1 the administrator of finance of the city of New Orleans, who converts public money to his own use, is liable to indictment under acts 1871, No. 42, providing for the punishment of "any officer or other person charged with the collection, receipt, safe-keeping, etc., of public money, who shall convert it to his own use." In Maryland, Code Pub. Gen. Laws, art. 27, § 80, providing that "any person holding office in this State, whether elected, or appointed by the governor, the corporate authorities of Baltimore, or by any other authority legally authorized to make such appointments, who shall fraudulently embezzle money * * * * * * which to the treasurer of the he is bound to account for * * * State, or to any other person by law authorized to receive the same, shall be guilty of a misdemeanor," does not apply to an embezzlement by the clerk of the board of county commissioners, who is in no sense a public officer. ment is within Code Pub. Gen. Laws, art. provides that "whosoever, being person or body corporate, bezzle any money, * * * * * * * Such embezzle27, § 75, which a clerk to any shall fraudulently em * shall be deemed to have feloni ously stolen the same," since by article 25, § 1, the county commissioners are declared to be a corporation.' In New York, under Laws 1875, ch. 19, "to provide more effectually for the punishment of peculations and other wrongs affecting public moneys and rights of property," the treasurer of a city was indicted for obtaining, receiving, and converting bonds to his own use. It appeared that he received for sale, in accordance with the usual custom, negotiable bonds of the city; that he directed a broker to sell them, and credit the proceeds upon a private debt, and that he made no entry of the sale in the treasurer's books. It was held that the transaction was a conversion sufficient to sustain a conviction, although the bonds might not have been wrongfully received; that the bonds were property within the meaning of the act; and that it was immaterial that the fiduciary character of the defendant 1 State v. Exnicios, 33 La. An. 253. 2 State v. Denton, 22 Atl. Rep. 305. was not averred, so long as it was proved.' In Ohio, a county auditor is not an officer charged with the custody of moneys belonging to the State, within the meaning of the act of April 15, 1858 (Swan & C., 1606), defining and punishing embezzlement. In Tennessee, the failure or refusal of a county trustee to pay over money in his hands belonging to the county is, unexplained, evidence of a conversion of the money to his own use; and if proved, will establish the allegation in the indictment that the defendant did embezzle and convert the * * money to his own use. The defendant may introduce evidence relieving his refusal of its felonious intent.' In Texas, a deputy sheriff is an officer within the meaning of the law punishing the embezzlement of public money. In Wisconsin, under Rev. St. § 4418, making it embezzlement for an officer or agent of a city, by virtue of his office or employment, to convert, etc., "any money or fund or property or thing which is the subject of larceny," unissued negotiable bonds in the custody of the city comptroller are within the statute, even though the city might not be liable on them; and such comptroller, ex officio secretary of the commissioners of the public debt, in whose custody the bonds were, had possession of them as an officer or agent of the city and by virtue of his office or employment." $379. Embezzlement by de facto officers.-An officer de facto is punishable for malfeasance in office, the same as an officer de jure; and it is no defense, where defendant is de facto, an officer, that he failed to take the oath of office." § 380. What may be embezzled, generally.-In California, shares of stock constitute property, and are therefore the subject of embezzlement. And moneys collected as wharfage 1 Bork v. People, 91 N. Y. 5. 3 State v. Leonard, 6 Coldw. 307. 4 State v. Brooks, 42 Tex. 63. 5 State v. White, 66 Wis. 343. • State v. Goss. 69 Me. 22; Fortenberry v. State, 56 Miss. 286. and tolls become the property of the State as soon as collected, and are capable of being embezzled before being paid into the State treasury.' In Iowa, under the statute (§ 4237), a bond, bank note, bill of exchange, or other bill, order or certificate, may be the subject of larceny or embezzlement. Therefore, where the private secretary of the governor, who had the custody of a United States treasury draft, drawn in favor of the State and payable to the order of the governor, feloniously converted it to his own use, it was held that he was guilty of embezzlement, although the governor had not indorsed the draft, and the amount could not be recovered from the government.' But one who had converted to his own use wheat which had been stored with him, was held not to be liable for embezzlement under the Code of 1873, § 3910; the term therein, "property which may be the subject of larceny," being used generically.' In Kansas, under Comp. L. 1879, ch. 31, § 90, one may be indicted for the embezzlement of a gelding, entrusted to him as a bailee. All classes of personal property are embraced within the provisions of the statute.