use any money, goods, rights in action, or valuable security or effects. belonging to any other person or persons, etc., which shall come to his possession or care by virtue of such employment, etc., shall be punished as for larceny, etc. This peculiar element of this offense seems, however, to have been eliminated from our law by the enactment under which the present indictment was framed. It simply provides that an agent, etc., who embezzles or converts to his own use "anything of value which shall come into his possession by virtue of his employment" shall be punished as for larceny of the thing embezzled. The words "property of another" are omitted. The element of exclusive ownership by another person is wholly eliminated, and the test of the crime is that the property converted shall come to the hands of the offender by virtue of his employment as agent, etc. If we are to have regard to the plain provision of this statute, the fact that an agent who converts the assets of an association to his own use may be interested in them is not by that fact to be permitted to say that he is the owner of them, and cannot be held to answer for converting the "property of another." The general ownership was undoubtedly in the association. It was clearly established in the trial below that by the articles of association, to which the defendant became a party, and under which he was chosen its agent and cashier, he had no right by reason of his relation as a shareholder to the possession of a dollar of its assets. If it had been within the intent of the members of the general assembly to declare that the very act with which the defendant was charged should constitute the crime of embezzlement, they could not easily have chosen more appropriate language. If this language be accepted at its palpable import, it may, without violence or any strained construction, be held as intended to prevent a mere shareholder in a private business association, who is made its sole manager and the sole custodian of its property, converting to his own use its entire capital and assets, by declaring such conversion to be a crime. The law of embezzlement is statutory. The offense was unknown to the common law. The statutes on the subject differ in the different states. It has been well observed by Bishop (2) Cr. L. § 326): "Seeing that the statutes are numerous, and in some respects diverse in their provisions, the practitioner should be cautious about coming to conclusions upon a question under the law of embezzlement, unless, when he examines a decision relied upon, he first sees whether the statute on which it was rendered is, in its terms, the same with the one of his own state." Griffin v. S., 4 Tex. App. 390, 409. The cases cited in support of the action of the court below, when subjected to this test, fail to meet the question involved. The case of S. v. Kent, 22 Minn. 41, upon which most reliance is placed, arose upon a statute declaring the conversion by an agent, etc., of "any money or property of another" which had come to his possession by virtue of his employment, to be a crime. The case turns upon the words above quoted. The facts which the

indictment charges, and which the evidence below tended to establish, considered in the light of the statute under which the prosecution was had, leave no place for the application of the familiar fiction that the interest of a partner in and his dominion over the firm property is such that he cannot be guilty of larceny or embezzlement by converting it to his own use. Exceptions sustained. S. v. Kusnick, 45 Ohio St. 535, 15 N. E. 481, 4 Am. St. Rep. 564.

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As to larceny of property in which the thief has an interest, see § 136.

RECEIVING STOLEN GOODS.

§ 153. The Statutes.

Statute 3 William & Mary (1691), c. 9, § 4. And for as much as thieves and robbers are much encouraged to commit such offenses, because a great number of persons make it their trade and business to deal in the buying of stolen goods; be it therefore enacted by the authority aforesaid, That if any person or persons shall buy or receive any goods or chattel that shall be feloniously taken or stolen from any other person, knowing the same to be stolen, he or they shall be taken and deemed an accessary or accessaries to such felony after the fact, and shall incur the same punishment as an accessary or accessaries to the felony after the felony committed.

Statute 7 & 8 Geo. IV. (1827), c. 29, § 54. With regard to receivers of stolen property, be it enacted, That if any person shall receive any chattel, money, valuable security, or other property whatsoever, the stealing or taking whereof shall amount to a felony, either at common law, or by virtue of this act, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of felony, and may be indicted and convicted either as an accessary after the fact, or for a substantive felony.

§ 154. "Receive."

