§ 393. Matters of defense-(a) In general.-The unlawful expenditure, by a public officer, of public moneys entrusted to him as such, cannot be excused or justified by him, merely because he believed that their expenditure was necessary or proper-he is bound to know the law, and cannot escape responsibility for his acts when they are unlawful, by asserting his good faith.' So also it is no defense that the money was entrusted to defendant for an illegal purpose; or that he has not filed the certificate necessary in order to enable him legally to do business in the State, and that therefore his transaction of business and receipt of the money was unlawful.' To an indictment for embezzling cotton alleged to belong to a national bank, it is no defense that the law disables such banks from owning personal property or taking liens thereon. The question of ultra vires cannot be considered.' And one who has collected money under color of authority from an employer cannot defend a prosecution for embezzlement in not paying it over to him, on the ground that he was not authorized.* Where the agent of an express company, to whom money was intrusted to be delivered by him to consignees, stated that the money was stolen from him on the way, in the absence of any reasonable account given by him of the occurrence, he might be convicted of embezzlement. And declarations of one alleged in an indictment for embezzlement to be the owner of embezzled property are inadmissible to disprove his title on the trial of such indictment, though he was dead at the time such declarations were offered.' It is not error for the trial court to refuse instructions asked by defendant which particularly direct the jury's attention to evidence of defendant's previous good character, the absence of flight, the correctness of his books, and other like circumstances, as no presumption of law properly arises from any of such circumstances." When an 1 U. S. v. Adams, 2 Dak. T. 305.

agent is prosecuted for the embezzlement of his employer's money in a certain county wherein he had possession of the money and in which it was his duty to account to his employer upon demand being made, it is no defense to show that he had expended the money for his own use in another county.' The accused having collected two notes of over $1,000 each, and failed to account for the money, it is not error to refuse to charge on the theory that the money may have been collected and converted in sums of less than $20 at one time."

(b) Consent of owner.-While the express consent of the owner of the property to the use of it made by defendant would be a good defense, yet upon trial of one charged with embezzlement of property deposited with him for another purpose, by pledging it as security for his own debt, it is immaterial that the relations between the owner and the defendant were such that the latter had a right to presume that the owner would ratify such a use of his property, or that he would have consented to such a use of it if he had been asked at the time, or that at the time he deposited it with defendant he had no objection to such a use of it by him; and questions asked of the owner as a witness, to prove these facts, were properly excluded.' So, on the trial of an indictment, under the national banking act of 1864, June 3 (13 Stat. at L. 116), for embezzling, abstracting, and willfully misapplying the moneys and funds of a bank, of which defendant was cashier, with intent to injure and defraud the bank, the defendant cannot, in order to disprove the averment of intent, prove that his taking the funds of the bank

2 Taylor v. State, (Tex.) 16 S. W. Rep. 302. Where an information contained several counts, each charging the defendant with the embezzlement of the same moneys, at the same time, and from the same party, but differing in this respect, that one charged him as clerk, another as agent, another as servant, and so on,-held, that a special plea that the defendant had had no preliminary examination, as required by Kan. Crim. Code, § 69, except upon the charge of embezzling as clerk, and that therefore the prosecution should be limited to that count, was properly overruled.-State v. Spaulding, 24 Kan. 1; State v. Smith, 13 Kan. 274.

3 Com. v. Butterick, 100 Mass. 1; 97 Am. Dec. 65.

and using them in stock speculations were known to the president and some of the directors of the bank, and were sanctioned by them, and that his dealings therewith were intended for the account and benefit of the bank, and were believed by him to have been sanctioned by the president and some of the directors, although there was no resolution of the board of directors authorizing or sanctioning them.'

(c) Former jeopardy is also a good plea, and the fact that, in an indictment for embezzlement or larceny, the value of the property is alleged to be a sum exceeding the jurisdiction of the inferior court, does not prevent a plea of former acquittal therein from being a good bar thereto, if the value did not in fact exceed the sum named in the statute defining the jurisdiction." But a prosecution of a clerk for embezzlement is not barred by the fact that he was a witness for the Commonwealth in the prosecution of a fellow clerk of the same employer for larceny in the same shop. And when one, intrusted by A. with cotton for a particular purpose, obtains money thereon from B. by falsely representing himself as owner, and selling to him, he may be indicted as well for embezzling A.'s cotton as for obtaining B.'s money under false pretenses; and conviction of the latter offense will not sustain autrefois convict to the other.'

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(d) Statute of limitations. As against a prosecution for embezzlement by a public officer, the statute begins to run

1 U. S. v. Taintor, 11 Blatchf. 374. On trial for embezzlement of money intrusted to him by prosecutrix, defendant introduced evidence to prove that prosecutrix authorized him to use it, and he asked the court to instruct the jury to acquit him if they believed from the evidence that he was so authorized. Held, that the refusal of the instruction was error.-Henderson v. State, 1 Tex. App. 432.

