conviction of an offense under the statute can lawfully be had. Kribs
v. People, p. 887.

An indictment, under such a statute, must set out the facts constituting the
embezzlement, and then aver that in that manner the defendant com-
mitted the larceny. Id.

Larceny at common law is not included within the statutes against embez-
zlement. Id.

An agent is not necessarily a "servant" within the statute as to embezzle-
ment. R. v. Walker, p. 889.

66

Certain manure manufacturers engaged W., who kept a saloon at B., to get
orders which they supplied from their stores. He was called agent for
the B. district and was to collect the money, pay it over at once, and
render a weekly account. Subsequently the manufacturers stored
large quantities of manure in B. in places rented by W., the rent being
repaid to him by his employers. W. then supplied the manure from
these stores. He was paid a small salary and commission. Having
appropriated money received from customers, and returned their names
as persons not having paid, W. was indicted and convicted of embez-
zlement. Held, that the conviction was wrong, as he was not a ser-
vant" of the manufacturers within the statute. Id.
The prisoner was engaged by the prosecutor to solicit orders for them, and
was to be paid by commission on the sums received through his means.
He had no authority to receive money; but if any was paid to him he
was forthwith to hand it over to his employers. He was at liberty to
apply for orders wherever he thought it most convenient, but was not to
employ himself for any other persons than the prosecutors. Contrary
to his duty he applied for payment of a certain sum; having received
it, he applied it to his own use, and denied, when asked, that it had
been paid to him; held, on the above facts, that the prisoner was not a
"clerk or servant" within the meaning of the statute Victoria. R. v.
Negus, p. 892.

To warrant the conviction of an agent for the embezzlement of his princi-
pal's money, four facts must be established beyond a reasonable doubt,
to wit: First, the agency whereby the defendant was charged with the
duty of receiving the money; second, his receipt of his principal's
money; third, that he received it in the course of his employment; and
fourth, that he embezzled, misapplied, or converted it to his own use.
Webb v. State, p. 895.

Statutes of embezzlement do not reach all breaches of duty by agents or the
like toward their principals, nor arm the latter with a criminal rem
edy for the enforcement of their contracts with the former. Id.

In a trial for embezzlement of money, the evidence showed that the defend-
ant was furnished with sewing machines for sale on terms requiring him
to account for them to his principal in money, or in purchase-money
notes payable to his principal; but by contract outside of the terms of
his agency, the defendent was authorized by his principal to sell ma-
chines for live stock, on condition that he would convert the stock into
money and account to his principal in money. He traded machines for

EMBEZZLEMENT - Continued.

horses, and when required to account, tendered the horses to his prin-
cipal, who refused to receive them, whereupon he sold the horses for
money and retained the money, disregarding his principal's demand for
it. Held, that the authority conferred on the defendant to trade the
machines for horses and convert the horses into money so changed the
character of the contract that neither the horses nor their proceeds
were the property of the principal, and the law of embezzlement could
not apply. Id.

W. had contracted with a railroad to provide them with horses and men to
carry their coal to their own customers in their own carts; that he and
his men should account to the company each day for the money re-
ceived by them for such coal. B. was a servant of W. whose duty it
was to pay to the company the money so collected. B. delivered coal
to one of the company's customers and received the money therefor,
which he converted to his own use. Held, that B. was not guilty of em-
bezzling the money of W. R. v. Beaumont, p. 897.

By "the money or property of another" the embezzlement of which by any
agent, clerk or servant, without the consent of his employer, is made
larceny by the Revised Statutes, is meant the money or property of
any person except such agent, clerk or servant who embezzles it.
Com. v. Stearns, p. 903.

An auctioneer who receives money on the sale of his employer's goods, and
does not pay it over, but misapplies it, is not such an agent or servant
as is intended by the Revised Statutes, whether he receives the goods
for sale in the usual mode, or receives them on an agreement to pay a
certain sum therefor, within a specified time after the sale. The money
received by an auctioneer, for goods sold by him, in both these cases,
is his own, and not "the money of another." Id.