(Eng. Old Bailey, 1834.) Without Bargain or Profit. Four were indicted for stealing from St. Philip's chapel, and one for receiving the goods. As to the last, TAUNTON, J., said to the jury: Whether he made any bargain or not is a matter of no consequence. If he received the property for the mere purpose of concealment without deriving any profit at all he is just as much a receiver as if he had purchased it. It is a receiving within the meaning of the statute. R. v. Richardson, 6 Car. & P. 335, B. 758, C. 465.

(Mass. Sup. Judicial Ct., 1875.) Same. Complaint under Gen. St. c. 161, § 43, for receiving a pair of eye-glasses, knowing them to

have been stolen. The evidence tended to show, and defendant asked the court to charge that if defendant received them from the thief as a mere friendly act, to aid him in concealing them, and without any benefit or intent to receive benefit on his part, he could not be convicted. The court instructed that the motive was immaterial if he received them knowing them to have been stolen and to aid in concealing them. Verdict, guilty. Defendant excepted. ENDICOTT, J. The statute provides that whoever receives or aids in the concealment of stolen goods, knowing the same to have been stolen, shall be punished. Gen. Sts. c. 161, § 43. The ruling at the trial was. correct. There was evidence that the defendant received the eye-glasses from Daniels, knowing them to have been stolen, and aided Daniels in their concealment. That he did this as a friendly act to Daniels without any benefit or intent to receive benefit himself is immaterial. Exceptions, overruled. C. v. Bean, 117 Mass. 141, C. 465.

(Eng. Assize, 1844.) Taking from Thief's Deposit. Leigh was indicted for receiving stolen goods, knowing them to be such. Wade and Kenyon stole the goods, buried them in a cellar near Leigh's house, told him where to find them, and he had his wife get and take them to a pawnshop. POLLOCK, C. B. I doubt whether, when the possession has been transferred by an act of larceny, the possession can be considered to remain in the owner. Were it so, then every receiver of stolen goods, knowing them to be stolen, would be a thief; and so on, in series from one to another, all would be thieves. If this was an act done by the prisoner (Leigh) in opposition to Wade, or against his will, then it might be a question whether it were a receiving. But if Leigh took the articles in consequence of information given by Wade, Wade telling Leigh in order that the latter might use the information by taking the goods, then it is a receiving. Verdict, guilty. R. v. Wade, 1 Car. & K. 739, B. 758, C. 441, F. 314.

(Eng. C. C. R., 1850.) Taking Thief with Goods into House to Bargain for Them. Straugham, Williamson, and Wiley were jointly indicted for stealing and receiving 9 ducks; contrary to 8 G. 4, c. 20, § 54, and the first two were convicted of stealing, and Wiley of receiving them. On case reserved, it was twice argued as to whether the evidence showed a receiving by Wiley, and after consultation and deliberation the judges delivered their opinions seriatim. MARTIN, B. Now, the question is, What is the meaning of the word "receive" as applied to the facts of this case? I understand the facts to be these: Two men stole some fowls, which they put into a sack, and carried to the house of Wiley's father, for the purpose of selling them to Wiley. All three went together from the house to an outhouse; the bag was carried on the back of one of the thieves; and when the policeman went in, the

sack was found lying on the floor unopened, and the three men around it as if they were bargaining, but no words were heard. Now, I am of the opinion that Wiley, under those circumstances, never did receive those fowls. TALFOURD, J. I am also

of opinion that this conviction is wrong. The question turns on the word "receive" as applied to the facts of this case; and it seems to me that the magistrate gave an improper direction to the jury on that subject, because he told them that the taking by Wiley of the two thieves with the stolen goods in the manner stated, to a stable over which he had control, for the purpose of trafficking as to the purchase of the stolen property, was a receiving within the statute; and I think it was not. The persons asserting the right of possession at that time were the two thieves; and the position of Wiley, as a person negotiating for the purchase, excludes the idea of his having any possession. There was still for him a locus penitentiæ; he might still have determined not to take the fowls; and the whole matter was, I think, inchoate and incomplete. PARKE,

B. * ** The only question is, whether by letting the thieves with the goods into the stable, he received the goods. I think that there must be a receiving of the goods into possession as distinct in some way from the receiving of the thief; and that the receiving of the thief with the goods into a house is not a receiving of the goods within the statute, in a case like this, any more than it would be in the case of a thief received into a house with a stolen watch in his pocket. [Alderson, B., Patteson, J., Coleridge, J., Maule, J., and Platt, B., read similar opinions.]

