tions, he was held entitled to have the prosecution elect as to which act of embezzlement they would claim a conviction;' so also in Indiana.' In Iowa, an indictment charging in a single count that defendant did, between certain dates, embezzle two pianos and seven organs, all being the property of K., and being a portion of a stock of such instruments intrusted to him for sale, is not bad for duplicity.' And an indictment for embezzlement which alleges that defendant unlawfully and feloniously embezzled and converted to his use certain public money in his hands as county treasurer, without authority of law, and that he converted the same by expending it for his private business, and by permitting others so to use it, is not bad for duplicity, the allegations as to the specific use of the money being surplusage. In Kansas, an information charging in one count an actual embezzlement, and also that defendant made way with the same property and secreted it with intent to embezzle and convert it to his own use, is not bad for duplicity as the charge of embezzlement included all that was material in the other charges. In Massachusetts, as in case of larceny, a person who embezzles several articles at one time may be indicted and convicted for the embezzlement of each article separately. In Missouri, Rev. St. 1889, § 3555, inflicts a penalty on any officer, etc., "who shall convert to his own use, * * * or shall make way with or secrete, any portion of the public moneys, or any moneys that may have come to him by virtue of his official position;" and an indictment charging that defendant "did unlawfully and feloniously make way with, secrete, and convert to his own use," etc., charges but a single offense, as the words used are not inconsistent with one another." In Nevada, an indictment for embezzlement containing two counts, each identical

1 Goodhue v. People, 94 Ill. 37. Griffith v. State, 36 Ind. 406.

3 State v. Pierce, 77 Iowa 245.

4 State v. King, 47 N. W. Rep. 775; distinguishing State v. Brandt, 41 Iowa 610.

5 State v.

Hodges, 26 Pac. Rep. 676; State v. Emmons, Id. 679. 6 Com. v. Butterick, 100 Mass. 1.

State v. Manley, 17 S. W. Rep. 800.

as to the time, place, names of persons, and description of property, charges but one offense.' In New York, it seems, the indictment may contain counts for both embezzlement and larceny; and the count for embezzlement may charge the embezzling of several different articles, some of them greater and some less than $25 in value.' In Oregon, an indictment under Crim. Code, 414, § 559, punishing any official who shall convert to his own use money of the State, etc., "" or "" neglect to pay over the same, is not invalidated by charging a conversion "and" a failure to pay over.' In Texas, the fact that defendant might have been convicted of the theft charged in the first count of the indictment, does not show that he might not also have been guilty as found of the embezzlement charged in the second count.*

1 State v. Malim, 14 Nev. 288.

'Coats v. People, 4 Parker 662. In Ohio, defendant embezzled at different times moneys to the amount of $12,000, belonging to his four wards. An indictment against him therefor, containing four counts, charged him with embezzling $3,000, the property of A.; $3,000, the property of B.; and so on as to C. and D., they being defendant's wards. Held, that but one offense was charged in the indictment, and that a motion to quash the same, as charging four several felonies, was properly overruled.— Myers v. State, 4 Ohio C. C. 570.

'State v. Dale, 8 Or. 229.

• Golden v. State, 22 Tex. App. 1.

CHAPTER XLII.

EVIDENCE; DEFENCES; VARIANCE.

§ 389. Evidence for the prosecution, generally.

390. Proof of delivery of property.

391. Proof of value.

392. Proof of other acts of embezzlement.

393. Matters of defense.

394. Variance.

§ 389. Evidence for the prosecution, generally-(a) Competency; best and secondary evidence.-Upon the trial of an alleged bailee for embezzlement of his bailor's property, it was competent for the State to prove the terms of the contract of bailment, by virtue of which the property went into the defendant's possession. So, on a trial for embezzlement alleged to have been committed by a servant or agent, the employer is a competent witness to show that he did not authorize the accused to do the acts complained of, and that the accused has not accounted to him for the property.' Evidence by an expert of the result of his examination of defendant's books and papers, which are in evidence, is competent to show the standing of the accounts. In one case

it is held that a mere failure to pay over to the employer, or to the government, is evidence of embezzlement. But the better opinion is that an unexplained failure of the accused to pay over the money which he is charged with having embezzled, does not of itself raise a presumption of a felonious appropriation sufficient to convict.

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

& Coats v. People, 4 Parker 662.

