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receiving property, knowing the same to be stolen. u Thus, where an indictment charged that A., " on the 26th of May, in the year eighteen hundred and thirty-six, in the county of Blount aforesaid, two sides of upper sole leather, of the value of five dollars, of the goods and chattels of one Matthew H. Boyle, then, lately before, feloniously stolen, taken, and carried away, feloni

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. ously and fraudulently did then and there receive and have, he the said A. then and there knowing the said goods and chattels to have been feloniously stolen and carried away, with intent to deprive the true owner thereof;” it was held, that the offence was described with sufficient certainty, and that it was unnecessary to expressly aver who was the principal felon, nor from whose possession the goods were stolen. v When, however, the principal felon is named, a variance is fatal. w But it is not fatal to the averment of “unknown” that the grand jury have found an indictment against a named person for stealing the same goods. 2

(6.) Not necessary to aver conviction of thief. — It is not essential, in any case, to aver that the principal felon or thief has been convicted. y

(c.) Intent. - In Tennessee, an indictment for receiving stolen goods must charge the defendant with receiving them with intent to deprive the true owner thereof. z

§ 1900. (d.) Scienter necessary. - It is fatal to omit the scienter. A count for receiving stolen goods alleged that the prisoner received the goods of A. B., “he, the said A. B., then knowing them to have been stolen.” After a verdict of guilty, the counsel moved in arrest of judgment, on the ground that the scienter was omitted. It was held that the count was bad. a

(e.) The time and place when and where the goods were stolen need not be stated in the indictment. 6

u Swaggerty v. State, 9 Yerger, 338; y Com. v. King, 9 Cushing, 284 ; R. State v. Coppenburg, 2 Strobh. 273 ; v. Woolford, 1 Mood. & Rob. 384. R. v. Jervis, 6 C. & P. 156; Com. v. z Hurell v. State, 5 Humphreys, 68. King, 9 Cushing, 284.

a R. v. Larkin, 26 Eng. Law & Eq. v Swaggerty v. State, 9 Yerger, 338. 572; Dears. 365; 6 Cox, 377. As to See State v. Hazard, 2 R. I. 474. averring scienter, see Huggins v. State,

u Com. v. King, 9 Cushing, 284; 41 Ala. 393. Ante, $ 297. R. r. Woolford, 1 Mood. & Rob. 384; 6 State v. Holford, 2 Blackford, 103; though see State v. Coppenburg, 2 State v. Murphy, 6 Ala. 845; 1 Leach, Strobh. 273.

109, 477. Com. v. Hill, 11 Cush. 137.

a

An indictment, which avers that the defendant received on a specified day goods “ before then” stolen, may be sustained by proof of his receiving after the theft goods stolen on a later day.c (f.) Take" and "

carry away.In Massachusetts, when it is charged that the goods were “ feloniously stolen,” it is not necessary to add the words “taken and carried away.” d But merely “carry ” without being followed by “away” is defective.e

$ 1901. (9.) Describing goods. - The indictment should describe the goods with accuracy, and a variance in this particular will be fatal. f If, however, as in larceny, the crime be established in respect to only a single article, though the indictment describe several, the defendant may be convicted. Thus where, on the trial of an indictment which misdescribed a part of the goods, but contained a sufficient description of the residue, the jury were instructed by the court below that there was no misdescription whatever, and a general verdict of guilty was rendered; it was held on review that the erroneous construction constituted no ground for a new trial, inasmuch as it appeared by the bill of exceptions that the question of the defendant's guilt was identical in respect to the whole of the goods, he having received them, if at all, from the same person by a single act.g

It is not necessary to allege that the goods were received upon any consideration passing between the thief and the receiver. h

(h.) Feloniouslyor fraudulently.” — The reception must be averred to have been felonious or fraudulent. i

$ 1902. (i.) Value. - The rule as to value laid down as to larceny applies equally to receiving stolen goods. j It may here be specially recalled that no judgment can be pronounced in either offence except for specific articles as charged in indictment.

Where an indictment charges a defendant with receiving various articles of stolen property, knowing them to be stolen, and specifically describes each article, and avers the value thereof,

c Com. v. Campbell, 103 Mass. 436 the designation of written instruments, (Gray, J., 1869).

ante, $ 314, 349. d Com. v. Lakeman, 5 Gray (Mass.), g Ibid. Ante, $ 361, 565.

h People v. Hopkins, 12 Wendell, e Com. v. Adams, 7 Gray (Mass.), 76.

i People v. Johnson, i Parker C. C. f People v. Wiley, 3 Hill N. Y. R. 564. 194. How goods are to be set out, į See ante, § 1837; and see also see ante, $ 353-63, 610–15; and as to State v. Watson, 3 R. I. 114.

