vants. What is outside of the house, such as trunks on a truck at a railway station, though under the eaves of the building, so as to be protected from the weather, is not so far under the protection of the building that taking it is larceny from the building.

SECTION 5. EMBEZZLEMENT,

§ 145. In general. Embezzlement is not a common law offense. The statutes on the subject, both in this country and in England, had their origin in a design to supply a defect which was found to exist in the criminal law. By reason of nice and subtle distinctions, which the courts of law had recognized and sanctioned, it was difficult to reach and punish the fraudulent taking and appropriation of money and chattels by persons exercising certain trades and occupations, by virtue of which they held a relation of confidence or trust toward their employers or principals, and thereby became possessed of their property. In such cases the moral guilt was the same as if the offender had been guilty of an actual felonious taking; but in many cases he could not be convicted of larceny, because the property which had been fraudulently converted was lawfully in his possession by virtue of his employment, and there was not that technical taking or asportation which is essential to the proof of the crime of larceny (54). The statutes relating to embezzlement were intended to embrace this class of offenses; and it may be said generally that they do not apply to cases where the element of a breach of trust or confidence in the fraudu

(54) See § 122 of this article.

lent conversion of money or chattels is not shown to exist. These statutes, like all penal enactments, are strictly construed. It may be put down as a general rule that if the goods were in actual or constructive possession of the owner at the time of the taking and conversion the crime is larceny and not embezzlement. If they were in the lawful possession of the accused at the time of the wrongful conversion, the act is embezzlement, not larceny.

Where the prisoner was the clerk of A., and received money from the hands of another clerk of A. to pay for an advertisement, and kept part of the money, falsely representing that the advertisement had cost more than it had; it was held that this was larceny and not embezzlement, because A. had had custody of the money by the hands of the other clerk (55). The distinction is between custody and possession. A servant who receives from his master goods or money to use for a specific purpose has the custody of them, but the possession remains in the master. The statutes are designed to cover a class of cases in which there exists the element of a trust or confidence reposed in a person by reason of the delivery of property to him, which he voluntarily takes for safe keeping, and which trust or confidence he has violated by the wrongful conversion of the property. Beyond this the statute was not intended to go. Where money paid or property delivered through mistake has been misappropriated or converted by the party receiving it, there is no breach of a trust or violation of a confidence intentionally

(55) Rex v. Murray. 1 Mood. 276.

reposed by one party and voluntarily assumed in the other. The moral turpitude is therefore not so great as in those cases usually comprehended within the offense of embezzlement.

SECTION 6. RECEIVING STOLEN GOODS.

§ 146. In general. In 1691 it was enacted by statute, 3 Wm. & M., c. 9, § 4, that, "forasmuch as thieves and robbers are much encouraged to commit such offenses because a great number of persons make it their trade and business to deal in the buying of stolen goods; be it therefore enacted by the authority aforesaid, that if any person or persons shall buy or receive any goods or chattel that shall be feloniously taken or stolen from any other person, knowing the same to be stolen, he or they shall be taken and deemed an accessory or accessories to such felony after the fact, and shall incur the same punishment as an accessory or accessories to the felony after the felony committed." By subsequent statutes the receiver might be convicted either as accessory to the theft or as an independent felon. These statutes are the foundation. of our legislation on the subject, and the statutes resemble each other in general, though differing in minor details. Within these statutes one is guilty of receiving stolen goods who takes them without profit or bargain with the thief, for the mere purpose of concealing them and the theft; and the act may be done in person or through a servant. All persons implicated in the concealment and conversion of the goods after the theft and having joint or several control of them, on which they can procure de

livery to the owner on adjustment of the blackmail to be charged for the return of the goods, or uniting in the disposition of them, are guilty of the statutory crime of receiving stolen goods. But one who receives the thief with the design of treating with him for the goods he has stolen has been held not to be guilty of receiving the goods before he has obtained delivery from the thief. If the goods were embezzled, not stolen, one receiving them is not guilty of receiving stolen goods. If the goods have been reduced to the possession of the owner since the theft, and he has them delivered to the receiver, with the design to convict him, the goods have ceased to be stolen goods before the receiver gets them, and he cannot be convicted. While knowledge of the theft at the time of receiving the goods is an essential element of the crime, it is not necessary that the receiver have direct and positive knowledge. It is sufficient that he has good reason to believe and does believe that they have been stolen; and proof of knowledge sufficient to convict would be made out by showing that the receiver paid only a fraction of the real value of the goods, denied having received them, lied about his disposition of them, knew that the seller was an ex-convict, and the like. If the circumstances surrounding the reception of the goods were such that a man of the defendant's age and intelligence would have suspected that the goods were stolen, and he received them without inquiry to satisfy himself that the seller had lawful title, the jury would be warranted in finding the guilty knowledge of the defendant essential to convict him.

SECTION 7. CHEATING AT THE COMMON LAW.

§ 147. In general. The crime of common law cheating is practically superseded by statutes against obtaining goods by false pretenses. A fraud accomplished by the use of a false token or symbol against which common prudence cannot guard, such as false weights and measures, is cheating at common law, and an offense independent of statute. It was thought that the general public did not need protection against frauds practiced by means of mere lying, and the unsupported representations of the defendant; and that therefore it was well enough to leave persons thus defrauded to procure their relief by private civil action for damages. The fallacy of this doctrine was soon demonstrated; for designing, irresponsible persons immediately took from it permission to prey with impunity on the weaker and more credulous part of the public; and the proportion of those who could be defrauded by a fair story was found to be much larger than had been supposed; which led to the statutes concerning obtaining money or goods by false and fraudulent pretenses.

SECTION 8. FORGERY.

§ 148. Defined. Forgery is a species of common law cheat which early took place as a crime under a separate name, and consists in falsely making or materially altering, with fraudulent intent, any writing which if genuine might apparently be of some legal efficacy or the foundation of a legal right or liability. Both the completed fraud and the unsuccessful attempt were criminal.