(b) Value.-The property must be of some value,802 but the extent of the value is not material unless made so by statute.803 In some states the statute makes the offense a felony or a misdemeanor according to the value of the property.304

(c) Ownership.—A person cannot embezzle property of which he is himself the owner," 305 or which he owns jointly with another, or out of which he is entitled to a commission as to which there has been no accounting.306 Some statutes require that the property shall be the property of the master or employer, Others merely require that it shall be "the property of another." In the latter case it is sufficient if it was owned by any person other than the accused.307

etc.

(d) Property Unlawfully Acquired or Held.-As in lar 308 so in embezzlement, the fact that the property was un

ceny,

301 The term "effects" covers choses in action, such as promissory notes, bills of exchange, etc. See State v. Newell, 1 Mo. 249; Rex v. Aslett, 2 Leach, C. C. 954; Rex v. Bakewell, 2 Leach, C. C. 943.

302 Perry v. State, 22 Tex. App. 19, 2 S. W. 600; Wolverton v. Com., 75 Va. 909; U. S. v. Nott, 1 McLean, 499, Fed. Cas. No. 15,900.

"Valuable security or effects" does not include invalid instruments. Rex v. Aslett, 2 Leach, C. C. 954.

303 See Washington v. State, 72 Ala. 272; People v. Salorse, 62 Cal. 139; People v. Bork, 78 N. Y. 346.

804 See State v. Mook, 40 Ohio St. 588; Gerard v. State, 10 Tex. App. 690; Harris v. State, 21 Tex. App. 478, 2 S. W. 830.

305 Reg. v. Barnes, 8 Cox, C. C. 129, Beale's Cas. 710; State v. Kent, 22 Minn. 41, 21 Am. Rep. 764; State v. Kusnick, 45 Ohio St. 535, 15 N. E. 481, 4 Am. St. Rep. 564.

Auctioneer is owner of funds received on sale of goods of another. Com. v. Stearns, 2 Metc. (43 Mass.) 343.

306 Reg. v. Brew, Leigh & C. 346; State v. Kent, supra. Where the relation of debtor and creditor exists between the master and servant as to the particular fund, there is no embezzlement. State v. Covert, 14 Wash. 652, 45 Pac. 304. See, also, People v. Wadsworth, 63 Mich. 500, 30 N. W. 99; Mulford v. People, 139 Ill. 586, 28 N. E. 1096.

307 State v. Kusnick, supra; State v. Kent, supra; Com. v. Stearns, 2 Metc. (Mass.) 343; Fleener v. State, 58 Ark. 98, 23 S. W. 1; People v. Hennessey, 15 Wend. (N. Y.) 147.

308 Ante, § 310.

lawfully acquired by the master or employer, or held unlawfully, does not render it any the less the subject of embezzlement.3

309

345. Possession at the Time of Conversion.

(a) In General.-As was stated in a previous section, the object of the statutes punishing embezzlement is to reach and punish persons who fraudulently appropriate or convert to their own use money or property which at the time is in their lawful possession, so that, as they do not commit a trespass, they are not guilty of larceny. This object, as we shall see, is taken into consideration by most of the courts in construing the statutes.

Statutes Expressly Requiring Possession by the Accused.— Some of the statutes, like the original and the present English statutes, expressly require that the money or other property shall have been in the "possession" of the accused at the time of the conversion.310 Clearly, under such a statute as this, a person who has the bare custody of property, as distinguished from the possession, is not guilty of embezzlement in converting it to his own use,311 but is guilty of larceny.812 It has been considered that such a statute does not apply to any case which is larceny at common law.3

313

309 Com. v. Smith, 129 Mass. 104; State v. Shadd, 80 Mo. 358; Woodward v. State, 103 Ind. 127, 2 N. E. 321; State v. O'Brien, 94 Tenn. 79, 28 S. W. 311; State v. Cloutman, 61 N. H. 143; State v. Littschke, 27 Or. 189, 40 Pac. 167. Thus, money intrusted to another for the purpose of accomplishing an immoral object may be embezzled. Com. v. Cooper, 130 Mass. 285; State v. Shadd, supra. And in the case of embezzlement from a corporation, it is no defense to show that the acquisition or possession of the property was unauthorized by its charter, Leonard v. State, 7 Tex. App. 417; or, in the case of a foreign corporation, that it was doing business in the state without a license, or acquired and held the property in violation of a statutory prohibition. People v. Hawkins, 106 Mich. 479, 64 N. W. 736; State v. O'Brien, supra.

810 See ante, § 343, notes.

311 Rex v. Murray, 1 Mood. C. C. 276, 5 Car. & P. 145.

312 Ante, § 317.

313 See Rex v. Headge, Russ. & R. 160, Beale's Cas. 706.

Statutes not Expressly Requiring Possession by the Accused. -Some of the statutes in this country are in much broader terms than the English statute, and do not expressly require that the property shall have come into the possession of the accused,314 and in construing these statutes the courts have differed. Most courts, however, have held that the statutes, being intended to supplement the law of larceny, and supply supposed defects therein, are not to be construed as applying to a conversion of property that amounts to larceny; and that they apply, therefore, only where the accused had the lawful possession of the property at the time of the conversion, and do not apply where he had the mere custody, and is therefore guilty of larceny.315

(b) Embezzlement by Servants-Delivery to Servant by Master. As was shown in treating of larceny, when a master delivers goods to his servant to be used by him in the course of his employment, or to be taken care of, he does not part with the possession. The servant has the bare custody, and, if he fraudulently converts the goods to his own use, he takes them from the constructive possession of the master, and is guilty of a trespass and larceny.316 In such a case he is clearly not guilty of embezzlement under a statute expressly requiring that

314 Thus, in Illinois, a statute punishes any person who shall embezzle or fraudulently convert to his own use "money, goods, or property delivered to him, which may be the subject of larceny," etc. Crim. Code Ill. § 165. There are similar statutes, or substantially similar ones, in Massachusetts and other states. Pub. St. Mass. p. 1143.

