bailee.' And where a miller having received barilla to grind, fraudulently kept part of it, returning a mixture of barilla and plaster of paris, it was held to be larceny.'

§ 35. Larceny by agent, servant or clerk.—(a) Agent. An agent who, by virtue of his agency, procures money to be entrusted to him, by fraud, and before or at the time of getting it, conceives the purpose of appropriating it, is guilty of larceny at common law; and a statute providing that agents, etc., intrusted with money for specific purposes, who embezzle or fraudulently convert it, or take or secrete with intent to embezzle and fraudulently convert it, shall be deemed guilty of larceny, embraces the case of such an agent. It makes no difference that the offense is also larceny at common law. Thus, a priest who receives money for a church, and appropriates it to his own use, may be indicted as an agent.*

1 Commonwealth v. Maher, 11 Phila. 425.

2 Com v. James, 1 Pick. 375.

3 State v. Taberner, 14 R. I. 272; 51 Am. Rep. 382.

4 Gerdermann v. Commonwealth, 11 Phila. 374. A broker who had been accustomed to buy silver on account of a bank was instructed by the bank to make a certain purchase of silver on its account, and as he had no funds, the bank certified his check drawn on the bank, and delivered it to him. He did not buy the silver, but used the check for his own purposes. Held, that if he received the check with the intention of so appropriating it, he was guilty of larceny.-People v. Abbott, 53 Cal. 284; 31 Am. Rep. 59. Defendant employed to collect rents was entitled to fixed commissions. It was his practice to pay by check rents collected each month, after deducting commissions and expenses. He collected a certain sum from a tenant and deposited it in bank in his name as trustee. This sum he never accounted for. Held, that, under N. Y. Penal Code, § 528, he was guilty of grand larceny. [Brady, J., dissenting.]—People v. Civille, 44 Hun 497. The general manager of an elevator company, having the management of the company's grain elevators, and the complete control of the grain therein, with power to cause it to be transferred from one elevator to another, has the grain in his "possession, custody, or control" as the agent or officer of the company, within the meaning of Pen. Code, § 528, which declares that any person who, having property in his possession, custody, or control as the agent or officer of any person or corporation, appropriates the same to his own use, or that of any person other than the owner, with intent to deprive and defraud the owner, is guilty of larceny.-People v. Sherman, 16 N. Y. Supp. 782. Under Vt. Rev. Laws, § 3616, providing that if an insurance agent appropriates money received by him as such agent, and neglects to pay it over thirty days after notice, he shall be guilty of larceny,

And an attorney who, by falsely representing to his client that a suit is in certain stages of progress, obtains money, is guilty of larceny by obtaining money on false pretenses both under the New York Code and on general principles.'

(b) Servant.-One who has the bare custody of property, as the employe or servant of the owner, is guilty of larceny, if he fraudulently appropriates such property to his own use, for the possession is deemed to be in his master. It makes no difference that at the time of receiving the property the felonious intention did not exist in his mind; and an offer by the servant to sell the property will be sufficient proof of the conversion. Thus, a servant who has the care of horses in a livery stable, does not have such custody of them as to pre

a person may be guilty without felonious intent.-State v. Hopkins, 56 Vt. 250. The unlawful appropriation of money by an agent or employe, not authorized to receive it, is not within the provisions of Iowa Code, § 3909, making such an offense punishable as larceny, although the party paying it to the agent or employe supposes him to be authorized to receive it.-State v. Johnson, 49 Iowa 141. When the conversion of goods by an agent employed to sell them will be deemed to be larceny, under the Wisconsin statutes, see State v. Leicham, 41 Wis. 565.

