port a conviction.' But where the indictment charges the conversion of a sum of money comprising green backs, national bank notes, and gold and silver certificates, proof that the money collected and converted was either of the four kinds is sufficient. And on the trial of a county treasurer for embezzlement, although the indictment alleges that defendant converted to his use certain public money by expending it for his private business, and by permitting others to so use it, it is unnecessary to show that the money was disposed of in the precise manner alleged.' Upon trial of an indictment under N. Y. Acts 1875, ch. 19, for peculation and embezzlement of public moneys or property, in the absence of evidence as to the amount of loss, or of request to direct a special finding in respect to such loss, a general verdict of guilty, unaccompanied with such a finding, is proper; the value of the property converted is not an element of the crime, and the provision that the jury "may find and state with their verdict the amount of loss" is not mandatory.* I Watson v. State, 64 Ga. 61. Defendant was indicted for larceny after trust, in wrongfully and fraudulently converting forty-five cents out of a sum of ninety-five cents intrusted to him for the purpose of making change and returning said money. Held, that proof that the money converted was not the change, but a portion of the money intrusted for that purpose, was not a fatal variance.-Crofton v. State, 79 Ga. 584. 2 Wallis v. State, (Ark.) 16 S. W. Rep 821. CHAPTER XLIII. INSTRUCTIONS; VERDICT; PUNISHMENT. § 395. Instructions to the jury. 396. Verdict, and its effect. 397. Punishment; fine; imprisonment. § 395. Instructions to the jury. On a trial under Mansf. Dig. Ark. § 1640, providing that, if any carrier or other bailee shall embezzle or convert to his own use any money, etc., which shall have come into his possession or been placed in his care, he shall be deemed guilty of larceny, although he shall not break, etc., an instruction that, if defendant converted the money, the jury would be authorized to infer the criminal intent, is proper.' Where it was shown that defendant had admitted having taken his employer's money at different times, an instruction that this confession should not be considered, unless it had reference to specific matters charged in the indictment, was sufficiently favorable to defendant.' An instruction that defendant, a State treasurer, is guilty of embezzlement if he "willfully and fraudulently disbursed or otherwise made way with the money of the State that came into his hands, save in payment of warrants lawfully drawn on the treasury," is not misleading on the ground that it authorizes a conviction if the default was produced by defendant's paying out money on warrants not lawfully drawn, even though such payments were made in good faith.' And it is not error to instruct that, in such a case, the State is not bound to prove any acts of concealment in connection with the public money; but that if, on final settlement, there is shown to be money due from defendant to the State which he has failed to disburse according to law, or to pay over to his successor, then the burden is on defendant to 1 Dotson v. State, 51 Ark. 119. 2 Com. v. Sawtelle, 141 Mass. 140. 3 Hemingway v. State, (Miss.) 8 So. Rep. 317. explain such failure, and he is guilty of embezzlement if the evidence fails to furnish a reasonable explanation, or to raise a reasonable doubt, of his guilt.' So also, a conviction for embezzlement will not be set aside because the court in its instructions referred to the intent to deprive the owner, etc., "of the use thereof absolutely," instead of the intent to deprive such owner "of his ownership therein.” 2 And an instruction, on a trial for embezzling public money, that, if the jury find from the evidence that the defendant unlawfully, fraudulently, and feloniously converted to his own use money he had collected by virtue of his official position, they should find him guilty, is not erroneous, as ignoring the criminal intent.' When there is clear evidence that the prisoner was the agent of the prosecuting witness, as charged in the indictment, there is no error in a charge that if the latter told defendant to get certain articles and send them to him, and defendant so received said articles into his possession, agreeing so to send them, then defendant was such agent. And in view of the character of the goods embezzled,-second-hand clothing, the court correctly charged that, in arriving at their value, the jury should be governed by what, if anything, they believed from the evidence was their fair and reasonable value at the time and place they were embezzled.* 1 Id. 2 State v. Pratt, 98 Mo. 482. State v. Manley, (Mo. Sup.) 17 S. W. Rep. 800. Cooksie v. State, 26 Tex. App. 72. On a trial for embezzling the funds of a national bank, the jury asked to be discharged because of inability to agree. The court had stated in its general charge that the jury were the sole judges of the facts, but now denied their request, saying that he deemed the evidence so convincing that he could not understand their difficulty in reaching an agreement. Held, that this statement was proper, as the Federal judges are entitled to express an opinion on the facts.