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although two decisions had been made by the same court confirming convictions, where the property had been stolen in a sister state, and afterward brought by the thief into that commonwealth. Without overruling the older cases, Chief Justice Shaw, in delivering the opinion of the court, distinguished between the two classes of cases. The following cases are in point, that a state, into which stolen goods are carried by a thief from a sister state, has no jurisdiction to convict for the larceny of the goods, and a fortiori when the goods were stolen in a foreign country.

In New York: People v. Gardiner, 2 Johns. 477; People v. Schenck, 2 Johns. 479. The rule was afterwards changed in that state by statute. New Jersey: State v. Le Blanch, 31 N. J. L. 82. Pennsylvania: Simmons v. Com. 5 Binn. 617. North Carolina: State v. Brown, 2 N. C. 100, 1 Am. Dec. 548. Tennessee: Simpson v. State, 4 Humph. 456. Indiana: Beall v. State, 15 Ind. 378. Louisiana: State v. Reonnals, 14 La. Ann. 276.

There are two cases sustaining convictions for larceny in the states, where the property had been stolen in the British provinces: State v. Bartlett, 11 Vt. 650, and State v. Underwood, 49 Me. 181, 77 Am. Dec. 254; Stanley v. State, 24 Ohio St. 166, 15 Am. Rep. 604.

CHAPTER LIII.

EMBEZZLEMENT, ROBBERY AND BURGLARY.

§ 458. Embezzlement Defined.

459. What must be Established to Warrant Conviction.
460. Evidence of other Fraudulent Acts Admissible.
461. The Term "Robbery" Defined.

462. What Evidence is Competent to Establish.

463. Views of Professor Greenleaf.

464. The Terms "Fear" and "Violence" Considered.
465. Description of Property Stolen not Required.
466. The Terms "Burglary" and "Break" Defined.
467. What the State must Prove.

468. Presumptive Evidence of.

469. What is "Constructive Breaking,"
470. Evidence of Former Attempts.

471. Partial Review of Late Decisions.

$458. Embezzlement Defined. Embezzlement is distinguished from larceny properly so called as being committed in respect of property which is not at the time in the actual or legal possession of the owner. 1 Burrill, Law Dict. 415.

The fraudulently removing and secreting of personal property, with which the party has been entrusted, for the purpose of applying it to his own use. Bouvier, Law Dict. 522.

The chattel, money, or valuable security embezzled by the prisoner must be such as has not come to the possession of his master; if it has come to his possession, the offense is larceny, and not embezzlement. Roscoe, Crim. Ev. 445.

Embezzlement is the fraudulent appropriation of another's property by one who has the lawful custody. It is distinguished from larceny by the fact of lawful custody. It is the peculiar crime of those employed or trusted by others.

This is not a common law offense, but is a general statutory offense. Browne, Crim. L. 48.

Larceny cannot be committed of things that are not the subject of property, as of a dead body. Rex v. Duffin, Russ. & R. 366; King v. Lynn, 2 T. R. 733.

Funds appropriated under a claim of right are not embezzled, and it may be generally affirmed that only such property as can be the subject of larceny is subject to embezzlement. Ross v. Innis, 35 Ill. 487.

459. What must be Established to Warrant Conviction. To warrant the conviction of an agent for the embezzlement of his principal's money, four facts must be established beyond a doubt, to wit: First, The agency whereby the defendant was charged with the duty of receiving the money; Second, His receipt of his principal's money; Third, That he received it in the course of his employment; and Fourth, That he embezzled, misapplied or converted it to his own use. Rapalje, Larceny & Kindred Offenses, § 389, citing Webb v. State, 8 Tex. App. 310.

Under these rules it is apparent that to sustain an indictment for embezzlement against the treasurer of a corporation for the alleged conversion of its moneys, it must be shown that the money came into the possession of the accused or under his control by virtue of his office as treasurer. Bartow v. People, 78 N. Y. 377; United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; Bradtaugh v. Reg. L. R. 3 Q. B. Div. 607.