2 Com. v. Bosworth, 113 Mass. 200.

3 Com. v. Woodside, 105 Mass. 594.

4 State v. Faulkner, 38 La. An. 811. On a trial for embezzlement, after evidence had been given for the prosecution, an affidavit was produced, alleging that a juror, on his voir dire, falsely swore that he had no acquaintance with the accused. Thereafter a letter commenting upon this affidavit was published in a newspaper, and was read by members of the jury. Held, that the court was warranted in dismissing the jury, and that a new trial was not barred on the ground of former jeopardy.-Simmons v. U. S., 12 Sup. Ct. Rep. 171.

from the time of his failure to pay over to his successor in office, and subsequent demands and refusals do not affect the case.' And the fact that one conceals his embezzlement does not prevent the bar of the statute from attaching, if an indictment is not brought within the time limited in cases of embezzlement.' But it is no defense, in an action against a guardian for embezzlement, that defendant was removed as guardian more than the period of limitation before the prosecution was commenced, when the order removing him was ex parte, and without notice, as it was absolutely void.' And an information for embezzlement, which charges that defendant, as guardian, collected certain moneys of his ward at a certain time, and that at a certain subsequent time the ward, having meanwhile become of age, demanded an accounting and payment, but that the guardian failed and refused to make payment, and converted the money to his own use, is sufficient where the last-mentioned date is within the period of limitation, though the first date is not.*

(e) Restoration of property; security.—The offer or intent of the accused to restore the money taken does not relieve the act of its criminal nature. Such fact is not ground of defense, but goes only towards mitigation of the punishment. Nor is it a defense that the defendant has given an indemnity bond for the amount of property coming into his hands as assignee.' When money is embezzled, the owner has a right to settle as for a debt upon an implied contract; and such settlement is no bar to a criminal prosecution. Nor is the receipt of the prosecuting witness for the amount alleged to have been embezzled, given subsequently to the indictment and arrest of the prisoner, admissible in evidence.'

1 State v. Mason, 108 Ind. 48.

2 State v. Nute, 63 N. H. 79.

3 Colvin v. State, (Ind.) 26 N. E. Rep, 888.

* Colvin v. State, (Ind.) 26 N. E. Rep. 888. State v. Pratt, 98 Mo. 482.

6 People v. De Lay, 80 Cal. 52.

7 Id.; State v. Walton, 62 Me. 106.

8 Fagman v. Knox, 66 N. Y. 526.

State v. Thompson, 32 La. An. 796.

§ 394. Variance. Unless the proof supports the allegation of ownership, there cannot be a conviction of embezzlement.' Therefore, where the indictment alleges that the defendant embezzled property which came to his possession as the agent of S., while the proof shows that the property was placed in his possession by one T., who was the bailee of S., to be delivered to S., the variance is fatal unless it is shown that S. ratified or recognized the appointment.'

An indictment charging one with embezzling money received from contributors, to be paid to an association, is not sustained by evidence of a specific trust to pay over the money to the treasurer thereof.' And where an indictment charges that the defendant was intrusted by the owner with certain melons, "for the purpose of applying the same to the sole use and benefit of the said owner," a verdict of guilty is not sustained by proof that the melons were delivered to the defendant for the purpose of selling the same and bringing the money to the owner, less what he charged for his services.*

In law, money means current metallic coins. Therefore, an indictment for embezzling money is not sustained by proof of embezzling greenbacks or national currency notes. So, where an indictment alleged that money fraudulently converted was lawful currency of the United States, proof that money, without more, was converted, is not sufficient to sup

1 Livingston v. State, 16 Tex. App. 652.

Washington v. State, 72 Ala. 272; McCrary v. State, 81 Ga. 334. An indictment alleging embezzlement of "public moneys belonging to the school fund of North township,"-held, sustained by proof of embezzlement of moneys belonging to the sub-districts of North township.-State v. Hays, 78 Mo. 600.

8 Com. v. O'Keefe, 121 Mass. 59.

Carter v. State, 53 Ga. 326. An indictment for embezzlement of diamonds charged that the diamonds were given to defendant to sell to a certain person. There was evidence tending to sustain this charge, but some of the evidence tended to show authority to sell to any one. Held, no variance.-State v. Foley, (Iowa) 46 N. W. Rep 746. A count in an indictment charged an officer of a national bank with having misapplied a certain sum by causing the said sum to be credited to A. The evidence showed a credit by a single entry of a much larger sum, of which the jury found that the sum stated in the count was a misapplication. Held, not a material variance. [Brown, J., dissenting.]-U. S. v. Fish, 24 Fed. Rep. 585. 5 Block v. State, 44 Tex. 620.