-Simmons v. U. S., 12 Sup. Ct. Rep. 171. On an indictment containing counts charging both embezzlement and larceny of a horse, the court instructed the jury, if they found defendant guilty, they must show under which count, and fix the term of imprisonment, which could not be less than three nor more than twenty years, which was the penalty for larceny, the minimum for embezzlement being lower. Held, no error, where it appears that the jury found defendant guilty under a common-law count for larceny, and fixed a term of imprisonment longer than the minimum for larceny. Quinn v. People, 123 Ill. 333. On the trial of an indictment for 2 On the other hand, the rule is established in California, that where a legal presumption does not exist, it is error to instruct the jury that one fact should be inferred from anothor. So held, as to an instruction that one's failure to pay over public money, if inexcusable, raised a presumption of felonious appropriation which would authorize a verdict of guilty.' An instruction, on the trial of a county treasurer for embezzling public funds in the county treasury, that when it has been proved that the funds reached the hands of the officer, and that the same were not forthcoming when demanded, the law presumes the illegal conversion of such funds, and the burden of proving the contrary is on the officer, is erroneous, for the reason that it usurps the province of the jury, who are to determine from the facts whether or not the accused converted the funds to his own use." A charge that the evidence showed embezzling a mortgage, the following instruction was held proper: That to make out the charge against the defendant, it must be proved that he feloniously and fraudulently converted to his own use the mortgage, and that it belonged to the complainant; that if the mortgage was a mere cheat on the complainant's part, and obtained by fraud, the defendant might lawfully take it into his possession wherever he could find it; but if it came into the complainant's hands upon a valuable consideration actually paid by him, though he was not entitled to the whole amount nominally due, and the defendant received it upon the trust that he was to give it to the complainant, and instead of doing so appropriated it to his own use, he might be found guilty.-Com. v. Concannon, 5 Allen 502. See U. S. v. Taintor, 11 Blatch. 374. Upon the trial of an indictment for embezzlement alleged to have been committed by the defendant in the capacity of servant and agent of the county, the proof showed that he held the position of county auditor, and that in addition to his salary as auditor he was allowed by the county court, and drew a salary as custodian of the funds embezzled. The defense was that these funds came into his hands as auditor, and the court instructed the jury that if they so found they should acquit. The court further instructed the jury as follows: "If he received them (the funds embezzled) whilst he actually held the dual official relation to the county of auditor and agent, or auditor and servant, and it was his duty to receive them, not as auditor, but as agent or servant, it is immaterial whether he received them as auditor or agent, or as auditor or servant, for the law will not in such case heed such a distinction." Held, that taking the instructions together, the latter instruction could not be understood as submitting to the jury the question whether it was the duty of the defendant to receive the money as auditor, or as agent or servant.-State v. Heath, 70 Mo. 565. 1 People v. Carrillo, 54 Cal. 63. 2 State v. Smith, 13 Kan. 274; State v. Graham, Id. 299. that defendant was not a bailee in the meaning of the statute defining embezzlement is a charge on the effect of the evidence and therefore properly refused.' And where the evidence shows that defendant was a county treasurer, and had collected large sums of money which he had neither accounted for nor paid over to his successor, and that there had been fraudulent vouchers and entries made in his books for which he was responsible, the refusal of the court to instruct that the evidence relied on by the State is wholly circumstantial, and that to justify a conviction on circumstantial evidence the proved circumstances must be absolutely inconsistent with any other hypothesis than that of defendant's guilt, is not error.' § 396. Verdict, and its effect.-In Alabama, a verdict finding defendant "guilty of embezzlement of a sum of money less than $25," without stating that the money was the property of the person named in the indictment, or that the offense was committed in the county in which the court sat, is insufficient, since a special verdict must affirm every material ingredient of the offense. In Georgia, on trial of an indictment for embezzlement, it is not error to send to the jury, at their request, while they are deliberating on the case, books and papers admitted during the course of the trial, though they contain entries not relevant to the issues, it not appearing that the jury disregarded the instruction of the court not to inspect any portions of the books other than those given in evidence. In Louisiana, under an indictment for embezzlement, there cannot be a conviction of a breach of trust." In Missouri, Rev. St. 1889, § 3947, which provides that, on trial of a person indicted for embezzlement, if the proof is of lar 1 Butler v. State, (Ala.) 9 So. Rep. 191. 2 State v. Cowan, 74 Iowa 53. A tax-collector was convicted of embezzlement. It did not clearly appear whether he used money collected as county taxes, or whether his deficit arose from his neglect of duty in making collections, and the charge of the trial court was obscure respecting the distinction. Held, that there should be a new trial.-Fuller v. State, 73 Ga. 408. 3 Huffman v. State, 89 Ala. 33. 4 Jackson v. State, 76 Ga 551. 5 State v. Reonnals, 14 La. An. 278. |