1. Against Servants et al. appropriating Goods not yet arrived to their Master. (a.) Object of Statutes. § 1905. IN the common law definition of larceny exist two gaps through which, in the expansion of business, many criminals escaped. The first of these gaps is caused by the position that to maintain larceny it is necessary that the stolen goods should have been at some time in the prosecutor's possession. a The second results from the assumption that when possession of goods is acquired bona fide by a bailee, no subsequent fraudulent conversion (unless there be breaking of bulk or some other rupture of the conditions of bailment) can be larceny while the bailment lasts. b To cure these defects were passed the embezzlement statutes of England and of most of the United States. These statutes were intended simply to establish two new cases of larceny. If a servant (and this is the first of the two) steals his master's goods before they have arrived into his master's possession, he, the servant, shall be. guilty of larceny. And the second is, that it shall be larceny ror a trustee or bailee to fraudulently convert to his own use his master's goods he may have bona fide received. Now, as neither of these cases are larceny at common law, the statutes of embezzlement in no way overlap the old domain of larceny. They were passed solely and exclusively to provide for cases which larceny at common law did not include. Hence nothing that is larceny at common law is larceny under the embezzlement statutes; and nothing that is larceny under the embezzlement statutes is larceny at a See ante, § 1830 a. b Ante, § 1852. common law. It is important to keep this in mind, as from missing this point, some confusion in construing the embezzlement statutes has been produced. c And by applying this test we will find that the embezzlement statutes fall into two distinct and widely different classes: first, those meeting the case of servants and clerks, appropriating their master's property before it reaches his possession; and secondly, those meeting the case of trustees and bailees, appropriating goods of which they obtained possession bona fide.c1 (b.) Who are Servants. § 1906. In those of the embezzlement statutes which were passed to meet the case of servants, or persons having a bare charge, appropriating their master's goods before such goods have reached him, the terms "servant," "clerk," and "agent," are used to designate those on whom this species of embezzlement may be charged. "Servant," in the English statute, is the first term used, and is that which is invested with the most general signification. Some of the decisions made in this connection will now be noticed. Thus, where § 1907. Employment need not be permanent. the prosecutor, having agreed to let the defendant carry out parcels when he had nothing else to do, for which the prosecutor was to pay him what he pleased, gave him an order to receive two pounds, which he received and embezzled, he was holden to be a servant within the meaning of the act. d So, also, a drover who was employed to drive two cows to a purchaser and receive e See more fully post, § 1924. c1 The statutes, it is true, do not always retain the distinctive features of the English statutes; and in many cases, the two classes of embezzlement are merged in one. Thus, the Kentucky statute provides that "if any carrier, porter, or other person, to whom money or other property or thing which may be the subject of larceny may be delivered to be carried for hire, or any other person, who may be intrusted with such property, embezzle, or fraudulently convert to his own use, or secrete, with intent to do so, any such property, either in mass, or otherwise, before delivery at the place, or to the person to whom the same were to be delivered, he shall be confined in the penitentiary not less than one nor more than five years." This statute has been held to embrace the case of servants receiving their master's property, and embezzling the same before it reaches him. Johnson v. Com. 5 Bush, 430. d R. v. Spencer, R. & R. 299. See R. v. Smith, Ibid. 516; R. v. Carr, Ibid. 198; R. v. Hoggins, Ibid. 145 R. v. Tongue, Bell C. C. 289. the purchase money, and embezzled the money, was holden to be a servant within the meaning of the act. e But it was determined that where the treasurer of a charitable institution, in his individual capacity, directed the defendant (who was the schoolmaster of the charity school, appointed by a committee of which the treasurer was a member, and whose sole duty was confined to the instruction of children), in one single instance to receive a voluntary contribution, for which he was to have no remuneration; the defendant was not a clerk, or servant, or person employed for the purpose, or in the capacity of a clerk or servant. We may therefore conclude, that a mere volunteer, permitted specially to collect a particular sum, is neither "clerk " nor" servant." g § 1908. Servants employed to change notes, or to sell goods.— It has been already seen, that if a servant having bare charge is employed to change a note, or to sell goods, steal the note or the goods, this is larceny, as his possession is the possession of his master. h If, however, he obtain change for the note, or sell the goods, and then secrete or abscond with the produce, this is not larceny, as the owner never was in possession, but embezzlement. But a person merely employed specially to get a check cashed, "for which he was to receive sixpence," is not a servant under the statute. And the same view has been taken as to a broker, undertaking, on a particular occasion, to purchase a certain bill.j1 § 1909. Compensation requisite to constitute service. It is es sential to constitute a servant that his services should be for some consideration. Yet this consideration need not be money; for if it consists in clothes, food, or home, it is, on general principles, sufficient to sustain an action against the servant for neglect, and hence a prosecution for embezzlement. Even a right given to the servant to receive the gratuities and fees of an office is e R. v. Hughes, 1 Moody, 370. f R. v. Nettleton, 1 Moody, 259. 