ERLE, J. I am of opinion that the conviction was right on two grounds: 1. Upon the facts found and left to the jury, I think that Wiley co-operated with the thieves in removing the stolen property from the house to the stable, which was under his control, for the purpose of more securely bargaining and evading the officers of the law. If Wiley had actually taken part in carrying the goods, I believe in the minds of many of the judges there would be no doubt that he had had a joint possession with the thieves, which would be sufficient to convict him of the present charge; and as he accompanied them, and lighted them to the stable, I think he did co-operate with them in transporting the goods as much as if he had helped to carry them. I found my opinion on the law, which has often been laid down, that where goods are stolen, and the removal from the owner's premises is complete, and the thief afterwards procures somebody to assist him in removing them again to a place of greater security, the person who so removes them is not liable to be convicted of larceny, because by the first removal the larceny was complete. A person who so cooperates is certainly a criminal within the intention of the law, and I think that the law is strong enough to reach him as a receiver of stolen goods. That is one ground of my opinion; but I also attach a wider meaning to the word "receive" than some of my learned

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brothers are disposed to give to it. It appears to me that, with reference to acts of felonious receiving or taking, the rules of the civil law relating to possession have no application. Originally the person who received and assisted a thief, after he had committed a larceny, was held to be an accessary after the fact; but then several statutes were passed, in consequence of the imperfect state of the law, which only rendered a person punishable who harbored the thief. By those statutes the guilty receipt of the stolen property was made punishable; and I think that the word "receive, applied to the goods, ought to be construed with reference to the other offense of harboring the thief. If a man harbors a thief with a view in any way to assist his escape, he is guilty; and so, I think, if he harbors the goods for the purpose of assisting the thief, he is guilty of a felonious receiving within the meaning of the statute. If the owner of a stable authorizes thieves to deposit in that stable stolen goods, he is guilty of receiving them. That proposition by itself would probably not be contested; and I think that, if he authorizes the thieves to go into the stable with the stolen goods, he is not the less a receiver because the thieves stay with the property. The earlier statutes clearly did not contemplate a bargain or consent to the transfer of the stolen property as essential to the offense of receiving; for both in the 29 Geo. II. c. 30, and 2 Geo. III. c. 28, the crime of receiving is expressed thus: "Every person who shall privately buy or receive any stolen lead, etc., by suffering any door, window, or shutter to be left open or unfastened between sun-setting and sun-rising, for that purpose;" so that the offense there contemplated involved no communication with the thief at all after he had possession of the stolen goods, but applied to the practice of leaving open a place of deposit previously known to the thieves. Such a case is certainly within the mischief of the statute; and in 2 East P. C. 765 it is expressly laid down "that in order to constitute a receiver, generally so called, it is not necessary that the goods should be actually purchased by him; neither does it seem necessary that the receiver should have any interest whatever in the goods; it is sufficient if they be in fact received into his possession in any manner malo animo, as to favor the thief. [Lord Campbell, C. J., and Williams and Cresswell, JJ., also read dissenting opinions.] Conviction reversed. R. v. Wiley, 4 Cox C. C. 412, 20 L. J. m. c. 4, 15 Jur. 134, 2 Den. C. C. 37, T. & M. 367, 1 Eng. L. & Eq. 567, 1 B. & H. 582, C. 445, Ke. 361, 5 L. 643, Mi. 895.

(Ir. C. C. R., 1854.) By Servant. On conviction of receiving stolen goods, it appeared on case reserved, that Ellen Connors stole goods and brought them to defendant's shop, who ordered her servant to take them to a pawn shop, return with the money, and give it to Connors, which was done. LEFROY, C. J. It appears to us that it was virtually a receiving by Mary Miller, inasmuch as her servant, by her order and direction, received the goods

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