4

In South Carolina, a statute declares broadly that "any person committing a breach of trust with a fraudulent intent" shall be held guilty of larceny. See State v. Shirer, 20 S. C. 392.

315 Com. v. O'Malley, 97 Mass. 584, Beale's Cas. 518; Com. v. Berry, 99 Mass. 428, 96 Am. Dec. 767, Beale's Cas. 714; Com. v. Ryan, 155 Mass. 523, 30 N. E. 364, 31 Am. St. Rep. 560, Beale's Cas. 543; Kibs v. People, 81 Ill. 599, Mikell's Cas. 842; Johnson v. People, 113 Ill. 99; People v. Belden, 37 Cal. 51. Contra, State v. Wingo, 89 Ind. 204; State v. Shirer, 20 S. C. 392.

316 Ante, § 317.

he shall have been in "possession.”317 Nor, by the weight of authority, is he guilty under a statute which does not expressly require possession.318

A master may deliver property to his servant under such circumstances as to give him the possession, and not merely the custody, as where he lends him a horse or other property to use in his own business; and in such a case the servant, if he fraudulently converts the property to his own use, is guilty, not of larceny, but of embezzlement,319 like any other bailee.3

320

Delivery by Third Persons to Servant.-When money or property is delivered by a third person to a servant for or on account of his master, the servant has the possession, and is in the position of a mere bailee, until he has delivered the money or property to the master, or put it, intending to do so for the master, 321 where it is his duty to put it; and, if he fraudulently converts it before this, he is guilty of embezzlement, and not of larceny.322 After he has disposed of the property, however, by putting it in the proper place for the master, as in the safe, or money drawer, or cart, etc., it is in the constructive possession of the master, and, if the servant

317 Rex v. Murray, 1 Mood. C. C. 276, 5 Car. & P. 145; Rex v. Layender, 2 East, P. C. 566, Beale's Cas. 532.

318 Com. v. Berry, 99 Mass. 428, 96 Am. Dec. 767, Beale's Cas. 714; Johnson v. People, 113 Ill. 99; People v. Belden, 37 Cal. 51. State v. Wingo, 89 Ind. 204; State v. Shirer, 20 S. C. 392.

319 See ante, § 317b.

320 Post, § 345c.

Contra,

321 See Com. v. Ryan, 155 Mass. 523, 30 N. E. 364, 31 Am. St. Rep. 560, Beale's Cas. 543.

322 Rex v. Headge, Russ. & R. 160, Beale's Cas. 706; Reg. v. Masters, 1 Den. C. C. 332, Mikell's Cas. 689; Rex v. Sullens, 1 Mood. C. C. 129, Mikell's Cas. 688; Rex v. Walsh, Russ. & R. 215; Reg. v. Rud, Dears. C. C. 257, 6 Cox, C. C. 284, Beale's Cas. 536; Com. v. King, 9 Cush. (Mass.) 284; Com. v. Ryan, 155 Mass. 523, 30 N. E. 364, 31 Am. St. Rep. 560, Beale's Cas. 543; Kibs v. People, 81 Ill. 599, Mikell's Cas. 842.

afterwards converts it, his offense is larceny, and not embezzlement.3

323

324

(c) Embezzlement by Bailees-Possession Lawfully Acquired. As was shown in treating of larceny, one who is himself in lawful possession of property cannot commit a trespass, and therefore cannot be guilty of larceny, in fraudulently converting the property to his own use. A hirer of property, a carrier, a warehouseman, or any other bailee, if he has obtained possession lawfully and without a felonious intent, cannot commit larceny by converting the property to his own use while the bailment continues.325 In such a case he is guilty of embezzlement under the statutes punishing embezzlement by bailees, or by persons generally.326

Possession Obtained with Felonious Intent.-On the other hand, a person who obtains property by delivery from the owner or a third person under circumstances that would ordinarily make him a bailee, and give him the possession, commits a trespass, and is guilty of larceny, if he has a felonious intent to steal the property at the time he receives it.327 And in such a case, by the weight of authority, he cannot be indicted and convicted under the statutes punishing embezzlement.328

Termination of Bailment.-If a bailment is terminated, either by the terms of the contract of bailment, or by operation of law because of the wrongful act of the bailee, the possession revests constructively in the bailor, and a subsequent fraudu

323 Com. v. Ryan, supra; Reg. v. Rud, supra; Reg. v. Norval, 1 Cox, C. C. 95, Beale's Cas. 535. And see ante, § 317b (3).

324 Ante, § 316a.

325 Ante, § 316b.

326 Com. v. Simpson, 9 Metc. (Mass.) 138; Com. v. Doherty, 127 Mass. 20; People v. Husband, 36 Mich. 306; People v. Salorse, 62 Cal. 139; Hutchison v. Com., 82 Pa. 472.

327 Ante, § 316c.

328 People v. Salorse, 62 Cal. 139; People v. De Coursey, 61 Cal. 134; Johnson v. People, 113 Ill. 99; Quinn v. People, 123 Ill. 333, 15 N. E. 46; Moore v. U. S., 160 U. S. 268. Contra, State v. Tabener, 14 R. I. 272, 51 Am. Rep. 382.