The means by which an embezzlement is accomplished are not material, so long as there is a conversion.390 An agent may commit the crime by drawing a draft on his principal, payable to a third person, the same as though he received the money in person, if the principal pays the draft.391 And the pledge of his principal's property by an agent is embezzlement if it was intrusted to him merely for safe-keeping, or for sale on commission.392 Embezzlement may consist of a continuous series of acts of conversion.393

Authorized Acts.—A servant, agent, or bailee, who does with the property or money in his possession only what he is authorized to do by the terms of his employment, having no felonious intent, cannot be guilty of embezzlement.394 But authority to sell property, or to otherwise deal with it, is no defense, and does not bar an indictment for embezzlement, if the agent, servant, or bailee converts the same or its proceeds to his own use with a fraudulent intent.395 Where a bailee or agent has authority to sell property, and sells it, not for the purpose authorized, but with a fraudulent intent to appropriate it or its proceeds to his own use, he is guilty of embezzling the property itself as much as if he had no authority to sell, for the sale of the property with the fraudulent intent is a conversion.396

390 Leonard v. State, 7 Tex. App. 417; State v. Ezzard, 40 S. C. 312, 18 S. E. 1025.

Giving orders for grain in a warehouse. Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121.

891 Ex parte Hedley, 31 Cal. 109.

392 Morehouse v. State, 35 Neb. 643, 53 N. W. 571.

393 Brown v. State, 18 Ohio St. 497; Ker v. People, 110 Ill. 627, 51 Am. Rep. 706.

394 Com. v. Smith, 129 Mass. 104; Miller v. State, 16 Neb. 179, 20 N. W. 253.

395 Leonard v. State, 7 Tex. App. 417.

396 Leonard v. State, 7 Tex. App. 417; State v. Adams, 108 Mo. 208, 18 S. W. 1000.

If a bailee or agent, who has authority to sell goods, sells them without any intent to defraud his principal, and after the sale fraudu lently converts the proceeds, he is guilty of embezzling the proceeds,

349. The Intent.

To constitute embezzlement, there must be, as in larceny, a fraudulent intent to deprive the owner of his property. 398 If property is converted under a bona fide claim of right, an action for conversion may lie, but the conversion is not embezzlement, however unfounded the claim may be.399 The same is true in any other case of conversion by mistake, and without intent to defraud, 400

III. CHEATS AND FALSE PRETENSES.

(A) Common-Law Cheats.

350. Definition.-Cheating, as a common-law offense, is the fraudulent obtaining of the property of another by any deceitful and illegal practice or token, not amounting to a felony, which is of such a nature that it directly affects, or may di

but not of embezzling the goods. Baker v. State, 6 Tex. App. 346; Leonard v. State, 7 Tex. App. 417.

397 Ante, § 326 et seq.

398 Reg. v. Creed, 1 Car. & K. 63; Reg. v. Balls, L. R. 1 C. C. 328; Reg. v. Norman, Car. & M. 501; People v. Galland, 55 Mich. 628; People v. Hurst, 62 Mich. 276, 28 N. W. 838, Beale's Cas. 716; People v. Wadsworth, 163 Mich. 500, 30 N. W. 99; State v. Eastman, 60 Kan. 557, 57 Pac. 109; Spalding v. People, 172 Ill. 40; Com. v. Tuckerman, 10 Gray (Mass.) 173; State v. Leonard, 6 Cold. (Tenn.) 307.

In State v. Baldwin, 70 Iowa, 180, 30 N. W. 476, it was said: "The crime of embezzlement embraces all of the elements of larceny except the actual taking of the property or money embezzled. It is the larceny of money or property rightfully in the possession of the party charged with the crime."

399 Reg. v. Creed, 1 Car. & K. 63; Reg. v. Norman, Car. & M. 501; Ross v. Innis, 35 Ill. 487, 85 Am. Dec. 373; Beaty v. State, 82 Ind. 228.

Though the bailee cannot dispute his bailor's title, a good faith claim that the property was stolen by the bailor of a third person and belongs to him will exculpate the bailee. State v. Littschke, 27 Or. 189, 40 Pac. 167.

400 State v. Smith, 47 La. Ann. 432, 16 So. 938; Van Etten v. State, 24 Neb. 734, 40 N. W. 289.

rectly affect, the public at large. 401 Such a cheat is a misdemeanor at common law.

351. Indictable Cheats and Private Frauds Distinguished.

402

To render a cheat indictable at common law, the means by which it is accomplished must be such as affect or may affect the public at large, and not merely a single individual. The cheat must be of a public nature, and such that common prudence cannot guard against it. It is a misdemeanor at common law for a dealer to cheat a customer by using false weights or measures, or for a person to obtain another's money or property by means of a false token, if it be of such a nature as to be likely to deceive the public generally.403 And a conspiracy to defraud is indictable at common law. 404 These are fraudulent practices which affect, or may affect, the public at large, and against which common prudence cannot guard.405 But for a person to obtain another's money or property by a mere lie, or by a promise which he does not intend to perform, or by other practices not affecting the public, is a mere private fraud, and is not indictable unless made so by statute.406

401 Steph. Dig. Crim. Law, art. 338; 2 East, P. C. 818; Rex v. Wheatly, 2 Burrow, 1125, 1 W. Bl. 273, Beale's Cas. 97. And see Middleton v. State, Dudley (S. C.) 275, Mikell's Cas. 57; State v. Renick, 33 Or. 584, 56 Pac. 275.

