(465) Second count. Larceny.

That the said A. B., on, &c., at, &c., of the goods, chattels and personal property of one C. D., then and there being found, feloniously did steal, take and carry away, to the great damage of the said C. D., against, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(466) Against the president and cashier of a bank for an embezzlement. Rev. Sts. of Mass. ch. 126, § 27.(a)

That William Wyman, late of Charlestown, in the County of Middlesex, gentleman, and Thomas Brown the younger of that name, of the same place, gentleman, at Charlestown aforesaid, in the county aforesaid, on the first day of April, in the year of our Lord the said Wyman, then and there being one of the directors and president of the Phoenix Bank, a corporation then and there duly and legally established, organized, and existing under and by virtue of the laws of the said commonwealth, as an incorporated bank, and the said Brown being then and there cashier of the said bank, did, by virtue of their said respective offices and employments, and whilst the said Wyman and Brown were severally employed in their said respective offices, have, receive, and take into their possession certain money to a large amount, to wit, to the amount and sum of two hundred and twenty thousand dollars, and of the value of two hundred and twenty thousand dollars, divers bills, called bank bills, amounting in the whole to the sum of one hundred and twenty thousand dollars, and of the value of one hundred and twenty thousand dollars, divers, notes, called treasury notes, amounting in the whole to the sum of seventy-five thousand dollars, and of the value of seventy-five thousand dollars, of the goods and chattels, property and moneys of the said President, Directors and Company of the Phoenix Bank, (b) in their banking-house there situate, being; and the said money, bills, and notes then and there unlawfully, fraudulently, and feloniously did embezzle, in the banking-house aforesaid. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Wyman and Brown then and there, in manner and form aforesaid, the aforesaid money, bills and notes, of the goods, chattels, property and moneys of the said President, Directors and Company of the Phoenix Bank, feloniously did steal, take and carry away, in the banking-house aforesaid; against, &c., and contrary, &c. (Conclude as in book 1, chap. 3.)

(a) Commonwealth v. Wyman, 8 Metcalf, 247. The indictment in this case, say Messrs. Thaine and Heard, was founded on the Rev. Sts. of Mass. ch. 133, § 10, which enact, that "In any prosecution for the offence of embezzling the money, bank notes, checks, drafts, bills of exchange, or other securities for money, of any person, by a clerk, agent, or servant of such person, it shall be sufficient to allege generally, in the indictment, an embezzlement of money to a certain amount, without specifying any particulars of such embezzlement, and on the trial, evidence may be given of any such embezzlement, committed within six months next after the time stated in the indictment; and it shall be sufficient to maintain the charge in the indictment, and shall not be deemed a variance, if it shall be proved that any money, bank note, check, draft, bill of exchange, or other security for money, of such person, of whatever amount, was fraudulently embezzled by such clerk, agent, or servant, within the said period of six months." In Commonwealth v. Wyman it was held, that this section did not include bank officers, and that a bank officer, when accused of embezzlement, must be charged with a specific act of fraud, as in larceny at common law, and be proved guilty of the specific offence charged, and that not more than one offence could be alleged in one count of the indictment. But by St. 1845, ch. 215, the provisions of this section are extended to all prosecutions of a similar nature, against presidents, directors, cashiers, and other officers of banks.

(b) The ownership may be laid in the person having the actual or constructive possession, or the general or special property in the whole, or in any part of the property. Rev. Sts. of Mass. ch. 133, § 11; Commonwealth v. Harney, 10 Metcalf 426. Th. & H. Prec. 188.