1 People v. Reavy, 38 Hun 418; s. c. 39 Hun 364. Defendant, employed as attorney to ascertain the price of certain land, was told by the owner it was $125. He told his client it was $325. The client assented and handed defendant $325, and defendant appropriated the difference. Held, larceny, the title to the money not having passed from the client.-Com. v. Lannan, 26 N. E. Rep. 858. Trust money having been invested on mortgage, the mortgage was paid off, and the money left in the hands of the family solicitor, who wrote to the beneficiary asking for instructions as to investment. The beneficiary replied that he would let the solicitor know. It was proved that about this time the money had been fraudulently appropriated by the solicitor to his own use. Held, that this was a fraudulent conversion within § 76 of the larceny act.-Regina v. Fullagar, 41 L. T. 448.

* Crocheron v. State, 86 Ala. 64; Powell v. State, 34 Ark. 693.

* People v. Call, 1 Denio 120; 43 Am. Dec. 655; Com. v. Berry, 99 Mass. 428; State v. Jarvis, 63 N. C. 556.

* State v. Schingen, 20 Wis. 74. We must take it as settled that it is not larceny for a servant to convert property delivered to him by a third person for his master, provided he does so before the goods have reached their destination, or something more has happened to reduce him to a mere custodian, (Com. v. King, 9 Cush. 284); while on the other hand, if the property is delivered to the servant by his master, the conversion is larceny, (Com. v. Berry, 99 Mass. 428; Com. v. Davis, 104 Mass. 548). This distinction is not very satisfactory, but it is due to historical accidents in the development of the criminal law, coupled, perhaps, with an unwilling

And a

vent his conviction of larceny in taking them away.1 stage-driver is a servant within the meaning of the act punishing as felonious stealing the embezzlement of property received by virtue of employment as a servant."

(c) Clerk. Where a clerk who has possession of goods in a store, and is salesman and general manager of the store, abstracts a part of the goods with a fraudulent intent to convert the same to his own use, he is guilty of larceny." So, where goods are feloniously taken from the owner's shop by their clerk and packer, who was not a salesman, though he had occasionally sold when the regular salesmen were absent or busy, an entry being effected by keys which he had, it was larceny and not embezzlement.* And where, although the teller of a bank was intrusted with its funds while engaged in transacting its business, yet at night they were withdrawn from him and placed in such custody that he could not lawfully resume possession until the return of business hours and the concurrence of the cashier, it was held, that in wrongfully abstracting the funds at night, and converting them to

ness on the part of the judges to enlarge the limits of a capital offense. Bazeley's Case, 2 Leach, 843, 848, note; Id. 35, note; 2 East, P. C. 568, 571. There was no felony when a man received possession of goods from the owner without violence. Glany. Elec. Cas. 13; Y. B. 13 Edw. IV. 9, pl. 5; 3 Co. Inst. 107. The early judges did not always distinguish clearly in their language between the delivery of possession to a bailee and the giving of custody to a servant, which, indeed, later judges sometimes have failed to do. Littleton in Y. B. 2 Edw. IV. 15, pl. 7; 13 Edw. IV. 10, pl. 5; 3 Hen. VII. 12, pl. 9; Ward v. Macauley, 4 Term R. 489, 490.

2

1 People v. Belden, 37 Cal. 51.

People v. Sherman, 10 Wend. 298; 25 Am. Dec. 563. One employed on wages to assist in ginning cotton, and who, because he fired the engine, carried the keys of the gin-house, stole cotton from the gin-house. Held, larceny from the house, and not larceny after trust, he not being a bailee of the cotton.-Wall v. State, 75 Ga. 474.

3 Walker's Case, 8 Leigh, 743: Marcus v. State, 26 Ind. 101; State v. White, 2 Tyler 352.

4 Com. v. Davis, 104 Mass. 548. In Texas, where a clerk left in charge of a store at night carried away from the store money and goods, and the next day was arrested while leaving the country, at some distance from the store, with the property in his possession, it was held that he was properly convicted of larceny under the statute (Pasch. Dig. Art. 2421), which provides that if a clerk shall embezzle, or misapply, or convert to his own use, without the consent of his principal, any money or other property of such principal or

his own use, he was guilty of larceny and not embezzlement.' But when an employe appropriates to his own use money intrusted to him for safe keeping by his employer, it not being part of his regular duty to take charge of his employer's money, this is not larceny." A statute providing that "any person committing a breach of trust with a fraudulent intent shall be held guilty of larceny," applies not only to cases not reached by the common law, but also to cases where, at the common law, fraudulent appropriation constituted larceny; e. g. by a clerk, of money technically in his employer's possession.❜ But unlawful appropriation of money by an employe erroneously supposed by the one paying it to be authorized to receive it, is not, within Iowa Code, § 3909, punishable as larceny."

