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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.2 Embezzlement from post-offices is hereafter distinctively con

sidered.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 Ind. 237, 1887; State v. White, 66 Wis. 343, 1886; State v. Czizek, 38 Minn. 192, 1888; State v. Cowan, 74 Iowa, 53, 1888; State v. King, 81 Iowa, 587, 1891; Stropes v. State, 120 Ind. 562, 1889; Stanley v. State, 88 Ala. 154, 1890; Hemmingway v. State, 63 Miss. 371, 1890; People v. Hamilton, (Cal.) 32 Pac. Rep. 526, 1893; see U. S. v. Reilly, (Nev.) 2 W. Coast Rep. 688, as to jurisdiction of circuit courts in United States; U. S. v. Harper, 33 Fed. Rep. 471, 1887; U. S. v. Bornemann, 36 Fed. Rep. 257, 1888; State v. Govan, 48 Ark. 76, 1886; Malcolmson v. State, 25 Tex. App. 267, 1888; Crane v. State, 26 Tex. App. 482, 1888; Com. v. Lewis, (Ky.) 12 S. W. Rep. 266, 1889; State v. Archer, 73 Md. 44, 1890; U. S. v. Warner, 26 Fed. Rep. 616, 1886; U. S. v. Adams, 2 Dak. 305, 1881; Claassen v. U. S., 12 Sup. Ct. Rep. 169, 1891.

1 Whart. Crim. Ev. 22 164, 183; Fortenberry v. State, 56 Miss. 286, 1879; State v. Mims, 26 Minn. 183, 1879; People v. Hamilton, (Cal.) 32 Pac. Rep. 526, 1893; U. S. v. Bornemann, 36 Fed. Rep. 257, 1888; Malcolmson v. State, 25 Tex. App. 267, 1888; State v. Findley, 101 Mo. 217, 1890. See State v. Bolin, 110 Mo. 209, 1892.

2 Ibid.; R. v. Barrett, 6 C. & P. 124; State v. Goss, 69 Me. 22, 1878; State v. McEntyre, 3 Ired. 171, 1842; Diggs v. State, 49 Ala. 311, 1873; State v. Spaulding, 24 Kans. 1, 1880. 3 Infra, 1827.

In State v. Walton, 62 Me. 106, 1873, it was held not to be necessary, in an indictment against a town officer for the embezzlement or fraudulent conversion to his own use of moneys in his possession and under his control by virtue of his office, to allege to whom the money belonged, or that it was the property of another.

It was further held that under the statute (R. S. c. 120, 7), which declares three different classes of offenders liable to be deemed guilty of larceny, it is not necessary to the validity of an indictment, under the provisions there found, to set out the various facts that would be necessary to constitute larceny as elsewhere defined. It is sufficient to allege the acts and facts which that section declares shall be deemed larceny.

It was further ruled that a town collector of taxes is a public officer within the meaning of that section, and cannot successfully object to the maintenance of an indictment under that section for the fraudulent conversion to his own use of moneys which have come into his possession and under his control, by virtue of his office, that he and his sureties are liable to account to the town for the money which he collects for it, according to his bond, and that the money is not the town's money until it is paid into the treasury.

In the opinion of the court it was said by Barrows, J.: "The case of The People v. Bedell, (2 Hill, 196, 1842) arose under a New York statute, which 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 is not mentioned in the statute enumeration and classification of public officers.""

In State v. Boody, 53 N. H. 610, 1873, it was held that a selectman is a "public officer," and may be "a receiver of public money" within the intendment of c. 257, 87, of the Maine General Statutes.

In the course of his opinion, Foster, J., said: "But the terms of the statute relating to embezzlements are not restricted nor defined by the application and definitions of the provisions of title xvii.; and, as used in 8 of c. 258, Gen. Stats., the term 'public corporation' may properly be applied to a town.