(467) Against a clerk for embezzlement. Rev. Sts. of Mass. ch. 126, § 29.(c)

That C. D., late of B. in the County of S., trader, on the first day of June, in the year of our Lord at B., in the County of S., being then and there the clerk of one J. N., the said C. D. not being then and there an apprentice to the said J. N., nor a person under the age of sixteen years, did then and there, by virtue of his said employment, have, receive, and take into his possession certain money, to a large amount, to wit, to the amount of one thousand dollars, and of the value of one thousand dollars, of the property and moneys of the said J. N., the said C. D.'s said employer, and the said C. D. the said money then and there feloniously did embezzle, and fraudulently convert to his own use, without the consent of the said J. N., the said C. D.'s employer; whereby, and by force of the statute in such case made and provided, the said C. D. is deemed to have committed the crime of simple larceny. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. then and there, in manner and form aforesaid, the said money of the property and moneys of the said J. N., the said C. D.'s said employer, from the said J. N. feloniously did steal, take and carry away; against, &c., and contrary, &c. (Conclude as in book 1, chap. 3.)

(468) Against a carrier for embezzlement. Rev. Sts. of Mass. ch. 126, 30.(d)

§

at

That one J. N., on the first day of June, in the year of our Lord F., in the County of M., did deliver to one J. S., late of, etc., the said J. S. being then and there a carrier, a certain large sum of money, to wit, the sum of one thousand dollars, and of the value of one thousand dollars, of the property and moneys of the said J. N., to be carried by the said J. S., for hire, to wit, for the sum of two dollars, and to be delivered by the said J. S., for

(c) Th. & H. Prec. 189. In Massachusetts, say Messrs. Thaine and Heard, it has been held, that there are a certain class of cases which do not come within the statute. Thus, in Commonwealth v. Libbey, 11 Metcalf 64, that a person who is employed to collect bills for the proprietors of a newspaper establishment, and converts to his own use the money which he collects for them, is not such an agent or servant as is intended by section twenty-nine. In this case, Dewey J. said, "In the case of a domestic servant, and to some extent, in the case of a special agency, the right of property and the possession continue in the principal, and a disposal of the property would be a violation of the trust, and an act of embezzlement. But cases of commission merchants, auctioneers, and attorneys authorized to collect demands, stand upon a different footing; and a failure to pay over the balance due to their employers, upon their collections, will not, under the ordinary circumstances attending such agency, subject them to the heavy penalties consequent upon a conviction of the crime of embezzlement." And in Commonwealth v. Stearns, 2 Metcalf 343, it was held that 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 statute; 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. See The People v. Allen, 5 Denio 76. By "the money or property of another," in the statute is meant the money or property of any person except such agent, clerk, or servant who embezzles it. A different construction would leave unprovided for, all cases of embezzlement by servants or agents, of the property of their masters or their principals. Commonwealth v. Stearns, 2 Metc. 343. See also The People v. Hennessey, 11 Wendell 147.

(d) Th. & Heard Prec. 191. Carriers for hire, say Messrs. Thaine and Heard, could not, by common law, commit larceny. Commonwealth v. Brown, 4 Mass. (Rand's ed.) 579. But this rule has been changed in Massachusetts and in Maine. Rev. Sts. of Mass. ch. 126, § 30; Rev. Sts. of Maine, ch. 156, § 7. Under the statute of Maine, if a person, to whom property is intrusted in Maine, to be carried for hire, and delivered in another state, shall, before such delivery, fraudulently convert the same to his own use, the crime is punishable in Maine, whether the act of conversion be in that state or in another. The State v. Haskell, 33 Maine 127.

the said J. N., and by the said J. N., sent and directed to one C. D., at B., in the County of S.; and that the said J. S. did, by virtue of his said employment as a carrier, at F. aforesaid, in the county aforesaid, and while he was so employed as aforesaid, take into his possession said money to be carried and delivered as aforesaid, and that the said J. S., carrier as aforesaid, afterwards, to wit, on the first day of June, in the year of our Lord at F., in the County of M., and before the money so delivered to him as aforesaid was by the said J. S. delivered to the said C. D. at B., in the County of S., feloniously did embezzle and fraudulently convert the same to his own use; whereby, and by force of the statute in such case made and provided, the said J. S. is deemed to have committed the crime of simple larceny. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. S., on the said first day of June, in the year of our Lord at F., in the County of M., in manner and form aforesaid, the said money, the property of the said J. N., from the said J. N. feloniously did steal, take and carry away; against, &c., and contrary, &c. (Conclude as in book 1, chap. 3.)

