prisoner in his custody to escape, whether such escape is attempted or not; or, Third: Commits any unlawful act tending to hinder justice, is guilty of a felony. (2244, R. L. 1910) Jury may consider character of offense charged, physical ability of defendant to effect his escape, etc., and that which might be ordinary care in keeping prisoners, the duty of the jailor to use the doors, bolts, and locks of the jail in a manner likely to prevent escapes. Garver v. Terr., 5 Okla. 342. 1173. Communicating with Convict-Any person who, not being authorized by law or by a written permission from an inspector, or by the consent of the warden, communicates with any convict in the penitentiary, or brings intò or conveys out of the penitentiary any letter or printing to or from any convict, is guilty of a misdemeanor. (2298, R. L. 1910) 1174. Rescuing Prisoners-Any person who by force or fraud rescues or attempts to rescue or aids another person in rescuing or in attempting to rescue any prisoner from any officer or other person having him in lawful custody, is punishable as follows: First: If such prisoner was in custody upon a charge or conviction of felony, by imprisonment in the State penitentiary, for not less than ten years. Second: If such prisoner was in custody otherwise than upon a charge or conviction of felony, by imprisonment in a county jail not exceeding one year, or by a fine not exceed ing five hundred dollars, or by both such fine and imprisonment. (2194, R. L. 1910) 1175. Embezzlement Defined-Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted. (2670, R. L. 1910) Indictment, see sec. 403. Mitigation of punishment, see sec. 471. Failure of court clerk to account for funds, see sec. 1696. Embezzlement of funds by certain county officers, see secs. 1694 and 1696. An agent of a loan company who advances his own money to a borrower has no interest in the proceeds of a draft drawn to pay the loan. State v. Gillespie, 11 Okla. Cr. 631. The law implies a fraudulent intent on the part of an agent who appropriates the funds of his principal. State v. Duerksen, 8 Okla. Cr. 601, 129 P. 881. Where cash is the subject of embezzlement, it is not necessary to define cash as money, in instructing the jury. Approved instructions on circumstantial evidence. Carter v. State, 6 Okla. Cr. 232, 118 P. 264. Defendant cannot avail himself of the defense that property was unlawfully acquired by prosecuting witness. Ellington v. State, 7 Okla. Cr. 252, 123 P. 186. See information against attorney for embezzlement of funds collected. Price v. State, 10 Okla. Cr. 427, 137 P. 736. Mere failure to account for funds is not sufficient to sustain conviction; there must be a fraudulent appropriation. Blake v. State, 12 Okla. Cr. 549, 160 P. 30; Shannon v. State, 12 Okla. Cr. 584, 160 P. 1131. Waide v. State, 13 Okla. Cr. 165, 162 Pac. 1139. "Corpus delicti" in case where guardian appropriates funds of a ward. Choate v. State, 12 Okla. Cr. 560, 160 P. 34. Distinction between embezzlement and larceny depends on the time when defendant formed intent. Ennis v. State, 13 Okla. Cr. 676, 167 P. 229. Jurisdiction lies in county in which intent was formed. Rogers v. State, 14 Okla. Cr. 235, 170 P. 269. The treasurer of a society may be the servant of a society and as such may be guilty of embezzlement of its funds. Faggard v. State, 3 Okla. Cr. 159, 104 P. 930. A person who assumes to act as an officer of a lodge may be guilty of embezzlement of its funds. Lowdermilk v. State, 11 Okla. Cr. 281, 145 P. 1110. Funds deposited in a bank become the property of the bank, and an embezzlement of such funds by an officer of the bank is not an embezzlement of the property of the depositor, but of the bank. Ballew v. State, 11 Okla. Cr. 598. 1176. Embezzlement by Officer-If any person, being an officer, director, trustee, clerk, servant or agent of any association, society or corporation, public or private, fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement. (2671 R. L. 1910) 1177. Embezzlement by Carrier or Other Person-If any carrier or other person having under his control personal property for the purpose of transportation for hire, fraudulently appropriates it to any use or purpose inconsistent with the safe keeping of such property and its transportation according to his trust, he is guilty of embezzlement, whether he has broken the packages in which such property is contained, or has otherwise separated the items thereof, or not. (2672, R. L. 1910) 1178. Embezzlement by Trustee If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement. (2673, R. L. 1910) 1179. Embezzlement by Bailee-If any person being entrusted with any property as bailee, or with any power of attorney for the sale or transfer thereof, fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, he is guilty of embezzlement, whether he has broken the package or otherwise determined the bailment or not. (2674, R. L. · 1910. 1180. Embezzlement by Clerk or Servant-If any clerk or servant of any private person or co-partnership or corpora tion, except apprentices and persons within the age of 18 years, fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property. of any other person which has come into his control or care by virtue of his employment as such clerk or servant, he is guilty cf embezzlement. (2675, R. L. 1910) 1181. Distinct Taking Not Necessary-A distinct act of taking is not necessary to constitute embezzlement, but any fraudulent appropriation, conversion or use of property, coming within the above prohibitions is sufficient. (2676, R. L. 1910) 1182. Evidence of Debt Subject of Embezzlement-Any evidence of debt, negotiable by delivery only, and actually executed, is equally the subject of embezzlement whether it has been delivered or issued as a valid instrument or not. (2677, R. L. 1910) 1183. Property Taken Under Claim of Title-Upon any prosecution for embezzlement it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable. But this provision shall not excuse the retention of the property of another, to offset or pay demand held against him. (2678, R. L. 1910) Relation of debtor and creditor cannot be substituted for that of principal and agent or owner and broker by according time to an agent in which to make good his defalcation. Hughes v. State, 7 Okla. Cr. 117, 122 P. 554. A claim that defendant appropriated funds in good faith, believing that owner of property owed him, is no defense and amounts to a plea of guilty. Choate v. State, 12 Okla. Cr. 561, 160 P. 34. 1184. Intent to Restore-The fact that the accused intended to restore the property embezzled is no ground of defense, or of mitigation of punishment, if it has not been restored before an information has been laid before a magistrate charging the commission of the offense. (2679, R. L. 1910) Cited, State v. Duerksen 8 Okla. Cr. 601, 129 P. 881. 1185. Removal of Crops-Any person who shall remove any crops from leased or rented premises with intent to deprive the owner or landlord interested in said land of any of the rent due from said land, or who shall fraudulently appropriate the rent due the owner or landlord of said land, to himself or any person not entitled thereto, shall be deemed guilty of embezzlement and punished accordingly. (S. L. 1915, 549) 1186. Punishment for Embezzlement-Any person guilty of embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzled. And where the property embezzled is an evidence of debt or right in action, the sum due upon it, or secured to be paid by it, shall be taken as its value. (2681, R. L. 1910) |