"The defendant was appointed collector of the Geneva Village Corporation, by the trustees, and gave bonds for the faithful discharge of his duty. Warrants and tax-bills were given him for collection. He finally went off a defaulter for from three to five hundred dollars, and was indicted under this statute. It was objected that the charter of the village corporation did not authorize the appointment by trustees, and, if it did, defendant was not a public officer within the meaning of the statute. The collector is not mentioned among the officers to be chosen for the corporation, but power is given to the trustees to appoint one attorney, street commissioner, fire-wardens, and certain other officers specially named, and also 'such other officers as shall be authorized by this act.' The sarily a public corporation. 'All corcollector is not named in any list of officers in the act; but one section provides that 'the collector shall collect all moneys which shall be ordered by the corporation to be raised by tax.' Hereupon, in an opinion drawn by Bronson, J., the court held: I. That the collector was one of the officers authorized by the act, and might be appointed by the trustees. II. That he was a public officer; and that officers of such a corporation are 'none

"Of this there can be no doubt. Every municipal corporation is neces

porations intended as agencies in the administration of civil government are public, as distinguished from private, corporations. Thus, an incorporated school district or county, as well as a city, is a public corporation; but the school district or county, properly speaking, is not, while the city is, a municipal corporation. All municipal corporations are public bodies, created for civil or political purposes; but all civil, political, or public corporations

1 State v. Hunnicut, 34 Ark. 862, 1879; Com. v. Lewis, (Ky.) 12 S. W. Rep. 266, 1889; 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.2

are not, in the proper use of language, municipal corporations.' Dillon Mun. Corp. & 10.

under an indictment charging him with having stolen divers United States notes and current bank bills for the payment of $55, and of that value, of divers issues and denominations to the grand jury unknown, the personal goods and property of Mathias Eck, who was the judgment creditor, it was

"In this State, public corporations are understood to include all those which are created for public purposes, and whose property is devoted to the object for which they are created. Such, it is said, are counties, towns, held the prosecution could not be parishes, school districts, etc. Private maintained, under 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. Dartmouth College v. Woodward, 1 N. H. 116, 117, 1817; Eustis v. Parker, Ibid. 275, 1818; School District v. Blaisdell, 6 Ibid. 197, 1833; Concord Railroad v. Greeley, 17 Ibid. 47, 1845; Foster v. Lane, 30 Ibid. 305, 1855; Petition of Mt. Washington Road Co., 35 Ibid. 134, 1857." See State v. Cleveland, 80 Mo. 108, 1883, as to embezzlement by township trustee; State v. Nicholson, 67 Md. 1, 1887; State v. Hays, 78 Mo. 600, 1883.

In Zschocke v. People, 62 Ill. 127, 1871, a constable, having an execution placed in his hands, levied upon and took possession of certain goods belonging to the judgment debtor, and put them in possession of the judgment creditor. A short time afterward the constable took the goods away, with the consent of the judgment creditor, and sold them at private sale, receiving therefor the sum of $55, which he converted to his own use. In a prosecution against the constable,

to pay over fines collected by him guilty of embezzlement, as the Code of Illinois provides a different punishment for such an offence. Stoker v. State, 114 Ill. 320, 1885; see People v. Royce, (Cal.) 37 Pac. Rep. 630, 1894; Crump v. State, 23 Tex. App. 615, 1887; State v. Manley, 107 Mo. 364, 1891; State v. Noland, 111 Mo. 473, 1892.

As to clerk of board of county commissioners, see State v. Denton, (Md.) 22 Atl. Rep. 305, 1891.

A clerk in the employment of the trustees of the gas-works of the city of Philadelphia is an employé of the city of Philadelphia, and under the Act of June 2, 1878, (Pa.) can be convicted of embezzlement. See Culp v. Comm., 42 Leg. Int. 288, 1885.

1 Supra, & 1053; State v. Mims, 26 Minn. 183, 1879. See Comstock v. Gage, 91 Ill. 328, 1878; Chaplin v. Lee, (Nebr.) 21 Rep. 85, 1885; U. S. v. Adams, 2 Dak. 305, 1880.

2 State v. Ring, 29 Minn. 78, 1882.

Indictable

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 law. 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.3

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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.

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