8 State v. Findley, (Mo.) 14 S. W. Rep. 185.

4 State v. Cameron, 3 Heisk. 78. Compare State v. Snell, 9 R. I. 112. State v. O'Kean, 35 La. An. 901. It appeared that the defendant, an agent, had authority to receive payment for goods sold by him, and was entitled to commissions upon such sales; that he received, in payment for such a sale, a check, which he deposited to his own credit, sending his check for the amount to his employer, which check was not paid. Held, that the check so sent by him was admissible in evidence, and that

If the indictment contains what purports to be a copy of an agreement made between the defendant and the prosecutor, a copy of the same is not admissible in evidence on the trial, without first accounting for the original, and without proof of the execution of the instrument by the defendant.' So, on a trial for embezzlement of money which defendant should have paid to the State treasurer, the testimony of the treasurer that the money was not paid to him being the best evidence, the testimony of the custodian of the treasurer's books that they failed to show the payment is inadmissible.' But the incorporation of the company employing the accused may be shown by parol.' And on trial of a county treasurer for embezzlement of certain public moneys in his hands, the introduction of the record of the board of supervisors to show the report of the treasurer, is without prejudice, where the report itself is afterwards introduced.*

(b) Relevancy and sufficiency.-To warrant the conviction. of an agent for the embezzlement of his principal's money, four facts must be established beyond a reasonable doubt, to-wit: First. The agency whereby the defendant was charged with the duty of receiving the money; Second. His receipt of his principal's money; Third. That he received it in the course of his employment; and Fourth. That he embezzled, misapplied or converted it to his own use.' A person cannot be convicted of embezzlement upon proof that he received money for the purpose of paying a note, and did not pay the same, unless it is further proved that being the agent of another, and having received the money as such, he failed to pay the same in consequence of some fraudulent use or conversion of the money. Where it appears that defendant lived in the county, and collected the money there, and it

evidence tending to show that his commissions were always paid by his employer, and that he had no authority to deduct them from the proceeds of sales, was also admissible.-Com. v. Smith, 129 Mass. 104.

1 People v. Hust, 49 Cal. 653.

? Strong v. State, 18 Tex. App. 19.

3 State v. Cheek, 63 Mo. 364.

4 State v. King, (Iowa) 47 N. W. Rep. 775.

Webb v. State, 8 Tex. App. 310.

State v. Snell, 9 R. I. 112.

was last seen in his custody therein, the jury may infer that the conversion occurred there. On a trial of a defendant for embezzling money received by him as county treasurer, the State need not prove the execution by him of the proper official bond. And his failure to pay the State auditor's draft for State money in his hands, as shown by his last settlement with the county auditor, is prima facie evidence of an embezzlement.' Where, on prosecution of a county collector for embezzlement, it is shown that defendant never made a settlement, and that his books, when taken from him by the sheriff, showed a deficit, which he attempted to account for by swearing that the money was destroyed when his house was burned, the evidence is sufficient to sustain a conviction. And when it is shown that defendant received the tax-books, and acted as collector, it is not necessary to produce his commission. The corporate existence of a company is sufficiently established by proving that it assumed to be and was notoriously acting as a corporation, to sustain an indictment charging a person with having been the clerk of a certain corporation, and with having fraudulently embezzled its property then under his care by virtue of his employment as such clerk. When demand would be ineffectual it is unnecessary to be proven to fix a criminal liability for embezzlement. Demand and refusal are prima facie evidence of embezzlement, but are not the only evidence of embezzlement permissible; and proof of such demand and refusal is not in all cases essential to conviction." Where defendant was indicted for embezzling the funds of a corporation of which he was treasurer, evidence that he was directed to pay a certain debt in full, before paying other claims, and that he disobeyed the direction, was irrelevant, and tended to prejudice the jury. And in a prosecution of defendant for embezzlement of funds

3

1 Wallis v. State, (Ark.) 16 S. W. Rep. 821.

2 State v. Mims, 26 Minn. 183.

State v. Findley, (Mo.) 14 S. W. Rep. 185.

Calkins v. State, 18 Ohio St. 366; 98 Am. Dec. 121.

5 U. S. v.

Adams, 2 Dak. T. 305; Wallis v. State, (Ark.) 16 S. W. Rep.

Thornell v. People, 11 Colo. 305.