(469) Embezzlement by clerk or servant in England. (d)

That J. S., &c., on, &c., at, &c., being then and there employed as clerk ("clerk or servant, or any person employed for that purpose, or in the capacity of a clerk or servant"), to J. N., did by virtue of his said employment, then and there, and whilst he was so employed as aforesaid, receive and take into his possession certain money ("chattel, money or valuable security"), (e) to a large amount, to wit, to the amount of ten pounds, for and in the name and on the account of the said J. N., his master, and the said money then and there fraudulently and feloniously did embezzle; and so the jurors, &c., do say, that the said J. S., on, &c., at, &c., then and there in manner and form aforesaid, the said money, the property of the said J. N., his said master, from the said J. N. feloniously did steal, take and carry away, against, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(If the prisoner has been guilty of other acts of embezzlement within the period of six months, add the following):

day of

That the said J. S., on, &c., at, &c., afterwards and within six calendar months from the time of the committing of the said offence in the first count of this indictment charged and stated, to wit, on the in the year aforesaid, at the parish aforesaid, in the county aforesaid, being then and there employed as clerk to the said J. N., did by virtue of such last mentioned employment, then and there, and whilst he was so employed as last aforesaid, receive and take into his possession certain other money to a large amount, to wit, to the amount of ten pounds, for and in the name and on the account of the said J. N., his said master, and the said last mentioned money then and there within the said six calendar months, fraudulently and feloniously did embezzle, and so, &c. (as in the first count to the end).

(d) Archbold's C. P. 5th Am. ed. 329.

This form is drawn upon the statutes 7 and 8 Geo. IV. c. 29, s. 47; which, for the punishment of embezzlements committed by clerks or servants, declares and enacts, that if any clerk or servant, or any person employed for the purpose, or in the capacity of a clerk or servant shall, by virtue of such employment receive, or take into his possession any chattel, money or valuable security, for or in the name or on the account of his master, and shall fraudulently embezzle the same or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master, although such chattel, money or security was not received into the possession of such master otherwise than by the actual possession of his clerk, servant or other person so employed; and every such offender, being convicted thereof, shall be liable at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned.

(e) See 7 and 8 Geo. IV. c. 29, s. 5.

CHAPTER VIII.

MALICIOUS MISCHIEF.(ƒ)

[For several forms of indictments which might be classed under this head, see 213, &c.]

(470) Maliciously wounding a cow.

(471) Giving cantharides to prosecutors.

(472) Tearing up a promissory note.

(473) Cutting down trees the property of another, not being fruit, or cultivated,

or ornamental trees, under Ohio statute.

(474) Destroying vegetables, under Ohio statute.

(475) Killing a heifer, under Ohio statute.

(476) Cutting down trees, &c.

(f) For the offence generally, see Wh. C. L. as follows:A. STATUTES.

United States.

Intent to kill, rob, steal, commit a rape, &c., breaking into vessel upon high seas, &c., § 1943.

Massachusetts.

Mingling poison with food, &c., § 1944.

Maliciously killing or maiming horse, cattle, &c., § 1945.

Breaking down, injuring, removing or destroying dam, reservoir, &c., § 1946.

Destroying, &c., public or toll-bridge, railroad, &c., § 1947.

Maliciously girdling, lopping or destroying trees, breaking glass, &c., §

1948.

Maliciously destroying monument erected for designating boundaries of town, &c., § 1949.

Maliciously committing trespass, § 1950.

Trespassing on grounds of another with intent to destroy or take away trees, &c., § 1951.

Jurisdiction of justice of peace, &c., § 1952.

Beating or torturing horse, ox, or other animal, § 1953.

Maliciously destroying personal property of another, § 1954.

Jurisdiction of justice of peace, &c., § 1955.

Maliciously destroying building by gunpowder or other explosive substance, 1956.

Maliciously throwing into or against building, dwelling-house, ship, &c., any explosive instrument, § 1957.

Throwing oil of vitriol, coal tar, against dwelling-house, office, shop or vessel, § 1958.

New York.

Removing dead body, &c., § 1959.