9 R. v. Mayle, 11 Cox C. C. 150; R. v. Tyree, Law Rep. 1 C. C. 177; 11. Cox C. C. 241. See R. v. Freeman, 5 C. & P. 534. h § 1843, 1846 c. v. Winnall, 5 Cox C. C. 326; R. v. Hartley, R. & R. 139; Johnson . Com. 5 Bush (Ky.), 430. j R. v. Freeman, 5 C. & P. 534. See R. v. Mayle, 11 Cox C. C. 150. See People v. Dalton, 15 Wend. 581. j1 Com. v. Davis, 7 Bost. Law Rep. i R. v. Sullens, 1 Moody, 129; R. 94, per Allen, J. enough;k and a fortiori is this the case with commissions on a proportion of the profits, when such are fixed by rule. m There must, however, be wages or compensation in some shape, or else the prosecution fails. n § 1910. Members of societies or partners in firms not servants within the statutes.- A prosecution in such cases cannot be maintained, because (1) the possession of the particular member or partner is the possession of the whole society or firm, o and (2) such members or partners cannot be servants under the act to the firms or societies to which they belong. p It is otherwise, however, if the government of the society is vested in trustees, to whom the defendant, as treasurer, is distinctively subject. q § 1911. Discretion in handling and reinvesting the funds not inconsistent with character of servant. Of course, in larceny, where it is necessary that the thing stolen should, in specie, have been at some time in possession of the prosecutor, it is fatal to the prosecution if it appear that the money charged as stolen was not that which had once been in the prosecutor's possession, but its produce. But it is not so in the present form of embezzlement, the very essence of which offence being that the thing stolen should not have been once in the prosecutor's possession. Hence a prosecution for embezzlement may follow money embezzled through a dozen reinvestments, so long as it is in the embezzler's hands. The money which has flowed into the defendant's hand by virtue of his employer, may have become mixed with other moneys of the defendant, or may have been turned into other shapes or forms of security, and this with the employer's permission. Yet still the defendant after all this may be prosecuted for embezzling the funds received. 8 § 1912. Servant, yet not the servant of the prosecutors. So, k See R. v. Adey, 1 Den. C. C. 571; R. v. Taffs, Cox C. C. 169. See R. v. White, 8 C. & P. 742. Com. v. Berry, 99 Mass. 428. See 1 R. v. McDonald, L. & C. 85; 9 post, § 1952. Cox C. C. 10. R. v. Proud, L. & C. 97; 9 Cox m R. v. Hartley, R. & R. 139; R. C. C. 22; R. v. Hall, 1 Moody, 474; v. Thomas, 6 Cox C. C. 403. o See ante, § 1822. Post, § 1952. R. v. Carr, R. & R. 198. r See R. v. Hall, 3 Stark. 69. 8 But see apparently contra, Com. v. Libbey, 11 Metc. 64; Com. v. Stearns, 2 Metc. 343; and see post, § 1934. let it be remembered, an officer may be a servant, and may embezzle money as such, and yet not bear the relation of a servant to the prosecutors in a particular indictment. Thus the treasurer of a society may be a servant of the society, and as such may be guilty of embezzling the funds of the society; but if he is elected by the society, and governed by rules prescribed by the society, he is to be described as their servant, and not as the servant of the board of directors or trustees. t Nor does it make any difference that the appointment was in the trustees. The appointment may be in a principal officer, and the mastership in a subordinate, or vice versa. u In this respect, as will be hereafter seen, the New York statute is here much broader than the English. v § 1913. Summary. The term "servant," in the statutes, has been held to include: Employees in general, in respect to the particular master by whom they are paid and to whom they are accountable; w female house servants or domestics; x apprentices; y day laborers employed to take vegetables to market for sale and to bring back the price; z cashiers and collectors of business concerns, although admitted to a share of the profits, if they are not liable for losses, nor entitled to any control of the business; a commercial travellers; stage drivers ; c treasurers of railway corporations; d treasurers of townships and other bodies corporate; e solicitors appointed to collect debts for a salary ; ƒ and tax collectors.g § 1914. But fiduciary discretion to be exercised by the agent t R. v. Tyree, Law Rep. 1 C. C. 177; a R. v. McDonald, L. & C. 85; 9 11 Cox C. C. 241. In this case, how- Cox C. C. 10. ever, there was another ground for acquittal, viz. that the treasurer was a volunteer, with no salary. u See R. v. Salisbury, 5 C. & P. 155; R. v. Thorpe, Dears. & B. 562; 8 Cox C. C. 29. v Post, § 1926, 1930. w Per Bayley, J., in Williams v. Stott, 1 C. & M. 685; R. v. Dixon, 11 Cox C. C. 178; R. v. Thomas, 6 Cox C. C. 403. x R. v. Smith, R. & R. 267; R. v. Williams, 7 C. & P. 338. y R. v. Mellish, R. & R. 80. z R. v. Winnall, 5 Cox C. C. 326. b R. v. Tite, L. & C. 29; 8 Cox C. C. 458; R. v. Carr, R. & R. 198. c People v. Sherman, 10 Wend. 298. d Com. v. Tuckerman, 10 Gray, 173. e R. v. Squire, R. & R. 348; 2 Stark. R. 349; R. v. Welch, 2 C. & K. 296; 1 Den. C. C. 199; 2 Cox C. C. 85; R. v. Guelder, Bell C. C. 284; 8 Cox C. C. 372; R. v. Carpenter, 1 L. R. C. C. 29. See R. v. Tyers, R. & R. 402; R. v. Beacall, 1 Moody, 16. ƒ R. v. Gibson, 8 Cox C. C. 436. g R. v. Adey, 1 Den. C. C. 571; though see R. v. Truman, 2 Cox C. C. 306. |