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must be shown in

with character of

§ 1058. Subject to the qualifications above expressed, it is necesConversion sary, to sustain a conviction, that there should have been

put in proof some act of conversion by the bailee, inconconsistent sistent with the terms of the bailment. As an illustra

tion of such breach of bailment may be mentioned an bailment. English conviction sustained on proof that the defendant, a carrier, employed by the prosecutor to deliver in his (the defendant's) cart a boat's cargo of coals to persons named in a list, and only to such persons, fraudulently sold some of the coals and appropriated the proceeds.?

1876, the evidence was that B. owned (Dig. Crim. Law, art. 345), the 24 & a large number of barrels of crude 25 Vict. does not extend to an agent petroleum. This oil was in the tanks who disposes of a chattel, valuable and pipes of a carrier, intermingled security, or power of attorney accordwith and undistinguishable from ing to unwritten instructions given to thousands of barrels of other oil in him, and subsequently misapproprithe same tanks and pipes. B. held ates the proceeds thereof, unless (posorders, accepted by the carrier, for the sibly) he is proved to have had an inquantity of petroleum mentioned, tention to misappropriate the prowhich he delivered to the defendants ceeds at the time when he disposed of for the purpose of having them store the chattel, valuable security, or the petroleum, taking back from them power of attorney. This, he says, a receipt setting forth that fact. The seems to be the effect of R. v. Tatdefendants deposited these orders to lock, L. R. 2 Q. B. D. 157; and R. v. the credit of their general account Cooper, L. R. 2 C. C. 123. In R. + with the carrier, as they did other Tatlock, the judges were not unanilike orders, and drew petroleum from mous. the carrier thereon. The petroleum See R. v. Jackson, 9 Cox C. C. drawn was disposed of from time to 505; Larkin v. People, 61 Barb. 226, time by them for their own benefit, 1871. until they became insolvent. B. then * R. v. Davies, 14 W. R. 679; 14 demanded his petroleum, but they L. T. (N. S.) 491 ; Calkins v. State, 18 were unable to deliver it, by reason of Ohio St. 366, 1868 ; R. v. Aden, 12 Cox having nearly exhausted the quantity C. C. 512. As to conversion by a of oil they were entitled to draw from solicitor, see R. v. Fullerger, 14 Ibid. the carrier's pipes. The defendants 370; R. v. Newman, London Law were then indicted for larceny as Times, March 15, 1882; 8. C. 46 L. T. bailees. The Supreme Court held, (N. S.) 394. But merely marking a Mercur, J., dissenting, that (1) by the bale of cotton which was delivered to rules of the trade there was a delivery; defendant to take to the gin-mill in (2) that there was a bailment; and (3) the name of his son, and taking a rethat the drawing of the petroleum and ceipt in the same name, is not suffiselling it on their own account by the cient. Penny v. State, 88 Ala. 105, defendants was a conversion to their 1889.

In the case of a city treasurer, any According to Sir J. F. Stephen wilful or fraudulent disposition of

own use.

diction.

$ 1059. Some act of conversion or appropriation by Some act of the bailee or carrier must be alleged and proved to have conversion taken place within the jurisdiction of the court.

in juris§ 1060. In general, the rules laid down with regard

Indictment to embezzlements by servants for appropriating goods must conwhich have not yet reached their masters, apply (with form to the exception of the averment as to the master's nonreception of the goods) with equal force to embezzlements by trustees and bailees.” The following points, peculiar to the last class of embezzlements, are now to be noticed.

§ 1061. The special conditions of particular statutes are to be expressed in the indictment. As these are what consti

Special tute the differentia of the offence, as distinguishing it facts to be

averred. from larceny, they must be set forth in the indictment.? Hence the indictment must aver not merely the bailment or trust, but the special circumstances which make the case embezzlement under the statute. And so it is necessary to state in the indictment the purpose

for which the defendant was intrusted with the property; and the specific act of fraud with which the defendant is charged.

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the funds for purposes other than chusetts, the particulars of embezzlethose properly entitled to it will be ment need not now (by statute) be embezzlement in Mississippi. Hem- stated. Com. v. Bennett, 118 Mass. mingway v. State, 68 Miss. 371, 1890, 443, 1875. See Hodges v. State, infra.

| Larkin v. People, 61 Barb. 226, See State v. Grisham, 90 Mo. 163, 1871 ; See supra, % 248–251, 1040, 1886, as to embezzlement of a chattel 1058; State v. Bancroft, 22 Kans. 170, mortgage; Aldrich v. State, 29 Tex. 1879

App. 394, 1891 ; Com, v. Beeby, (Pa.) 2 See supra, & 1043.

3 Lanc. Law Rev. 358, 1886; Lycan v. R. v. Golde, 2 M. & Rob. 425; People, 107 Ill. 423, 1883; Queen v. Com. v. Smart, 6 Gray, 15, 1856. See Stansfeld, 8 Leg. News, 123, 1885. Com. v. Hays, 14 Ibid. 62, 1859; That value on gross to a number of Com, v. Simpson, 9 Metc. 138, 1845; articles is enough, see State v. Mook, Larkin v. People, 61 Barb. 226, 1871; 40 Ohio St. 588, 1884. People v. Tryon, 4 Mich. 665, 1857 ; s Com. v. Smart, 6 Gray, 15, 1856 ; People v. Bailey, 23 Cal. 577, 1863. People v. Cohen, 8 Cal. 42, 1857; PeoSee Heller v. People, 2 Colo. App. ple v. Hill, (Utah) 2 W. Coast Rep. 459, 1892; People v. Hill, (Utah) 2 476, 1884; Heller v. People, 2 Colo. W. Coast Rep. 476, 1884; People v. App. 459, 1892. But see State v. Salors, 62 Cal. 139, 1882.

Fournier, 12 Mont. 235, 1892; State v. * State v. Walton, 62 Me. 106, 1873; Trolson, (Nev.) 32 Pac. Rep. 930, Com.v.Wyman, 8 Metc. 247,1844; Wise 1893. v. State, 41 Tex. 139, 1874; State v. & Com. v. Wyman, 8 Metc. 247, 1844. Longworth, Ibid. 162, 1874. In Massa- As giving a laxer view, see State v.

§ 1062. A mere common law indictment for larceny is not At common

enough, unless made so specially by statute. In England law indict- at one time an opinion was ventured at nisi prius to the larcenynot effect that a common law indictment for larceny would be enough.

good in embezzlements by bailees ;' but this case was exceptional, and not only was disregarded in subsequent adjudications, but was practically overruled by a series of decisions already referred to, in which it was held that the special nature of the trust should be set forth. These were followed by the 24 & 25 of Victoria, c. 96, s. 3, which provided that in prosecutions of bailees fraudulently converting the bailed goods, an indictment for larceny should be sufficient. Where a statute to this effect is not in operation, it is essential in all cases of embezzlement as distinguished from larceny, that the fiduciary character and duties of the bailee should be set forth in the mode already specified.”

Stimson, 4 Zab. 9, 1853; State v. Por- statute, must receive a strict constructer, 26 Mo. 201, 1858; and see Com. v. tion; and an actual demand to be Newcomer, 49 Pa. 478, 1865.

made by the consignor upon the comAn indictment of B. for embezzling mission merchant is an indispensable securities in money held by him from prerequisite to a conviction under it. H, in “trust and confidence to be by In a case under this statute, the B. safely kept for H. until H. shall prosecutor testified that, when he went call for the same," sets forth a trust to the place of the accused, the latter on the part of H. with sufficient ex- said: “I know what you have come actness to warrant a conviction of B. for, but it is impossible for me to pay on proof of his fraudulent conversion you anything now." The witness of the trust funds so held. Com. v. stated that the accused knew well Butterick, 100 Mass. 1, 1868.

