CHAPTER XXVIII. Section 505. Definition. 506. A statutory offense. EMBEZZLEMENT. 507. Origin of the English statute. 508. American statutes. 509. Scope of the statutes. Section 511. The fraudulent intent. 512. Intent or offer to return prop erty. 513. Ownership of the property in another. $10. Receiving the property by 514. Money paid or property devirtue of the employment. livered by mistake. 505. Definition.-Embezzlement is the wrongful appropriation, animo furandi, of the personal property of another by one to whom the possession has been entrusted by the owner. The gist of the offense is breach of trust.1 § 506. A statutory offense.-Embezzlement is not a crime at common law. The original English statute making this offense a crime was passed the last year of the eighteenth century. This statute provides as follows: "Whereas, bankers, merchants and others, are, in the course of their dealings and transactions, frequently obliged to entrust their servants, clerks, and persons employed by them in the like capacity, with receiving, paying, negotiating, exchanging or transferring, money, goods, bonds, bills, notes, banker's 1 State v. Burgess, 268 Mo. 407, 188 S. W. 135; People v. Knox, 32 Cal. App. 158, 162 Pac. 407; Ambrose v. United States, 45 App. D. C. 112; People v. Scudder, 163 N. Y. S. 739, 177 App. Div. 225; McCoy v. State, 9 Ga. App. 32, 90 S. E. 737. 2 State v. Burgess, 268 Mo. 407, 188 S. W. 135. drafts and other valuable effects and securities; and, whereas, doubts have been entertained whether the embezzling of the same by such servants, clerks and others, so employed by their masters, amounts to felony by the law of England, and it is expedient that such offenses should be punished in the same manner in both parts of the united kingdom; be it enacted and declared by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that if any servant or clerk, or any person employed for the purpose in the capacity of a servant or clerk, to any person or persons whomsoever, or to any body corporate or politic, shall, by virtue of such employment, receive or take into his possession any money, goods, bond, bill, note, banker's draft, or other valuable security, or effects, for or in the name or on the account of his master or masters, or employer or employers, and shall fraudulently embezzle, secrete, or make away with the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master or masters, employer or employers, for whose use or in whose name or names, or on whose account the same was or were delivered to, or taken into the possession of such servant, clerk, or other person so employed, although such money, goods, bond, bill, note, banker's draft, or other valuable security, was or were not otherwise received into the possession of his or their servant, clerk, or other person so employed; and every such offender, his adviser, procurer, aider, or abettor, being thereof lawfully convicted or attainted, shall be liable to be transported to such parts beyond the seas of his majesty, by and with the advice of his privy council, shall appoint, for any term not exceeding fourteen years, in the discretion of the court before whom such offender shall be convicted or adjudged.”2a 2a 39 Geo. III, ch. 85. See gener ally note to 87 Am. St. 21. § 507. Origin of the English statute.-The statute quoted in the preceding section was enacted in consequence of the decision in Bazeley's Case. In that case the chief teller of a bank received from a customer one hundred thirty-seven pounds for deposit to his credit. The teller gave the customer credit for the amount in his passbook, put one hundred pounds of the money in his own pocket and deposited the balance in the money drawer of the bank. All the judges agreed that it was not felony for the reason that the one hundred pounds was never in the possession of the bank, distinct from the possession of the defendant. § 508. American statutes.-Statutes have been enacted in this country similar to the English statute. They vary more or less, however, and as penal statutes are strictly construed the one involved in the particular case should be carefully studied. As a rule, these statutes are aimed at servants, clerks and agents who wrongfully appropriate to their own use property which they have received in the course of their employment for their master or principal, and also as trustees, who violate their trust by wrongfully appropriating property in their possession belonging to another. In several states a public officer who does not pay over to his successor all public moneys in his hands at the end of his term, is guilty of embezzlement.3a § 509. Scope of the statutes.