To constitute embezzlement under the Texas code as amended, it is neces-
sary (1) that the accused occupy some one of the several fiduciary rela
tions specified; (2) that the money or property belonged to his principal;
and (3) that it came to the possession of the accused by virtue of his
fiduciary relation to his principal. An indictment for this offense must
sufficiently charge each of these constituents. Griffin v. State, p.

910.

An indictment for embezzlement charged that the accused was the agent of
a certain incorporated express company, and, that, as such, he received
$10,000, to be transported to a consignee at St. Louis; but further al-
leged that the money belonged to a certain bank, and neither stated
that the express company had any property in the money, nor that any
fiduciary relation existed between the bank and the accused. Held,
that the indictment is fatally defective in substance, necessitating the
the reversal of the conviction and the dismissal of the case. Id.
W. deposited title deeds with D. as security for a loan; and requiring a
further loan, the defendant, an attorney, obtained for W. a sum of money
from T., and delivered to her a mortgaged deed as security. There
were no directions in writing to the defendant to apply the money
to any purpose, and he was intrusted with the mortgage deed, with au-

EMBEZZLEMENT - Continued.

thority to hand it over to T., on receipt of the mortgage money, which
was to be paid to D. and W., less costs of preparing the deed. The
defendant fraudulently converted a substantial part of the money to
his own use. Held, that as there was no direction in writing, and the
mortgage deed was duly delivered to T., the defendant was not guilty
of a misdemeanor within 24 and 25 Victoria. Held, also that he was not
guilty of the misdemeanor, in section 76, of converting property intrusted
to him for safe custody, with intent to defraud. R. v. Cooper, p. 927.
Embezzlement by a bank cashier is not an offense at common law. There-
fore the punishment provided by a State law for embezzlement by any
"officer, director or member of any bank," can not be imposed upon
a national bank cashier, his crime being punishable only under the
United States statutes. Com. v. Ketner, p. 932

Who not "agent" within the statutes of embezzlement, p. 934.
Collector of bills not an "agent or servant," p. 935.

Nor keeper of county poor-house, p. 935.

Who not a bailee, p. 935.

Who not a "clerk or servant," p. 936.

Constable not a "servant," p. 936.

Nor tradesman taking goods to be manufactured, p. 936.
Servant must have authority to receive money, p. 937.

Act must be in course of employment, p. 938.
Meaning of "by virtue of his employment," pp. 938, 939.
Effect of statutes as to embezzlements by agents, p. 940.
Taking must be "on account of " master, p. 941.

Mere breach of contract not, p. 942.

As not paying over money, 943.

Prisoner must have denied its receipt, p. 944.

Property must be "property of another," p. 944.

Must be in possession of owner, p. 945.

Construction of "intrusted with any note or bill," p. 946.

Money of illegal association, p. 947.

Money paid by mistake, p. 947.

Embezzlement by attorney, p. 948.

Embezzlement by commission merchants, p. 948.

Embezzlement from corporation, p. 948.

"Officer, director or manager of bank" construed, p. 950.

"Officer" in United States statutes, p. 950.

"Person in United States postal service," p. 951.

Evidence held insufficient, p. 951.

"ENTERING."

Construed, p. 882.

ENTICING SEAMEN.

See DESERTION.

"ENTRUSTED WITH ANY BILL OR NOTE."

Construed, p. 951.

ESCAPE.

To constitute the crime of voluntary escape, the act must be done, not
through mistake or ignorance, but malo animo. Meehan v. State, pp.
291, 417.

If a jailor procures the discharge of a person in his custody from the
justice who has committed him under a conviction and discharges such
prisoner under it in good faith, believing it be to legal, such jailor is
not guilty of a voluntary escape, his crime being that of a negligent
escape. Id.