§ 460. Evidence of other Fraudulent Acts Admissible.Reg. v. Richardson, 2 Fost. & F. 343, was a charge of embezzlement against a clerk who made out weekly accounts of his payments. On three occasions within six months he entered the payments correctly, but, in adding them up, made the totals £2 greater than they were, and took credit for the larger amounts. These were the cases on which the indictment was founded. Evidence that, on a series of occasions before and afterwards, precisely similar errors had been made and advantage taken of by him, was received to show that the errors in the three instances to which the indictments related were intentional and fraudulent, and not accidental. Com. v. Tuckerman, 10 Gray, 173, 200, was a charge of embezzlement. The court said: "Where the intent of the accused party forms any part of the matter in issue, evidence may always be given of other acts not in issue, provided they tend to establish the intent imputed to him in committing the act." Com. v. Shepard, 1 Allen, 575, 581, was another case of embezzlement. It was held that evidence of another act of embezzlement by the defendant, during the same week, was competent on the question of intent.

§ 461. The Term "Robbery " Defined.-"Robbery is the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person or property, or the person or property of a relative or member of his family, or of any one in his company at the time of the robbery. To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking. If employed merely as a means of escape it does not constitute robbery. The degree of force is immaterial." N. Y. Penal Code, §§ 224, 225. See People v. Foley, 9 N. Y. S. R. 24.

"The felonious and forcible taking from the person of another, of goods or money to any value, by violence or putting him in fear." 4 Bl. Com. 242. See also Bloomer v. People, 1 Abb. App. Dec. 146.

§ 462. What Evidence is Competent to Establish.-Evidence is competent which shows the snatching a thing from the hands of another, accompanied with violence, or threats creating apprehensions of bodily harm, or resistance however slight, as this constitutes robbery. Evans v. State, 80 Ala. 4.

The supreme court of Iowa in a recent case (State v. Calhoun, 72 Iowa, 432) in passing upon the merits of certain instructions given by the trial court to the jury, has established certain propositions relating to the crime of robbery that directly involve positive rules of evidence. The court says: "It is not necesssary, in order to constitute a stealing and carrying away in the immediate presence of said Nellie Baldwin,' that it should have been done (if done) in her immediate view, or where she could see it done. And if you find from the evidence, beyond a reasonable doubt, that the defendant made a violent assault upon said Nellie, by choking her and causing her to fall upon the floor of one of the rooms or apartments of her house, and then tied her hands and feet for the purpose and with the intention of stealing some money or property in the house; and you further so find that she, through fear of personal violence, told defendant where her money or watch was in an adjoining room or rooms; and you further so find that thereupon defendant passed through a door or doors into such room or rooms, and did there, within hearing of said Nellie Baldwin, take and carry away from said room or

rooms the property described in the indictment, or some part thereof; and you further so find that such property was under her immediate control, and that such taking, if any, was against the will of the said Nellie Baldwin, and was without any right, or claim of right, of defendant in said property, and with the intent to deprive her thereof,-then and in such case there would be a sufficient stealing and taking from the 'immediate presence' of the said Nellie Baldwin within the meaning of the law."

Evidence of the mere snatching of anything from the hand of another in the absence of any struggle or resistance by the owner or any force or violence on the part of the thief is insufficient proof of robbery. McCloskey v. People, 5 Park. Crim. Rep. 299; People v. Hall, 6 Park. Crim. Rep. 642; People v. McGinty, 24 Hun, 64. The evidence must disclose the felonious intent, and as in cases of larceny, the taking of the property must be animo furandi.

Where a scuffle takes place between the prosecutor and the accused, in the course of which the former was deprived of a ruling measure, his hat, and a quantity of articles out of his pockets, which were afterwards found by the roadside; but as it turned out that he was tipsy at the time, and the articles might have been lost in the struggle, without any intent of felonious appropriation on the prisoner's part, he was acquitted. Bruce's Case, Alison, Prin. Crim. Law of Scotland, 358.

Mere trick or contrivance by which possession of the property is obtained, if unaccompanied by violence, will not amount to robbery. Huber v. State, 57 Ind. 341.

The taking of property from the person of another is robbery, when it appears that although the taking was fully completed without his knowledge, such knowledge was prevented by the use of force or fear.

The violence contemplated means more than a simple assault and battery. It must be sufficient to force the person to part with his property not only against his will but in spite of his resistance. McCloskey v. People, 5 Park. Crim. Rep. 299.

Secretly picking a pocket is no robbery. The victim must be under the influence of fear. Norris' Case, 6 City Hall Rec. 86; Mahoney v. People, 5 Thomp. & C. 329.

Upon a trial for robbery in the first degree, the taking of property from the person by force and violence was clearly proved. A strong array of circumstances was proved, pointing to the

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