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and he pleads that he is “guilty of receiving fifty dollars' worth of said property, in manner and form as set forth in the indictment,” no valid judgment can be rendered against him on such plea. k

(j.) Counts may vary with ownership. — This practice is usual. An indictment for breaking into the house of A. contained five counts, laying the property stolen in five different persons, A., B., C., D., and E. It also contained five other counts under the stat. 11 & 12 Vict. c. 46, for receiving the goods mentioned in each of the first five counts respectively, laying the property as in them; this was held to be correct, and it was said that there may be as many counts on this statute for receiving as there are counts for stealing, and that the prosecutor ought not to be put to elect. 1

$ 1903. (k.) Concealing. - In Massachusetts, when a defendant is convicted on an indictment which charges him with receiving and aiding in the concealment of stolen goods, he is convicted of only one offence, and if the indictment properly charges the defendant with aiding in the concealment of the goods, he may be legally sentenced, although the charge of receiving the goods is insufficiently made. m

(1.) Joinder of larceny and receiving. Larceny and receiving stolen goods may always be joined. n

A count for receiving may be tacked to one for stealing, so às to be dependent on the latter for its sense, and yet to stand independently in case of an acquittal on the stealing. This is the uniform practice in Pennsylvania. In England this practice was sustained on an indictment in which the first count charged the prisoner with larceny, on which the jury found a verdict of not guilty ; in a subsequent count, the prisoner was charged with having received the article, “ so as aforesaid feloniously stolen,” on which the jury found a verdict of guilty. It was held, that there was no repugnancy ; for that, although the word " aforesaid " in a subsequent count virtually incorporates all the necessary averments as to time and place in that count, the words “ so as aforesaid feloniously stolen ” did not necessarily mean that the article had been stolen by the person named in the first count, but only that it had before then been feloniously stolen by some person. O

k O'Connell v. Com. 7 Metcalf, 460. m Stevens v. Com. 6 Met. 241.

I R. v. Beeton, 2 Car. & Kir. 960; n Ante, $ 419. S. C. 1 Den. C. C. 414. See ante, $ 422.

A thief and a receiver of stolen goods may be jointly indicted. P

(m.) Receiving simultaneously articles of different owners. — A conviction and sentence for having received the goods of A. B., knowing them to be stolen, is no bar to a further indictment for having received the goods of C. D., at the same time and place, knowing them to have been stolen, though the act of receiving were one and the same. Yet the prosecution, it would seem, can waive this, and include such double receiving in one count. I

o R. r. Craddock, 2 Denison C. C. 9 Com. v. Andrews, 2 Mass. 409. 31 ; Temple & Mew C. C. 361; 1 See ante, $ 361-5, and particularly Eng. Law & Eq. 563.

ante, § 1817. p Com. v. Adams, 7 Gray (Mass.), p State v. Nelson, 29 Me. 329.

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CHAPTER VII.

EMBEZZLEMENT.

[The statutes contained in former editions under this head are here, for purposes of condensation, omitted. They will be found in the sixth edition, between $ 1905 and § 1934; and the decisions on them, and on subsequent statutes, are incorporated in the following pages.]

1. AGAINST SERVANTS ET AL. APPROPRIA- (h.) Servant receiving from another serTING GOODS NOT YET ARRIVED TO

vant, § 1928. THEIR MASTER, § 1905.

(i.) Goods must be received on account of (a.) Object of statutes, $ 1905.

master, $ 1928. (6.) Who are servants, $ 1906.

( : ) Who may be prosecutor, $ 1930. Employment need not be permanent, Whose goods are the subject of em§ 1907.

bezzlement, $ 1930. Servants employed to change notes Middleman or agent between chief or sell goods, $ 1908.

employer and servant, $ 1931. Compensation requisite to constitute Corporations, $ 1932. service, $ 1909.

(k.) Defence, $ 1933. Members of societies and partners No defence that defendant fraudunot servants within statute, $ 1910.

lently deposited a worthless secuDiscretion in handling and reinvest

rity in place of money embezzled, ing not inconsistent with character

§ 1933. of servant, $ 1911.

Conversion of produce enough, § Servant, yet not servant of prosecu

1934. tor, $ 1912.

When principal has no right to Summary as to who are and who are

money, $ 1935. not servants, $ 1913.

Trap set by prosecutor, $ 1936. Middleman not a servant, $ 1915. (l.) Jurisdiction, $ 1937. (c.) Clerks, $ 1916.

Concurrent jurisdiction, $ 1938. (d.) Agents, $ 1917.

(m2.) When two or more articles are em(e.) Goods must bave been received bø bezzled at the same time, $ 1939.

servant by virtue of his employment, (11.) Indictment, $ 1940. $ 1919.

Fiduciary relation of defendant, $
But not necessary that the thing em-

1940.
bezzled should have been received Goods and ownerships, $ 1941.
by defendant in conformity with “Feloniously," § 1942.
the defendant's express directions,

Servant of two or more masters, s § 1920.

1943. Under payments, $ 1923.

Joinder of counts, $ 1944. (f.) If case is larceny at common law (0.) Bill of particulars, $ 1945.

from the fact that the money was 2. AGAINST TRUSTEES, BAILEES taken from the prosecutor's posses- APPROPRIATING GOODS THEY RECEIVED

sion, the prosecution fails, $ 1924. BONA FIDE, S 1946. (9.) Proof of fraud, $ 1927.

(a.) Object of statutes, $ 1946.

ET AL.

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