402 Rex v. Wheatly, 2 Burrow, 1125, 1 W. Bl. 273, Beale's Cas. 97; Young v. Rex, 3 Term R. 104; Rex v. Dunnage, 2 Burrow, 1130; People v. Gates, 13 Wend. (N. Y.) 319.

403 Reg. v. Mackarty, 2 Ld. Raym. 1179, 6 Mod. 301, 2 East, P. C. 823; Com. v. Speer, 2 Va. Cas. 65; State v. Stroll, 1 Rich. (S. C.) 244. Selling goods with false marks on them, making them appear to be what they are not, is a common-law cheat. Reg. v. Closs, Dears. & B. 460, 7 Cox, C. C. 494; Rex v. Edwards, 2 East, P. C. 820; Rex v. Worrel, 2 East, P. C. 820; Respublica v. Powell, 1 Dall. (Pa.) 47, Mikell's Cas. 56.

404 Reg. v. Mackarty, 2 Ld. Raym. 1179, 6 Mod. 301; 2 East, P. C. 823; Com. v. Warren, 6 Mass. 74; ante, § 144.

405 Rex v. Wheatly, 2 Burrow, 1125, 1 W. Bl. 273, Beale's Cas. 97.

406 Rex v. Wheatly, 2 Burrow, 1125, 1 W. Bl. 273, Beale's Cas. 97;

This distinction was clearly brought out in a leading English case,407 in which a brewer was indicted for a cheat in delivering sixteen gallons of beer for and as eighteen gallons, which he had contracted to deliver, and obtaining pay for the latter amount. It was held that this was not an indictable offense. Lord Mansfield said: "That the fact here charged should not be considered as an indictable offense, but left to a civil remedy by an action, is reasonable and right in the nature of the thing, because it is only an inconvenience and injury to a private person arising from that private person's own negligence and carelessness in not measuring the liquor, upon receiving it, to see whether it held out the just measure or not. The offense that is indictable must be such a one as affects the public, as if a man uses false weights and measures, and sells by them to all or to many of his customers, or uses them in the general course of his dealing; so, if a man defrauds another, under false tokens; for these are deceptions that common care and prudence are not sufficient to guard against. So, if there be a conspiracy to cheat for ordinary care and caution is no guard against this. Those cases are much more than mere private injuries; they are public offenses. But here it is a mere private imposition or deception. No false weights or measures are used, no false tokens given, no conspiracy; only an imposition upon the person he was dealing with in delivering him a less quantity instead of a greater which the other carelessly accepted. 'Tis

Rex v. Lara, 2 Leach, C. C. 652, 2 East, P. C. 827, 6 Term R. 565; Reg. v. Eagleton, Dears. C. C. 376; Rex v. Bryan, 2 Strange, 866; Com. v. Warren, 6 Mass. 72; State v. Justice, 2 Dev. (N. C.) 199; People v. Miller, 14 Johns. (N. Y.) 371; People v. Babcock, 7 Johns. (N. Y.) 201, 5 Am. Dec. 256; Ranney v. People, 22 N. Y. 413; Hartmann v. Com., 5 Pa. 60; Com. v. Hickey, 2 Pars. Sel. Cas. (Pa.) 317; Wright v. People, 1 Ill. 102; Middleton v. State, Dudley (S. C.) 275, Mikell's Cas. 57; People v. Garnett, 35 Cal. 470, 95 Am. Dec. 125; State v. Renick, 33 Or. 584, 56 Pac. 275. Compare, as contra, Hill v. State, 1 Yerg. (Tenn.) 76, 24 Am. Dec. 441.

See, also, Steph. Dig. Crim. Law, art. 338.

407 Rex v. Wheatly, supra.

only a nonperformance of his contract, for which nonperformance he may bring his action."408

(B) False Private Tokens.

352. In general.—To fraudulently obtain property by means of a false token not of such a nature as to affect the public generally was not an offense at common law, but it has been made so in some jurisdictions by statute.

353. Common law.

At common law, as we have seen, it was an indictable offense to cheat by means of false tokens of such a nature as to deceive or affect the public at large. 409 It was not an offense, however, to use mere private tokens.410

354. Statutes.

This was changed in England by the statute of 33 Hen. VIII. c. 1, making all cheats by false tokens indictable, whether of a public or a private nature.411 This statute is old enough to be

408 In Reg. v. Jones, 2 Ld. Raym. 1013, 1 Salk. 379, Mikell's Cas. 845, the defendant had obtained money from the prosecutor by pretending to be sent for it by a person who had not sent him. The court said: "It is not indictable, unless he came with false tokens. We are not to indict one man for making a fool of another; let him bring his action." And see Rex v. Bryan, 2 Strange, 866.

The giving of a check on a bank by one who has no account there, and falsely representing that it is good, is not a common-law cheat. Rex v. Lara, 2 Leach, C. C. 647, 2 East, P. C. 819.

It is not an indictable cheat at common law to obtain money or goods by means of a fraudulent promise to send a pledge, or to pay. See Nehuff's Case, 1 Salk. 151; Hartmann v. Com., 5 Pa. 60.

Nor is it cheating at common law to induce another to purchase a promissory note that has been paid, by falsely and fraudulently representing that it is unpaid. Middleton v. State, Dudley (S. C.) 275, Mikell's Cas. 57.

409 Ante, §§ 350, 351.

410 Rex v. Lara, 2 Leach, C. C. 652, 2 East, P. C. 819, 6 Term R. 565; State v. Renick, 33 Or. 584, 56 Pac. 275.

411 See 3 Chit. Crim. Law, 996, Mikell's Cas. 845.