty of embezzlement. SEO. 504. Every officer of this state, or of any county, city, city and county, or other municipal corporation or subdivision thereof, and every deputy, clerk, or servant of any such officer, and every officer, director, trustee, clerk, servant, or a gent of any association, society, or corporation (public or private), who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement. [Amendment, approved April 6, 1880; Amendments 1880, 8 (Ban. ed. 129); took effect immedi ately.] See sec. 503, note; State v. Brooks, 42 Tex. 62. 505. When carrier or other person having property for transportation for hire guilty of embezzlement. SEC. 505. Every carrier or other person having under his control personal property for the purpose of transportation for hire, who fraudulently appropriates it to any use or purpose inconsistent with the safe-keeping of such property and its transportation according to his trust, is guilty of embezzlement, whether he has broken the package in which such property is contained, or has otherwise separated the items thereof, or not. Carrier for hire. In the case of State v. Stoller, 38 Iowa, 321, under a section corresponding to the above, it was held that an indictment for embezzlement against defendant, as a carrier for hire, could not be sustained when it appeared that the property had simply been stored with him, and converted by him to his own use. 506. When trustee, banker, etc., guilty of embezzlement. SEC. 506. Every trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator, or collector, or person otherwise intrusted with or having in his control property for the use of any other person, who fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement. 507. When bailee, tenant, or lodger guilty of embezzlement. SEC. 507. Every person intrusted with any property as bailee, tenant, or lodger, or with any power of attorney for the sale or transfer thereof, who fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, 'is guilty of embezzlement. Embezzlement: See People v. Poggi, 19 Cal. 600; People v. Cohen, 8 Id. 42; People v. Garcia, 25 Id. 531; People v. Smith, 23 Id. 280; People v. Murphy, 51 Id. 376. And for other cases of embezzlement by bailee, see People v. Salorse, 62 Id. 139; People v. Flores, 64 Id. 426. 508. When clerk, agent, or servant guilty of embezzlement. SEC. 508. Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement. Embezzlement: See secs. 503, 507, and notes. 509. Distinct act of taking. SEC. 509. A distinct act of taking is not necessary to constitute embezzlement. Embezzlement and larceny distinguished: See sec. 484. 510. Evidence of debt undelivered may be subject of embezzlement. SEC. 510. Any evidence of debt negotiable by delivery only, and actually executed, is the subject of embezzlement, whether it has been delivered or issued as a valid instrument or not. See also sec. 494, ante. 511. Claim of title a ground of defense. SEC. 511. Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable. But this provision does not excuse the unlawful retention of the property of another to offset or pay demands held against him. 512. Intent to restore property no defense. SEC. 512. The fact that the accused intended to restore the property embezzled is no ground of defense or of mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, charging the commission of the offense. 513. Actual restoration ground for mitigation of punishment. SEC. 513. Whenever, prior to any information laid before a magistrate, charging the commission of embezzlement, the person accused voluntarily and actually restored or tendered restoration of the property alleged to have been embezzled, or any part thereof, such fact is not a ground of defense, but it authorizes the court to mitigate punishment, in its discretion. Payment by embezzler no bar to prosecution. In Fagnan v. Knox, 66 N. Y. 525, it was said that if money was embezzled the party injured had a right to settle with the embezzler, as for a debt upon an implied con 514. Punishment for embezzlement. tract, and that such settlement was no bar to a criminal prosecution: See sec. 9, note. Compromise by permission of court discharges prisoner, when: Sec. 1378, post. SEO. 514. Every person guilty of embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzled; and where the property embezzled is an evidence of debt or right of action, the sum due upon it or secured to be paid by it shall be taken as its value; provided, that if the embezzlement or defalcation be of the public funds of the United States, or of this state, or of any county, city, and county, or municipality within this state, the offense is a felony, and shall be punishable by imprisonment in the state prison not less than one year nor more than ten years; and the person so convicted shall be ineligible thereafter to any office of honor, trust, or profit under this state. [Amendment, approved April 6, 1880; Amendments 1880, 8 (Ban. ed. 129); took effect immediately.] Embezzlement of public funds.-"No person convicted of the embezzlement or defalcation of the public funds of the United States, or of any state, or of any county or municipality therein, shall ever be eligible to any office 518. Extortion defined. of honor, trust, or profit under this state, and the legislature shall provide by law for the punishment of embezzlement or defalcation as a felony:" Const. Cal., art. 4, sec. 21. CHAPTER VII, EXTORTION. SEC. 518. Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right. Extortion. In a general sense this term includes any oppression under color of right. The word comes from the Latin extorquere, to wring or wrest from. Burrill defines it to be the unlawful or violent wringing of money, or money's worth, from any man; a taking more than is due by color or pretense of right: Burrill's Law Dict., tit. Extortion. To constitute the offense, there must be the receipt of money or something of value: Rex v. Burdett, 1 Ld. Raym. 148; State v. Slotts, 5 Black f. 460. A mere agreement to pay fees not due will not constitute the offense. The taking of a promissory note for fees not due is not extortion: Commonwealth v. Cony, 2 Mass. 523; Commonwealth v. Pease, 16 Id. 91. The taking of illegal fees by a public officer may often result from mistake, and where this is the case and there is no corrupt motive, no extortion has been committed: 2 Whart. Crim. L., 8th ed., sec. 1576; State ads. Cutter, 36 N. J. L. 125; but if the bare act of taking illegal fees is made indictable, then the defendant may be convicted, no matter what may have been his motive: 2 Whart. Crim. L., Sth ed., sec. 1576; see sec. 107 of an act concerning crimes and punishments, passed April 16, 1859, Sess. Laws, 1850, 242. In Ryan v. Johnson, 5 Cal. 86, the section of the act just cited, defining official extortion, was held constitutional. In note 3, section 484, the distinction between extortion, larceny, robbery, and embezzlement is considered, 519. What threats may constitute extortion. Robbery: Sec. 211, note. SEC. 519. Fear, such as will constitute extortion, may be induced by a threat, either: 1. To do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or member of his family; or, 2. To accuse him, or any relative of his, or member of his family, of any crime; or, 3. To expose of impute to him or them any deformity or disgrace; or, 4. To expose any secret affecting him or them. Extortion.-Subd. 1. Injury to property: Subd. 3. Exposing one's disgrace.—For See sec. 523. The right to take and prosecute case in point, see People v. Cadman, 57 Cal. an appeal is property within the meaning of 562. this chapter: People v. Cadman, 57 Cal. 562. 520. Punishment of extortion in certain cases. SEC. 520. Every person who extorts any money or other property from auother, under circumstances not amounting to robbery, by means of force or any threat, such as is mentioned in the preceding section, is punishable by imprisonment in the state prison not exceeding five years. Robbery: Sec. 211, and note. 521. Punishment of extortion committed under color of official right. SEC. 521. Every person who commits any extortion under color of official right, in cases for which a different punishment is not prescribed in this code, is guilty of a misdemeanor. 522. Obtaining signature by means of threats. SEC. 522. Every person who, by any extortionate means, obtains from another his signature to any paper or instrument, whereby, if such signature were freely given, any property would be transferred, or any debt, demand, charge, or right of action created, is punishable in the same manner as if the actual delivery of such debt, demand, charge, or right of action were obtained. 523. Sending threatening letters with intent to extort money, etc. SEC. 523. Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in section five hundred and nineteen, is punishable in the same manner as if such money or property were actually obtained by means of such threat. Offense, when complete: Sec. 660. Threatening letters.-In England and most of the United States statutes have been adopted making the sending of letters containing threats, with intent to extort money or other property, an indictable offense. Under such statutes the person threatened must be averred and proved: Rex v. Dunkley, 1 Moo. C. C. 90; and so must the fact of sending: Regina v. Jones, 2 Cox C. C. 434; Rex v. Paddle, Russ. & Ry, 484. The sending, however, may be inferred from the proof of other facts. In Rex v. Wagstaff, Russ. & Ry. 398, it was held that the dropping of a letter in a man's way, in order that he might pick it up, was a sending of it. So the fastening of a threatening letter on a gate in a public highway is some evidence to go to a jury to prove a sending: Regina v. Williams, 1 Cox C. C. 16: see Regina v. Grimwade, Id. 67; 2 East P. C. 1120. It must also appear that threats were intended: 2 Whart. Crim. L., 8th ed., sec. 1664. A letter that is ambiguous may be explained by parol proof of extraneous facts as well as by declarations of the writer: Id., sec. 1665. The meaning of the letter, if ambiguous, must be determined by the jury, though whether a crime is threatened by a letter that is not ambiguous is for the court: Id.; Rex v. Tucker, 1 Moo. C. C. 134; Regina v. Hendy, 4 Cox C. C. 243; Regina v. Menage, 3 F. & F. 310; Regina v. Coghlan, 4 Id. 316; Regina v. Braynell, 4 Cox C. C. 402; State v. Hollyway, 41 Iowa, 200; Longley v. State, 43 Tex. 490. It is not necessary that the matter set forth in the letter should be libelous to constitute the offense: Regina v. Coghlan, 4 F. & F. 316. The intent to extort may be implied from the circumstances, and no express demand of money is necessary. But if it appears that the object of the letter is to compel the payment of accounts honestly believed to be due, there is no evidence of an intent to extort: Id. Property.