-The purpose of the embezzlement statutes is to supply a defect of the common law. In a Massachusetts case the court remarks: "The statutes relating to embezzlement, both in this country and in England, had their origin in a design to supply a defect which 3 East P. C. 571, 2 Leach 973. 3a State v. Ensley, 177 Ind. 483, 97 N. E. 113, Ann. Cas. 1914 D, 1306; United States v. Davis, 243 U. S. 570, 37 Sup. Ct. 442, 61 L. Ed. 906; Cowart v. State (Ala. App.), 75 So. 711; Commonwealth v. Sitler, 67 Pa. Sup. Ct. 1; Parker v. State, 130 Ark. 234, 197 S. W. 283. was found to exist in the criminal law. By reason of nice and subtle distinctions, which the courts of law had recognized and sanctioned, it was difficult to reach and punish the fraudulent taking and appropriation of money and chattels by persons exercising certain trades and occupations, by virtue of which they held a relation of confidence or trust toward their employers or principals, and thereby became possessed of their property. In such cases the moral guilt was the same as if the offender had been guilty of an actual felonious taking; but in many cases he could not be convicted of larceny, because the property which had been fraudulently converted was lawfully in his possession by virtue of his employment, and there was not that technical taking or asportation which is essential to the proof of the crime of larceny." It follows, therefore, that common-law larceny and statutory embezzlement do not overlap. In other words, the former can not be the latter. This is Wharton's view,5 and it is also supported by the great weight of authority. Bishop, however, takes the contrary view. § 510. Receiving the property by virtue of the employment. The original English statute provided that the property fraudulently appropriated by the wrongdoer must have been received by him "by virtue of his employment." Owing to confusion caused by this phrase, however, a later statute omits it, and provides instead that the "chattel, money or valuable security *** shall be delivered to or received or 4 Commonwealth v. Hays, 14 Gray (Mass.) 62, 74 Am. Dec. 662, Derby's Cases 488. 5 Whart. Crim. L. (11th ed.), §§ 1256, 1275, 1276, 1294. See also, Colip v. State, 153 Ind. 584, 55 N. E. 739, 74 Am. St. 322, Derby's Cases 491. 6 Rex v. Headge, Russ. & Ry. 160; Rex v. Sullens, 1 Mood. Cr. C. 129; Commonwealth v. Davis, 104 Mass. 548; Lowenthal v. State, 72 Bish. New Crim. L. 8th ed.), §§ 328, 329. taken into possession by him, for or in the name or on account of his master or employer." Thus the operator of a barge under the direction of its owner who hauled a load against the owner's express orders and kept the money was not guilty of embezzlement, because the money was not received by the defendant "for or in the name or on account of his master or employer," as provided by statute. Nor was a miller in a county jail so guilty, whose duty was to grind grain when ordered to do so by the governor of the jail, receive the money for so doing and account for the same, and who ground grain without being ordered to do so, received the money for so doing and appropriated it to his own use.9 In this country, however, the courts very generally hold that the property must be received by the wrongdoer by virtue of his employment. "The term, agent. or servant, as used in the statute, imports the correlative idea of a principal, or master, and 'implies employment, service, delegated authority, to do something in the name or stead of the principalan employment by virtue of which the money or property came into his possession.' "10 In this case the defendant was convicted of embezzling money which the indictment alleged came into his possession by virtue of his employment as servant or agent of one Rainer. The proof showed that the defendant, while acting in the capacity of mail carrier, fraudulently appropriated three hundred ninety-five dollars 8 Reg. v. Cullum, 12 Cox Cr. C. 469, L. R. 2 C. C. 28, 42 L. J. M. C. 64, 28 L. T. 571, 21 W. R. 687, Derby's Cases 486. 9 Reg. v. Harris, 6 Cox Cr. C. 363, 23 L. J. M. C. 110. But see, Hartnett v. State, 56 Tex. Cr. 281, 119 S. W. 855, 23 L. R. A. (N. S.) 761, 133 Am. St. 971. 10 Brewer v. State, 83 Ala. 113, 3 So. 816, 3 Am. St. 693. See also, Commonwealth v. Williams, 3 Gray (Mass.) 461; Rex v. Snowley, 4 Car. & P. 390; Rex v. Hawtin, 7 Car. & P. 281; State v. Goode, 68 Iowa 593, 27 N. W. 772; Brady v. State, 21 Tex. App. 659, 1 S. W. 462; State v. Casey, 207 Mo. 1, 123 Am. St. 367, 13 Ann. Cas. 878; Smith v. State, 53 Tex. Cr. 117, 109 S. W. 118, 15 Ann. Cas. 435, 17 L. R. A. (N. S.) 531. |