Where the warrant by virtue of which an officer receives a prisoner is void
because the magistrate had no jurisdiction to issue the warrant on the
affidavit made before him, the officer is not liable to prosecution for
voluntarily permitting the prisoner to escape out of his custody, al-
though the warrant is regular on its face. Houst v. People, p. 294.
On the trial of a prosecution for aiding to escape from custody, the fact of
custody is for the jury, and so, also, is the legality of that particular
custody. It is error to charge that the custody was legal if the State's
evidence is true, or that if the jury believe the evidence for the State
they must find a verdict of guilty. Habersham v. State, p. 297.
Custody by a private person after a legal arrest without warrant, becomes
illegal if protracted for an unreasonable time, and whether the time
was reasonable or unreasonable is a question for the jury, under proper
instructions from the court as to the promptness which the law exacts
in conveying the party arrested before a magistrate. Id.

Custody voluntarily assumed by private person without warrant, may be
lawfully terminated with his consent, by turning the prisoner loose.
Id.

A statute punishing the conveying to any person lawfully imprisoned, any
instrument, arms or other thing calculated to aid his escape is intended
to prohibit any substantial thing which might be used or handled by
him in facilitating or effecting his escape, and does not cover a letter
informing the prisoner that he has a friend and can be released from
confinement. Hughes v. State, p. 302.

A prisoner confined in jail under a void warrant, may liberate himself by
breaking the prison, provided he use no more force than is necessary
to enable him to effect his liberation. State v. Leach, p. 305.

The escape of other prisoners lawfully confined for atrocious crimes in the
same room with him in consequence of his escape, does not render him
guilty of any crime. Id.

Officer must be authorized to hold prisoner, p. 417.

Prisoner on bail, not in custody instanter after verdict of guilty, p. 417.

Prisoner on bail; surrender by sureties, p. 418.

Prisoner must be under sentence p. 418.

Aiding escape; indictment, p. 418.

Assistance must be towards escaping from jail, p. 418.

EVIDENCE.

See OPINIONS; DYING DECLARATIONS.

EXTORTION.

To constitute the statutory offense of extortion the officer must have acted
in an official capacity, and not as a private individual must have de-
manded or accepted, under color of his office, fees to which he was not
entitled, from a person for whom he had rendered official services, or
from whom he had a right to demand a fee. Collier v. State, p. 307.
Official extortion as defined in the Texas Penal Code is the willful demand
and reception by any officer authorized by law to receive fees of office,
or by any person employed by such officer, of "higher fees than are
allowed by law" for the services in question. If no fees were allowed
by law for the services in question, then no prosecution under this pro-
vision can be maintained; and an indictment is bad which shows on its
face that the services were not services for which any fees were allowed
by law. Smith v. State, p. 310.

A surgeon appointed to make periodical examination of pensioners by the
commissioner of pensions, under Revised Statutes, section 4777, is not
an officer of the United States within the meaning of section 12 of the
act of 1825, declaring that "every officer of the United States who is
guilty of extortion under color of his office shall be punished by a fine
of not more than $500, or by imprisonment not more than one year,
according to the aggravation of his offense." U. S. v. Germaine, pp.
314, 419.

The Constitution of 1876 confers on the District Courts original jurisdiction
of misdemeanors involving "official misconduct," and the Revised
Statutes provide that official misconduct in a county officer consists in
"any unlawful behavior in relation to the duties of his office willful in
its character," and any "willful or corrupt failure, refusal, or neglect
of an officer to perform any duty enjoined on him by law." Held, that
this statutory provision interprets the phrase "official misconduct" as
employed in the Constitution, and restricts the misdemeanor jurisdic-
tion of the District Courts to such misdemeanors as involve official
acts or omissions which are not only unlawful, but also willful or cor-
rupt. Watson v. State, p. 318.

An indictment charged that the appellant, being sheriff of F. county, failed
and neglected to exercise supervision over the county jail, and thereby
negligently permitted certain felons in his custody to escape therefrom.
Held, that the misdemeanor charged did not involve such official mis- .
conduct as would, on his conviction therefor, work a forfeiture of his
office. Id.

Must be public officer, p. 418.