-Right to appeal is property: People v. Cadman, 57 Cal. 562. Subscribed or not.-It is not necessary to allege and prove that the accused wrote or subscribed the letter complained of. The offense is complete when he sends it: People v. Cadman, 57 Cal. 562. Venue may be laid in the place of the reception of the letter: 1 Whart. Crim. L., 8th ed., sec. 288; 2 Id., secs. 1206, 1666; Rex v. Gerwood, 2 East P. C. 1120; Rex v. Essex, Id. 1125; People v. Griffin, 2 Barb. 427. 524. Attempts to extort money or property by means of verbal threats. SEO. 524. Every person who unsuccessfully attempts, by means of any verbal threat, such as is specified in section five hundred and nineteen, to extort money or other property from another, is guilty of a misdemeanor. Entry of judgment not until twenty days after the sentence and entry thereof in the minute-book will not entitle the convicted to be discharged on habeas corpus, the court having had jurisdiction of the person and of the cause: Ex parte Raye, 63 Cal. 491. 525. Officers of railroad companies making overcharges. SEC. 525. Every officer, agent, or employee of a railroad company who asks or receives a greater sum than is allowed by law for the carriage of passengers or freight is guilty of a misdemeanor. CHAPTER VIII. FALSE PERSONATION AND CHEATS. 528. Marrying under false personation. SEC. 528. Every person who falsely personates another, and in such assumed character marries or pretends to marry, or to sustain the marriage relation towards another, with or without the connivance of such other, is guilty of a felony. "Such marriage is voidable: Civ. Code, sec. 58. The word 'personate' alone, in its ordinary definition, would probably include all that the prefix 'falsely' imports. Still it is used in the penal code of New York, section 620. Our statute was falsely represent or personate.' Here the prefix to 'represent' was necessary. The expression of the text, however, being similarly used in different states, will enable the courts to have less, if any, trouble in expounding it. Bouvier in his Law Dict., tit. Personate, says: 'At common law, personating another for the purpose of fraud was only a misdemeanor.' The text properly regarding a fraud in the solemn engagement of the marital relation as of a very grave character, affixes to it a correspondingly heavy punishment, greater even than the New York code:" Commissioners' note. 529. Falsely personating another in other cases. SEC. 529. Every person who falsely personates another, and in such assumed character, either: 1. Becomes bail or surety for any party in any proceeding whatever, before any court or officer authorized to take such bail or surety; or, 2. Verifies, publishes, acknowledges, or proves, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, and used as true; or, 3. Does any other act whereby, if it were done by the person falsely personated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party personating, or to any other person; -Is punishable by imprisonment in the county jail not exceeding two years, or by fine not exceeding five thousand dollars. False personation.-At common law, a false the public at large, is an indictable offense: 2 personation, by which one obtains credit from Whart. Crim. L., 8th ed., sec. 1124. 530. Receiving property in a false character. SEC. 530. Every person who falsely personates another, and in such assumed character receives any money or property, knowing that it is intended to be delivered to the individual so personated, with intent to convert the same to his own use, or to that of another person, or to deprive the true owner thereof, is punishable in the same manner and to the same extent as for larceny of the money or property so received. See section 529, note. The offense described in the above section, though punishable in the 531, Fraudulent conveyances. same manner, does not constitute larceny: 1 Whart. Crim. L., 8th ed., sec. 888. SEC. 531. Every person who is a party to any fraudulent conveyance of any lands, tenements, or hereditaments, goods or chattels, or any right or interest issuing out of the same, or to any bond, suit, judgment, or execution, contract, or conveyance, had, made, or contrived with intent to deceive and defraud others, or to defeat, hinder, or delay creditors or others of their just debts, damages, or demands; or who, being a party as aforesaid, at any time wittingly and willingly puts in, uses, avows, maintains, justifies, or defends the same, or any of them, as true, and done, had, or made in good faith, or upon good consideration, or aliens, assigns, or sells any of the lands, tenements, hereditaments, goods, chattels, or other things before mentioned, to him or them conveyed as aforesaid, or any part thereof-is guilty of a misdemeanor. Fraud.-Actual fraud is defined by section 1572, and constructive fraud by section 1573, Civ. Code. Fraudulent conveyances: Civ. Code, secs. 3439-3442. 532. Obtaining money by false pretenses and by false reports of wealth, etc. SEC. 532. Every person who knowingly and designedly, by false or fraudulent representation or pretenses, defrauds any other person of money or property, or who causes or procures others to report falsely of his wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby |