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is, in such cases, proof of official status, it not being necessary to prove institution or taking an official oath. And in any view a de facto officer is indictable for the embezzlement of public money.?
Embezzlement from post-offices is hereafter distinctively considered.3
Under the term public officer, in State statutes, are included town collectors of taxes and selectmen.* Mere retention of public
111 Ind. 289, 1887 ; State v. Wells, 112 * In State v. Walton, 62 Me. 106, Ind. 237, 1887; State v. White, 66 1873, it was held not to be necessary, Wis. 343, 1886; State v. Czizek, 38 in an indictment against a town officer Minn. 192, 1888; State v. Cowan, 74 for the embezzlement or fraudulent Iowa, 53, 1888; State v. King, 81 conversion to his own use of moneys Iowa, 587, 1891 ; Stropes v. State, 120 in his possession and under his conInd. 562, 1889; Stanley v. State, 88 trol by virtue of his office, to allege to Ala. 154, 1890 ; Hemmingway v. State, whom the money belonged, or that it 63 Miss. 371, 1890; People v. Hamil- was the property of another. ton, (Cal.) 32 Pac. Rep. 526, 1893; It was further held that under the see U. S. v. Reilly, (Nev.) 2 W. Coast statute (R. S. c. 120, % 7), which deRep. 688, as to jurisdiction of circuit clares three different classes of offendcourts in United States ; U. S. v. Har- ers liable to be deemed guilty of larper, 33 Fed. Rep. 471, 1887; U. S. v. ceny, it is not necessary to the validity Bornemann, 36 Fed. Rep. 257, 1888; of an indictment, under the provisions State v. Govan, 48 Ark. 76, 1886 ; Mal- there found, to set out the various colmson v. State, 25 Tex. App. 267, facts that would be necessary to con1888; Crane v. State, 26 Tex. App. stitute larceny as elsewhere defined. 482, 1888; Com. v. Lewis, (Ky.) 12 S. It is sufficient to allege the acts and W. Rep. 266, 1889; State v. Archer, facts which that section declares shall 73 Md. 44, 1890; U. S. v. Warner, 26 be deemed larceny. Fed. Rep. 616, 1886; U. S. v. Adams, It was further ruled that a town col2 Dak. 305, 1881; Claassen v. U. S., lector of taxes is a public officer within 12 Sup. Ct. Rep. 169, 1891.
the meaning of that section, and can1 Whart. Crim. Ev. %% 164, 183; not successfully object to the mainteFortenberry v. State, 56 Miss. 286, nance of an indictment under that sec1879; State v. Mims, 26 Minn. 183, tion for the fraudulent conversion to 1879; People v. Hamilton, (Cal.) 32 his own use of moneys which have Pac. Rep. 526, 1893; U. S. v. Borne- come into his possession and under his mann, 36 Fed. Rep. 257, 1888; Mal- control, by virtue of his office, that he colmson v. State, 25 Tex. App. 267, and his sureties are liable to account 1888; State v. Findley, 101 Mo. 217, to the town for the money which he 1890. See State v. Bolin, 110 Mo. collects for it, according to his bond, 209, 1892.
and that the money is not the town's ? Ibid. ; R. v. Barrett, 6 C. & P. 124; money until it is paid into the treasury. State v. Goss, 69 Me. 22, 1878; State In the opinion of the court it was v. McEntyre, 3 Ired. 171, 1842 ; Diggs said by Barrows, J.:“The case of The v. State, 49 Ala. 311, 1873; State v. People v. Bedell, (2 Hill, 196, 1842) Spaulding, 24 Kans. 1, 1880.
arose under a New York statute, which Infra, & 1827.
provides that 'where any duty is or
funds in their proper deposit, without appropriation or conversion, is not embezzlement; though it is otherwise where such retention
shall be enjoined by law upon any the less public officers because their public officer, or upon any person powers are confined in narrow territoholding any public trust or employ- rial limits.' The court remarked that ment, every wilful neglect to perform he was required to take the oath and such duty · shall be a misde- to give bail for the faithful performance meanor punishable as herein de- of his duties, “and he was not the scribed.'
less a public officer because the office “The defendant was appointed col- is not mentioned in the statute enulector of the Geneva Village Corpora- meration and classification of public tion, by the trustees, and gave bonds officers.'” for the faithful discharge of his duty. In State v. Boody, 53 N. H. 610, Warrants and tax-bills were given him 1873, it was held that a selectman is a for collection. He finally went off a 'public officer," and may be "a redefaulter for from three to five hundred ceiver of public money” within the dollars, and was indicted under this intendment of c. 257, 87, of the Maine statute. It was objected that the char- General Statutes. ter of the village corporation did not In the course of his opinion, Foster, authorize the appointment by trustees, J., said: “But the terms of the statute and, if it did, defendant was not a relating to embezzlements are not republic officer within the meaning of stricted nor defined by the application the statute. The collector is not men- and definitions of the provisions of title tioned among the officers to be chosen xvii.; and, as used in § 8 of c. 258, for the corporation, but power is given Gen. Stats., the term “ public corporato the trustees to appoint one attor- tion' may properly be applied to a ney, street commissioner, fire-wardens, town. and certain other officers specially “Of this there can be no doubt. named, and also‘such other officers as Every municipal corporation is necesshall be authorized by this act. The sarily a public corporation. ‘All corcollector is not named in any list of porations intended as agencies in the officers in the act; but one section pro- administration of civil government are vides that the collector shall collect public, as distinguished from private, all moneys which shall be ordered by corporations. Thus, an incorporated the corporation to be raised by tax.' school district or county, as well as a Hereupon, in an opinion drawn by city, is a public corporation ; but the Bronson, J., the court held: I. That school district or county, properly the collector was one of the officers speaking, is not, while the city is, a authorized by the act, and might be municipal corporation. All municipal appointed by the trustees. II. That corporations are public bodies, created he was a public officer; and that offi- for civil or political purposes; but all cers of such a corporation are 'none civil, political, or public corporations
· State v. Hunnicut, 34 Ark. 862, 1879; Com. v. Lewis, (Ky.) 12 S. W. Rep. 266, 1989; Com. v. Este, (Mass.) 7 Crim. Law Mag. 184, 1885; People v. Clements, 25 N. Y. Week. Dig. 184, 1886; Fitzgerald v. State, 50 N. J. L. 475, 1888.
is accompanied by refusal to pay over on the fraudulent excuse of non-possession of the money. In such case the general refusal to pay over will sustain the charge.?
are not, in the proper use of language, under an indictment charging him municipal corporations.' Dillon Mun. with having stolen divers United States Corp. & 10.
notes and current bank bills for the “In this State, public corporations payment of $55, and of that value, of are understood to include all those divers issues and denominations to which are created for public purposes, the grand jury unknown, the personal and whose property is devoted to the goods and property of Mathias Eck, object for which they are created. who was the judgment creditor, it was Such, it is said, are counties, towns, held the prosecution could not be parishes, school districts, etc. Private maintained, under 2 71 of the Crimcorporations are those which are cre- inal Code of Illinois, declaring the ated for the immediate advantage of felonious conversion of money, goods, individuals. Such, it is said, are in- etc., by a bailee to be larceny, because surance and manufacturing companies, in no sense could the constable be reand such, also, are canals, turnpikes, garded as the bailee of the judgment toll-bridges, and railroads, although creditor. Nor is a constable who fails the uses of these latter are public. to pay over fines collected by him Dartmouth College v. Woodward, 1 guilty of embezzlement, as the Code N. H. 116, 117, 1817; Eustis v. Parker, of Illinois provides a different punishIbid. 275, 1818; School District v. ment for such an offence. Stoker v. Blaisdell, 6 Ibid. 197, 1833; Concord State, 114 Ill. 320, 1885; see People v. Railroad v. Greeley, 17 Ibid. 47, 1845; Royce, (Cal.) 37 Pac. Rep. 630, 1894; Foster v. Lane, 30 Ibid. 305, 1855; Crump v. State, 23 Tex. App. 615, Petition of Mt. Washington Road Co., 1887; State v. Manley, 107 Mo. 364, 35 Ibid. 134, 1857.” See State v. Cleve- 1891 ; State v. Noland, 111 Mo. 473, land, 80 Mo. 108, 1883, as to embezzle- 1892. ment by township trustee; State v. As to clerk of board of county comNicholson, 67 Md. 1, 1887; State v. missioners, see State v. Denton, (Md.) Hays, 78 Mo. 600, 1883.
