A, a carman, received money for coals and appropriated it. This was not embezzlement, as the money was not the money of B, but of the railway company.

(3.) 1 A, a bargeman, was forbidden by B, his master, to take a cargo on his barge on part of a particular voyage. A took the cargo, appropriated the freight to himself, and denied the receipt of it when questioned by his master. The person from whom he took the cargo and freight knew of no one in the transaction except A. This was not embezzlement, as the freight did not belong to B.

(4.) 2 A, intrusted with a cheque for B, gets it cashed by a friend, and not, as was the regular course, at a bank, and appropriates the proceeds. This is embezzlement.

ARTICLE 337.

DISTINCTION BETWEEN EMBEZZLEMENT AND OTHER KINDS OF

THEFT.

The distinction between embezzlement by a clerk or servant and other kinds of theft is, that in other kinds of theft the property stolen is taken out of the possession of the owner, whereas, in embezzlement by a clerk or servant the property embezzled is converted by the offender whilst it is in the offender's possession on account of his master and before that possession has been changed into a mere custody.

Illustrations.

(1.) 3 A, B's servant, has authority to take orders, but none to send out goods from B's shop. A takes an order for pickles and treacle, enters in his master's book an order for pickles only, takes from the shop and delivers to the customer both pickles and treacle, and keeps the price of the treacle. This is a theft of the treacle, as A had no authority to deliver it, but it is not an embezzlement of the price, as it was not received on B's account, but in fraud.

4

(2.) * A, a clerk to a navy tailor goes on board a man-of-war

1 R. v. Cullum, 1873, 2 C. C. R. 28.

2 R. v. Gale, 1876, 46 L. J. (M. C.) 134.

3 R. v. Wilson, 1839, 9 C. & P. 27. The prisoner having been indicted for embezzlement escaped.

4 R. v. Hawkins, 1850, 1 Den. C. C. 584.

with clothes delivered to him by his master to sell to the marine artillerymen on board. He afterwards enters as a seaman on another ship, carrying off the clothes. A commits theft, and not embezzlement.

(3.)1 A, the manager of a branch bank, has in his office a safe, the property of the bank, and of which the bank manager keeps the key at the head office. A's duty is to put money

received during the day into this safe.

He takes part of it out

of the safe and applies it to his own purposes. and not embezzlement.

2

This is theft,

(4.) A's duty is to get bills accepted and discounted for his master. A having got a bill accepted for his master, lays it with other bills on his master's desk. He then takes it from his master's desk, gets it cashed, and appropriates the money. This is theft.

(5.) A receives from his master B, dock warrants enabling him to get property from the docks, and is induced by B to carry the property to London. A on the road appropriates part

of the property. This is theft.

(6.) A, B's servant, is sent by B to fetch 240 quarters of oats, which B has purchased, and which are lying on a vessel in the Thames. Whilst the oats are being measured into B's barge, A causes five quarters to be put up in sacks and set aside, the rest being loose. A then sells the sacks of oats for his own benefit from the vessel, and before they were put into the barge. This is theft.

(7.) 5 A, B's servant, gets plate for his master from a silversmith, puts it in B's plate-chest, and then takes it out and appropriates it. This is theft. [ If he appropriates it before he puts it into the plate-chest, he commits embezzlement.]

(8.) A, B's servant, receives from C, a fellow-servant, £3 of B's money, and appropriates 10s. to his own use. This is not

embezzlement [but is theft.]

(9.) 8 A, a banker's clerk, whose business it is to receive notes

1 R. v. Wright, 1858, D. & B. 431.

2 Chipchase's Case, 1795, 2 Lea. 699.

3 R. v. Norral, 1844, 1 Cox, C. C. 95.

4 Abraham's Case, 1798, 2 East, P. C. 569; 2 Russ. Cr. 313.

5 Per Coleridge, J., in R. v. Watts, 1850, 2 Den. at p. 19.

6 A dictum of Wilde, C.J., in R. v. Watts seems to say the opposite, but if this were so, the whole distinction between embezzlement and theft would be taken away (as no doubt it ought to be as a matter of common sense). See Mr. Greaves' remarks on Wilde, C.J.'s dictum and on the whole case of R. v. Watts, 2 Russ. Cr. 323, notes (s) and (t).

7 R. v. Murray, 1830, 2 Russ. Cr. 314; 5 C. & P. 145; 1 Moody, 276. 8 Bazeley's Case, 1799, 2 Lea. 835; 2 East, P. C. 571. This case

over the counter and put them in a drawer, receives a note for £100 from the servant of a customer, and appropriates it to himself without putting it into the drawer. This is not theft at common law, but is embezzlement.

ARTICLE 338.

EVIDENCE AS TO EMBEZZLEMENT.

1 The inference that a prisoner has embezzled property by fraudulently converting it to his own use, may be drawn from the fact that he has not paid the money ór delivered the property in due course to the owner, or

from the fact that he has not accounted for the money or other property which he has received, or

from the fact that he has falsely accounted for it, or from the fact that he has absconded, or

2 from the fact that upon the examination of his accounts there appeared a general deficiency unaccounted for;

3 but none of these facts constitutes in itself the offence of embezzlement, nor is the fact that the alleged offender rendered a correct account of the money or other property intrusted to him inconsistent with his having embezzled it.

occasioned the passing of the 39 Geo. 3, c. 85, now re-enacted in substance by 24 & 25 Vict. c. 96, s. 68.