Purchasing dead body, &c., § 1960.

Opening grave, either to remove dead body or to steal coffin or vestments, § 1961.

Administering poison to horse, cattle, sheep, &c., 1962.

Committing trespass, &c., § 1963.

Physician prescribing poison in state of intoxication, § 1964.

Selling poisonous substance with label, without word "poison" thereon, § 1965.

Overloading vessel so that life is endangered, § 1966.

Ignorantly or by gross neglect, raising steam in order to excel any boat, &c., § 1967.

Maliciously killing, maiming, &c., horse, ox, or other cattle, § 1968.

Reading sealed letter addressed to another, § 1969.

Maliciously publishing any part of such letter, § 1970.

Extent of two last sections, § 1971.

Maliciously destroying public or toll-bridge, § 1972.

(477) Killing a steer at common law.

(478) Altering the mark of a sheep, under the North Carolina statute.
(479)

Second count. Deracing mark.

(480) Entering the premises of another, and pulling down a fence.

(481) Destroying two lobster carts, under the Mass. statute.

(482) Removing a landmark, under the Penn. statute.

(483) Felling timber in the channel of a particular creek, in a particular county, under the North Carolina statute.

(484) Throwing down fence, under Ohio statute.

(485) Breaking into house, and frightening a pregnant woman.

(486) Cutting ropes across the ferry.

(487) Breaking glass in a building.
(488) Burning a record.

Mass. Rev. st., ch. 126, s. 42.

[For several forms of indictments which might be classed under this head, see "Breaches of the Peace," "Assaults," &c.]

(470) Maliciously wounding a cow. (a)

THAT A. B., &c., on, &c., at, &c., one cow, (b) of the price of seven

(Analysis of Malicious Mischief in Wh. C. L.)

Destroying mill-dam, &c., § 1973.

Removing monument erected to designate the extent of any lot, &c., § 1974.

Removing or destroying mile-stone, obliterating or defacing marks on
monument, § 1975.

Mingling poison with food, or poisoning spring or reservoir, § 1976.
Destroying monument or work of art, or ornamental trees, &c., § 1977.
Person liable after conviction to an action in favor of party injured, §
1978.

Pennsylvania.

Removing knocker from door, or cutting or destroying spout, 1979.
Destroying or defacing sign denoting place of business, &c., § 1980.
Destroying rope stretched across river for transporting passengers, § 1981.
Removing landmark, § 1982.

Cutting down timber in land of another, § 1983.

Sureties for appearance, &c., § 1984.

Destroying railroad, edifice, property or work, machinery, &c., owned by

such company, § 1985.

Destroying works belonging to such company, &c., § 1986.

Qui tam action, § 1988.

Maltreating animals, § 1989.

Virginia.

Ohio.

Wilfully destroying ship or vessel, § 1990.

Administering or exposing poison for beast, § 1991.

Maliciously removing or injuring canal, railroad bridge, &c., § 1992.

Unlawfully, but not feloniously defacing or injuring property, real or

personal, § 1993.

Torturing beast, § 1994.

Burning or setting fire to certain personal property, &c., § 1995.

Maliciously setting fire to woods, &c., 1996.

Maliciously destroying animal, property of another, 1997.

Maliciously destroying fruit or other trees in nursery, garden, &c., § 1998.

Felling, boxing or injuring trees of another, § 1999.

Malicious destruction of ornamental trees in a street or upon public ground, § 2000.

Demolishing mile-stone, &c., or guide-board, § 2001.

B. MALICIOUS MISCHIEF AT COMMON LAW, § 2002.

(a) Stark. C. P. 463. As to the validity of this indictment at common law, see Com. r. Leach, 1 Mass. 59; People v. Smith, 5 Cow. 258; Res. v. Teischer, 1 Dall. 335; State v. Council, Tenn. 305; Loomis v. Edgerton, 19 Wend. 419; State v. Wheeler, 3 Verm. 344.

(b) This is a sufficient description; State v. Pearce, Peck. 66. The same precision should be used as in larceny. See Wh. C. L. § 355–63.