§ 36. Larceny by co-tenant, lessee, cropper, etc.— Under an indictment for larceny a tenant in common cannot be convicted of the offense of having fraudulently converted to his own use the undivided interest of his co-tenant, although, under the provisions of the Ala. Code, § 4355, one guilty of such an offense is punishable as if he had stolen the propertyso converted. An indictment for larceny will not lie against

employer, which shall have come into his possession or under his control by virtue of his employment, he shall be punished as for theft.—Cobletz v. State, 36 Tex. 353. Where a clerk of the State treasurer who had the custody of the State securities, and whose duty it was to deposit them in a bank, feloniously appropriated to his own use a draft which came into his hands as such clerk, it was held larceny. -Phelps v. People, 13 N. Y. Supreme 401.

1 Com. v. Barry, 116 Mass. 1.

* State v. Fann, 65 N. C. 317. & State v. Shirer, 20 S. C. 392.

4 State v. Johnson, 49 Iowa 141.

Holcombe v. State, 69 Ala. 218, see also infra § 48. Where A. agreed to get stone from the land of another, upon a contract to have half for getting them, it was held that while they remained on the land undivided A. was neither a tenant in common with the owner of the land nor a bailee of them, and that therefore he, or any other person with his connivance, might be guilty of larceny in taking them.-State v. Jones, 2 Dev. & B. 544. A father and son rented land jointly, under an agreement with the landlord that they should have the first two bales of cotton. While the son was packing the second bale the landlord told him that he must have the bale, to which the son replied "all right." The bale was not weighed, no price.

a lessee or cropper for secretly appropriating the crop to his own use, even if done with a felonious intent, for the reason that under the statute he is in the actual possession of the same until a division is made;' otherwise, where his actual possession has terminated by a delivery to the landlord' When a tenant of lands lets another person have an interest in his contract, under an agreement between them to cultivate the land. and divide the crop equally, after paying the rent, and the latter ceases to work, and abandons the crop before maturity, giving as a reason that he did not think they could make anything, he is guilty of a breach of contract, and forfeits all interest in the crop, the entire property therein, when matured, vesting in the original tenant; and whatever may be his rights or remedy against the latter, he may be convicted of the subsequent larceny of a part of the growing or outstanding crop.'

37. Larceny by maker of note, bond, etc.- Inasmuch as the "taking" in larceny need not necessarily be secret and without the knowledge of the owner, but may be done openly, by deception, artifice, fraud, or force-where a bank officer called to collect a note of the maker who asked to be allowed to see the note, and, on its being handed to him, walked out of the room with it and secreted or destroyed it, the court properly charged that the intent to deprive the owner of his property and to gain some advantage to himself, constituted a felonious intent, and that, if defendant obtained possession of the note with a felonious intent, the act was theft.* In such a case the maker is deemed the servant or agent of the holder, and not a bailee, and the possession remains in the

was put upon it, and it remained at the public gin until the father and son took it away and sold it publicly and in the daytime. There was no evidence that the father knew that the landlord had demanded the second bale or of the son's agreement. Held, that the father not having joined in the agreement, and it having been merely executory, he could not be convicted of larceny.-Scales v. State, 85 Ga. 540.

1 State v. Copeland, 86 N. C. 691.

2 State v. Webb, 87 N. C. 558.

8 Bonham v. State, 65 Ala 456.

4 State v. Fenn, 41 Conn. 590.