* In Massachusetts, liquors kept for sale in violation of law may be the subject of larceny, and the proceeds of their illegal sale, the subject of embezzlement. In New Hampshire, money drawn as a prize in a lottery may be the subject of embezzlement. In Texas, the definition of embezzlement in Pasc. Dig. art. 2421, does not apply to the proceeds of trust property other than such as have accrued from a sale of it." § 381. Embezzlement from the mail-(a) Under early statutes.-The act of Congress (of March 3, 1825, 4 U. S. Stat. at Large 108), making it an offense to open, secrete, embezzle or destroy a letter before it is delivered to the person to whom it is directed, does not apply where the letter is 1 People v. Gray, 66 Cal. 271. not obtained wrongfully from the postoffice or from a mail carrier.' (b) Under R. S. §§ 3891, 3892.-It is only where letters containing nothing of value are embezzled that the offense is cognizable under § 3891, providing that any person employed in the postal service who shall secrete, embezzle, or destroy any such letter, although it does not contain any security or other thing of value, shall be punishable, etc., as 17 St. at L., 66 146, on which the above section is founded, in place of "although it does not contain any security," etc., reads, "which shall not contain any security," etc. A letter with a fictitious address, which cannot therefore be delivered, is not intended to be conveyed by mail," within the meaning of § 3891, providing a penalty for embezzling such a letter.' The act was designed to protect letters sent by mail from embezzlement, and from interference, with the improper designs therein enumerated, until they reached their destination by actual delivery to the person entitled to receive them. Therefore, where a letter carrier left a letter in the hall of the residence of the person to whom it was addressed, and the defendant opened it with intent to pry into the business and secrets of the owner of the letter, it was held to be a violation of section 3892, and that the protection of a letter so situated is within the constitutional power of congress.* (c) Under R. S. § 5467.-Two classes of offenses--one for embezzling letters containing articles of value, the other for stealing the contents are created by § 5467, providing that any person employed in the postal service who shall secrete, embezzle, or destroy any letter intrusted to him, or which shall come into his possession, and which was intended to be conveyed by mail, and which shall contain any note, bond, draft, or any other article of value; or who shall steal, or take any of such things out of any letter which shall have come into his possession, "and provided the same shall not have been delivered to the party to whom it is directed, shall be punishable by imprisonment at hard labor for not less than one year nor more than five years,' as is seen by resort to 17 St. at L., p. 318, § 279, for which the above section is a substitute, and which, after the words "to whom it is directed," reads "every such person shall, on conviction thereof, for every such offense, be imprisoned at hard labor not less than one nor more than five years." A semicolon should be substituted for the comma after the word "directed.''1 The offense of embezzling a letter in postal custody is not an infamous crime, and therefore may be prosecuted by information, not necessarily by indictment. It is no defense to an indictment of a postoffice employe for embezzlement that the letter embezzled was a "decoy," addressed to a fictitious person or place, and was never intended to be delivered, nor that it was made up so as to attract attention, and indicate that it contained money. For the sufficiency of the indictment in such cases, see the cases cited in the note.* 3 1 U. S. v. Lacher, 134 U. S. 624. See also U. S. v. Pelletreau, 14 Blatchf. 126; U. S. v. Hamilton, 11 Biss. 85; U. S. v. Baugh, 1 Fed. Rep., 784; U. S. v. Long, 10 Fed. Rep. 879; U. S. v. Gruver, 35 Fed. Rep. 59; U. S. v. Matthews, 35 Fed. Rep. 890; U. S. v. Taylor, 37 Fed. Rep. 200; U. S. v. Wight, 38 Fed. Rep. 106; U. S. v. Hartley, 42 Fed. Rep. 835; U. S. v. Taylor, 1 Hughes, 514; U. S. v. Baugh, 4 Hughes, 501; U. S. v Long, 4 Woods 454; U. S. v. Hanna, 4 N. Mex. 216; U. S. v. Fuller, 4 N. Mex. 358; U. S. v. Rapp, 30 Fed. Rep. 818; Walster v. U. S., 42 Fed. Rep. 891; U. S. v. Hamilton, 9 Fed. Rep. 442. 2 U. S. v. Baugh, 4 Hughes 501; U. S. v. Wynn, 3 McCrary 266. U. S. v. Wight, 38 Fed. Rep. 106; U. S. v. Dorsey, 40 Fed. Rep. 752; U. S. v. Whittier, 5 Dill. 35; U. S. v. Bethea, 44 Fed. Rep. 802. U. S. v. Norton, 91 U. S. 566; Wight v. Nicholson, 134 U. S. 136; U. S. v. Winter, 13 Blatchf, 333; U. S. v. Jeuther, 13 Blatchf. 335; U. S. v. Laws, 2 Low. 115; U. S. v. Eliason, 7 Mackey 104; U. S v. Atkinson, 34 Fed. Rep. 316; U. S. v. Hartley, 42 Fed. Rep. 835; Walster v. U. S., 42 Fed. Rep. 891; U. S. v. Byrne, 44 Fed. Rep. 188. |