22 Atl. Rep. 305, 1891. In Zschocke v. People, 62 Ill. 127, A clerk in the employment of the 1871, a constable, having an execution trustees of the gas-works of the city placed in his hands, levied upon and of Philadelphia is an employé of the took possession of certain goods be- city of Philadelphia, and under the longing to the judgment debtor, and Act of June 2, 1878, (Pa.) can be conput them in possession of the judg- victed of embezzlement. See Culp v. ment creditor. A short time after- Comm., 42 Leg. Int. 288, 1885. ward the constable took the goods Supra, & 1053; State v. Mims, 26 away, with the consent of the judg- Minn, 183, 1879. See Comstock v. ment creditor, and sold them at private Gage, 91 Ill. 328, 1878; Chaplin v. sale, receiving therefor the sum of $55, Lee, (Nebr.) 21 Rep. 85, 1885; U. S. which he converted to his own use. v. Adams, 2 Dak. 305, 1880. In a prosecution against the constable, ? State v. Ring, 29 Minn. 78, 1882.
IV. RECEIVING EMBEZZLED GOODS.
§ 1064. Receiving knowingly embezzled goods is generally held
a misdemeanor at common law wherever the embezzleat common ment is made penal by statute. But, aside from this
view, wherever embezzlement is made larceny by statute, there receiving embezzled goods stands on the same footing as receiving stolen goods. But where “receiving” is made a statutory offence, and is exclusively confined to goods stolen, this may preclude the receiving of embezzled goods from being indictable at common law.” It is clearly otherwise where embezzlement is made larceny by statute.
Supra, 2 996. See, however, Leal ceiving embezzled goods is a different v. State, 12 Tex. App. 279, 1882. offence from receiving stolen goods. ? See supra, & 994.
Com. v. Leonard, 140 Mass. 473, 1886. 3 R. v. Frampton, D. & B. 585. Re
POINTS REQUESTED FOR THE DEFENCE IMPROPERLY
REFUSED, AND ERRONEOUS CHARGES.
What Constitutes a Felonious Conversion. To constitute the crime of embezzlement there must be a felonious intent to deprive the owner of the use of the goods and to convert them to the use of the defendant; therefore where the defendant hauled seven bales of cotton to a gin-mill for the owner and took the receipt for one bale in his own name, but the receipt for the rest in the name of the owner, and, when afterward questioned, he turned all the receipts over to the owner, it was error for the court to refuse to charge the jury that if they believed the evidence they must find the defendant not guilty. Penny v. State, 88 Ala. 105, 1889.
Merely Keeping the Property of Another from Him is Not Necessarily
Embezzlement. And for the same reason the following instruction was held erroneous : “ If they (the jury) were satisfied beyond a reasonable doubt that the respondent was treasurer and received the money and spent it, then he was guilty under the information.” People v. Galland, 55 Mich. 628, 1885.
The defendant requested the court to charge: “If the evidence satisfies the minds of the jury that Carr (the defendant) received the check or certificate for collection, and that he collected it through the New York bank and never brought it to Alabama, and that the money was never with bank or in possession of the defendant, then they will find the defendant not guilty.” Refused. Held error. Carr v. State, (Ala.) 16 So. Rep. 155, 1894.
A Check as Such Not Subject to Embezzlement. And in the same case, where the indictment charged the receipt of money by the defendant, it was held error for the court to refuse the following instruction as requested by defendant: “Gentlemen of the jury, a check is not money, and if you believe from the evidence that the defendant received from Mrs. Rice no money, then you must find him not guilty. If the State has failed to prove to the satisfaction of the jury, beyond all reasonable doubt, that the defendant was the agent of Mrs. Rice, and as such received her money, the jury will find him not guilty; and if the State has failed to prove beyond all reasonable doubt to the satisfaction of the jury, first, that Carr was the agent of Mrs. Rice; second, that Carr received bank notes to his own use, or embezzled the same, then the jury will find him not guilty." Carr v. State, supra.