enough what he had come for, and this In Wright v. People, 61 Ill. 382, was all the demand he claimed to have 1871, it was held that the Illinois act been made. It was held that while in a of March 4, 1869, entitled an act for civil cause, where a demand was necesthe protection of consignors of fruit, sary, such evidence might be sufficient grain, flour, etc., to be sold on com- for a jury to find a waiver, it could not mission, which provides that any ware- sustain a criminal prosecution. The houseman, storage, forwarding or demand for the latter purpose should commission merchant, who, having be made in such a manner as to fairly converted to his own use the proceeds apprise the merchant that he would or profits arising from the sale of any be subject to the penalties of the statgoods, otherwise than as instructed by ute if he failed to comply. Ibid. See the consignor of the goods, on demand Heller v. People, supra.

But see of the consignor, fails to deliver over State v. Trolson, (Nev.) 32 Pac. Rep. the proceeds or profits of such goods, 930, 1893; Hodges v. State, 22 Tex. after deducting the usual per cent. on App. 415, 1886. sales as commissions, shall be guilty 1 R. v. Haigh, 7 Cox C. C. 403. of a misdemeanor, etc., being a penal Supra, 8 1043. But where in an in

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We have already seen that counts for larceny may be joined with those for embezzlement." § 1062 a. The evidence in cases of embezzlement, both

Evidence as to the nature of the trust, the embezzling act, and the

inferential. intent, is inferential.?

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dictment for embezzlement words are done by him at that meeting which he used which are descriptive of larceny might not have done as a manager; it they will be held to describe the was held that this was insufficient eviformer. State v. Harris, 106 N. C. dence of acting to support the infer682, 1890.

ence of the legal appointment of T. as Supra, & 1047.

a trustee, and that the conviction was 2 A8 to Nature of Trust.—The acting wrong. R. v. Essex, Dears. & B. C. in an office is sufficient proof of au- C. 369; 4 Jur. (N.S.) 15; 7 Cox C. C. thority. Whart. Crim. Ev. 88 834–5. 384. Thus if a person receive money as An admission by a person indicted a steward of another, this is sufficient as servant to guardians of the poor

of evidence of his being a steward to a parish, such admission being consupport an indictment for embezzling tained in the condition of his bond for such money. R. v. Beacall, 1 C. & P. the performance of his duties as treas312; R. v. Wellings, Ibid. 454, 457. urer, coupled with an act of parlia

The presumption of due appoint- ment specifying those duties, is suffiment applies also to the person from cient evidence of the nature of his whom goods are embezzled, if he be a appointment. R. v. Welch, 1 Den. C. trustee.

C. 199; 2 C. & K. 296. Where there has been a written That a decoy has been used is no agreement between master and ser- defence. Supra, 88 149, 1039. Where vant, in which the nature of the ser- B., a brewer, sent his drayman, S., out vice is defined, on an indictment for with porter, with authority to sell it embezzlement against the latter, parol at fixed prices only; and S. sold some evidence of the service is inadmissible, of it to P. at an under price, but did unless notice has been given to pro- not receive the money at the time; B., duce the agreement. R. v. Clapton, 3 having heard of this, unknown to S., Cox C. C. 126.

told P. to pay S. the amount, which Where a clerk to a savings bank P. did, and S., when asked for it by was convicted on an indictment charg- B., denied the recept of the money; ing him with embezzlement, the prop- embezzlement was held to be made erty being laid in T.; and in order out. R. v. Aston, 2 C. & K. 418. to prove that T. was trustee of the Intent may be inferred from abbank, he was called, and stated that sconding. Thus where S., a servant since the commission of the offence he of M., being sent to receive rent due · had been acting as a trustee, but that M., received it, and immediately before that date he had attended only went off with it to Ireland; it was one meeting, having on that occasion held that this was evidence from been requested to do so lest there which the jury might infer that S. inshould be a deficiency of trustees; but tended to embezzle the money. R. v. he was also a manager of the bank, Williams, 7 C. & P. 338. Supra, and it did not appear that any act was % 1030.