1 These facts are the common evidence of embezzlement given in every instance, and require no illustration. That the non-payment is only by way of delay, the false accounting a mistake, &c., are common topics of defence.

2 R. v. Grove, 1835, 1 Moody 447; 2 Russ. Cr. 377-380. The authority of this case, decided by eight judges to seven, has been doubted. See R. v. Moah, 1856, D. & P. 626, 639: see, too, R. v. Lambert, 1847, 2 Cox, C. C. 309; R. v. Lloyd Jones, 1838, 8 C. & P. 288; R. v. Chapman, 1843, 1 C. & K. 119; R. v. King, 1871, 12 Cox, C. C. 73.

3 R. v. Hodgson, 1828, 3 C. & P. 422; R. v. Winnall, 1851, 5 Cox, C. C. 326. Mr. Greaves' note, 2 Russ. Cr. p. 371, on this case disapproves of the summing-up of Erle, J., on what appears to me to be a misconception of its purport. Mr. Greaves' view that the fraudulent conversion constitutes the offence, and that everything else is only evidence of it is obviously correct; but I think that Erle, J., did not mean to say anything inconsistent with this. Wilful false accounting is now a substantive offence. See 38 & 39 Vict. c. 24, s. 2, and Article 381, post.

4 R. v. Guelder, 1860, Bell, C. C. 284; R. v. Lister, 1856, D. & B.

CHAPTER XXXVIII

1 ROBBERY AND EXTORTION BY THREATS

2 ARTICLE 339.

ROBBERY.

EVERY one is guilty of felony and is liable upon conviction thereof, to be kept in penal servitude in the case of the offences defined in clauses (a.) and (b.) for life, in the case of the offence defined in clause (c.) for fourteen years, and in the case of the offence defined in clause (d.) for five years, who does any of the following things (that is to say),

3

(a.) who, being armed with any offensive weapon or instrument, robs any person, or

being together with any person or persons, robs or assaults with intent to rob any person, or

3

(b.) who robs any person, and at the time of, or immediately before, or immediately after such robbery, wounds, beats, strikes, or uses any other personal violence to any person, or

(c.) who robs any person, or

5

(d) who assaults any person with intent to rob.

ARTICLE 340.

EXTORTION BY THREATS.

Every one commits felony and is liable upon conviction

13 Hist. Cr. Law, 149-150. Draft Code, Part XXVII., ss. 288-296. 2 For definition of robbery, and illustrations as to the nature of the fear and violence involved, see Article 322.

3 24 & 25 Vict. c. 96, s. 43. Offenders against this section are liable, if males, to be thrice privately whipped in addition to the other punishments above specified. 26 & 27 Vict. c. 44, s. 1. As to the manner of inflicting this punishment, see Article 12 (d.), ante. 4 24 & 25 Vict. c. 96, s. 40.

5 Ibid. s. 42.

thereof to penal servitude for life in cases a. i., a ii., b and c, for ten years in case a. iii., and five years in case d, who

(a.) sends, delivers, utters, or directly or indirectly causes to be received, knowing the contents thereof, any letter or writing

of

any

1

(i.) 1 demanding any valuable thing of any person with menaces, and without any reasonable and probable cause; (ii.)2 accusing, or threatening to accuse, any other person crime punishable by law with death or penal servitude for not less than 3 seven years, or of any assault with intent to commit any rape, or of any attempt or endeavour to commit any rape, or of any infamous crime, with a view or intent to extort or gain any valuable thing from any person by means of such letter or writing;

4

(iii.) threatening to burn or destroy any house, barn, or other building, or any grain, hay, or straw, or other agricultural produce in a rick or stack, or in or under any building, or any ship, or vessel, or to kill, maim, or wound any cattle;

or

6

(b.) who accuses, or threatens to accuse, any person whatever of any of the crimes specified in a. ii., with the view or intent to extort or gain any valuable thing from any person whatever, or

7

(c.) who, with intent to defraud or injure any other person, compels or induces any person to deal with any valuable security in any of the manners mentioned in note 8,8

1 24 & 25 Vict. c. 96, s. 44, W. See ante, p. 256, Article 322, Illustration (7).

2 Ibid. s. 46, W.

3 This must mean penal servitude for seven years or more. There is no crime for which penal servitude for seven years is a minimum punish

ment.

4i.e. buggery, committed either with mankind or beast, every assault with intent to commit the same, every attempt or endeavour to commit the same, every solicitation, persuasion, promise, or threat offered or made to any person whereby to move or induce such person to commit or permit the same (Ibid. c. 96, s. 46).

5 24 & 25 Vict. c. 97, s. 50, W.

624 & 25 Vict. c. 96, s. 47, W. An intent to compel a person by threats to buy a mare is within this section. R. v. Redman, 1865, 1 C. C. R. 12.

7 Ibid. s. 48, S.

Execute, make, accept, indorse, alter, or destroy the whole or any