57*

901

III. PUBLIC OFFICERS.

§ 1063. Public officers, under statutes varying in different juris

dictions, are made indictable for embezzlement. The Embezzlement by

statutes, however, are so various, abounding in such statutory

numerous distinctions, that it would exceed the limits of officers.

the present work to exhibit them in detail. Holding office

Other acts of embezzlement may be Samuels, 111 Mo. 566, 1892; Stallings introduced to prove intent. Whart. v. State, 29 Tex. App. 220, 1890; Com. Crim. Ev. & 53. Thus where an in- v. Sawtelle, (Mass.) 7 Crim. Law Mag. dictment charged the prisoner with 762, 1886; State v. Halstead, (Iowa) having embezzled three sums of 10 Crim. Law Mag. 279, 1887; R. v. twenty-one pounds, the moneys of his Stephens, 58 L. T. 776, 1888; U. S. v. employers, he being a clerk or ser- Camp, 10 W. Coast Rep. 127, 1886. vant, evidence having been given of | For rulings under such statutes, the embezzlement of these sums, it see U. S. v. Cook, 17 Wall. 168, 1872; was then proposed to give evidence of U. S. v. Taintor, 11 Blatch. 374, 1873; other sums not charged in the indict- U. S. v. Bixby, 10 Biss. 238, 1881 ; U.S. ment, but which had also been em- v. Forsythe, 6 McL. 584, 1855 ; U. S. bezzled; and this was admitted to v. Voorhees, 9 Fed. Rep. 143, 1881 ; show that if it should be contended U. S. v. Lee, 12 Ibid. 816, 1882; U. S. the sums charged in the indictment v. Conant, Lowell, J., 9 Cent. L. J. were subjects of a mistake in keeping 129, 1879; U. S. v. Bogart, 3 Ben. the accounts, there being many other 257, 1869; State v. Walton, 62 Me. sums unaccounted for, admitting evi- 106, 1873; State v. Boody, 53 N. H. dence of such sums would assist the 610, 1873; Com. v. Morrisey, 86 Pa. jury in determining what value was 416, 1878; Calkins v. State, 18 Ohio to be attached to the suggestion. R. St. 366, 1868; State v. Newton, 26 v. Richardson, 8 Cox C. C. 448; 2 F. Ibid. 265, 1875; People v. Bringard, & F. 343.

39 Mich. 22, 1878; State v. Hebel, 72 Denial of Receipt Necessary.It is Ind. 361, 1880; State v. Brandt, 41 not enough to prove that a clerk has Iowa, 593, 1875; State v. Munch, 22 received a sum of money without en- Minn. 67, 1875 ; State v. Baumhager, tering it in his book, unless there is 28 Minn, 226, 1881; State v. Ring, 29 also evidence that he has denied its Minn. 78, 1882; State v. Smith, 13 receipt. R. v. Jones, 7 C. & P. 833. Kans. 274, 1874; State v. Carrick, 16 But this denial may be inferential. Nev. 120, 1881; Hoyt v. State, 50 Ga. See R. v. Grove, 7 C. & P. 635; 1 M. 313, 1873; Johnson v. Com., 5 Bush, C. C. 447. Supra, 2% 1030, 1053. 430, 1869; State v. Leonard, 6 Cold. U. S. v. Adams, 2 Dak. 305, 1880. 307, 1869; State v. Bittinger, 55 Mo. See Perry v. State, 22 Tex. Apr. 19, 596, 1874; State v. Flint, 62 Ibid. 393, 1886, for insufficiency of evidence, 1876; State v. Hays, 78 Ibid. 600, and Williams v. State, 25 Tex. App. 1883; State v. Doherty, 25 La. An. 733, 1888; Harris v. State, 21 Tex. 119, 1873; State v. Exnicios, 33 Ibid. App. 478, 1886; Knight v. State, (Tex.) 253, 1881 ; State v. Connelly, 104 N. 13 S. W. Rep. 598, 1890; State v. C. 794, 1889; Stokes v. People, 114 Findley, 101 Mo. 217, 1890; State v. Ill. 320, 1885; Hollingsworth v. State,

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