bezzled," but omitting the word feloniously; and so it concluded that the jurors say that he did "feloniously embezzle, steal, take, and carry away, &c. ;" objection was made, that in the introductory part of the indictment it was not alleged that he did feloniously embezzle, &c., and that therefore the indictment failed to shew that he had committed a felony, and that, unless it was so shewn in the body of the indictment, it was not enough that it was so alleged in the conclusion of it. The Judges, however, considered it to be sufficient that it was stated in the conclusion; and the indictment was holden good. (1)

the conclusion
was, that the
prisoner
loniously did
steal, take,
&c.," the in-
dictment was
holden good.

A count containing three charges of embezzlement, and not al

three sums

were embezzled within six calendar

months, is bad.

A count containing three charges of embezzlement, and not alleging that the sums of money were embezzled within six calendar months is bad. The indictment alleged that the prisoner, on the 15th day of November, 5 Victoria, was servant to H. Hodges, and did then leging that the and there by virtue, &c., receive 27. 1s. 6d. on account of his master; and that the prisoner afterwards and within the space of six calendar months, to wit, on the 16th day of November, in the year aforesaid, did receive the further sum of 21. 3s. on account, &c.; and that the prisoner, afterwards and within the space of six calendar months from the day first aforesaid, to wit, on the 17th of November in the year aforesaid, did receive the further sum of 21. 1s. on account, &c.: and that the prisoner on the several days aforesaid, in the year aforesaid, the said several sums of money respectively received by him on each of those days as aforesaid, feloniously did embezzle; and so the jurors do say that the prisoner in manner and form aforesaid, feloniously did steal the said several sums of money, against the form of the statute. Upon demurrer, it was objected that the indictment was bad; 1st, because it contained three offences in one count; whereas the statute only authorized the inserting three offences in three different counts. 2ndly, that it did not shew that the three offences were committed within six calendar months; for although the receipt of the money might be within six calendar months, the embezzlement might not be within that period. 3rdly, that the indictment charged a joint stealing on three different days. And lastly that there was only one contra pacem to three different offences. And the indictment was held bad. At common law it would have been bad, because the contra pacem could not be applied to one more than to another of the offences charged: and it was not rendered good by the 7 & 8 Geo. 4, c. 29, s. 48. Under that section it was necessary to allege that the embezzlements were within six calendar months; now the offence is not the receipt of the money, but the embezzlement of it, and in this case, although there was an averment that the monies were received within six calendar months, there was no allegation that they were embezzled within that period; and therefore the indictment was bad. (m)

Description of

We have seen that the 7 & 8 Geo. 4, c. 29, s. 48, provides that in

(1) Rex v. Crighton, cor. Thomson, B., Lancaster Sum. Ass. 1803, and before the judges, Mich. T. 1803, MS. Bayley, J., and Russ. & Ry. 62. Rex v. Johnson, 3 M. & S. 540.

(m) Reg. v. Purchase, Gloucester Spr. Ass. 1842, MSS. C. S. G. Patteson, J., after consulting Cresswell, J. The very learned judge expressed no decided opinion whether or not three offences could be

included in one count, but said that the safer course was to have three separate counts. His lordship cited a case of Reg. v. Jeyes, where an indictment, exactly the same as the one in this case, except that the words" within six calendar months," were not introduced, had been held bad by Lord Abinger, C. B., and himself, at Warwick. C. S. G.

every

indictment, except where the offence relates to some chattel, the thing emit shall be sufficient to allege the embezzlement to be of money, with- bezzled. out specifying any particular coin, or valuable security. Where the offence relates to some chattel, the same description as in larceny will be sufficient. (n)

As an indictment for embezzlement is so general as to afford no infor- Bill of parmation to the prisoner of the precise sums embezzled, or of the persons ticulars. from whom they were received, the prisoner is entitled to be furnished by the prosecutor with a particular of the charges intended to be made; and if the prosecutor refuse to give such particular, the court on motion, founded upon affidavit, will order a particular to be given, and such particular should contain the names of the persons from whom the sums of money are alleged to have been received. (0)

Where there is only one count, and the prisoner has received different sums on different days, amounting to the sum laid in that count, the prosecutor must elect one sum, and confine his evidence to that sum. Upon an indictment for embezzling 11s. 10d., it appeared that the prisoner had received money in different sums, upon different days, amounting in the whole to the sum mentioned in the indictment, and it was held that the prosecutor must select one sum received on one particular day, and confine his evidence to that sum. (p)

Two cases occurred upon the repealed statute, 39 Geo. 3, in which Trial. County questions were raised as to the county in which the offence within in which the that statute might be considered as having been so completed as to offence may be authorize a trial in such county.

tried.

a servant in

money in

Shropshire was receipt in with intent to therefore the embezzle; and

In the first of these cases the prisoner was indicted in the county of Hobson's case. Salop. The residence of the master was at Lichfield, in Staffordshire, A denial by where the prisoner served him in his trade. On a Saturday morn- Staffordshire, ing, both of them were at Shrewsbury; and the master having of his having authorized a person, named Beaumont, to collect some debts for him received at that place, returned home the same morning, leaving the prisoner Shropshire, at Shrewsbury to receive the money from Beaumont; and bring it is evidence to to him at Lichfield the same night. The prisoner received the show that the money from Beaumont about noon, and also a letter for his master which had been left at Beaumont's, but which did not relate to the money transaction. He left Shrewsbury soon after, but did not go to his master at Lichfield till the following evening. He then trial may delivered the letter; and being asked about the money, he said he be had in had not received any. A few days after, the master, in consequence of information he had received by letter, charged the prisoner with having received the money, and another servant who had been at Shrewsbury on the Saturday, being present, told the prisoner that he had seen him receive money, but the prisoner persisted in denying that he had received any. Some time afterwards, the master, having received further intelligence, bid the prisoner go to Shrewsbury to clear himself. On the Saturday following the prisoner went to Beaumont, at his house in Shrewsbury, and desired him to make a search on the left hand side of the room in which they had been;

(n) See ante, p. 107, et seq.

(o) Rex v. Hodgson, 3 C. & P. 422, Vaughan, B. Rex v. Bootyman, 5 C. & P. 300, Littledale, J. The affidavit should state that the prisoner did not know the charges intended to be brought against him, that it was necessary for his defence

to be furnished with the particular charges,
and that he had applied to the prosecutor
for a particular and been refused."

(p) Rex v. Williams, 6 C. & P. 626,
Arabin, Serjt., after consulting Gaselee, J.,
Alderson, B., and Gurney, B.

Shropshire.

Taylor's case.
If a servant

for his master

in the county of A., and being called upon to ac

of B., there

deny the receipt of it, he may be

indicted for the

embezzlement

in the latter county.

but no search was made, Beaumont telling him it was of no use to search, as he had received the money from him. The jury having found the prisoner guilty, the case was submitted to the consideration of the twelve Judges, upon two questions; first, whether, under this statute, an indictment might not be found and tried in the county where the money or goods were received, although there were no evidence of any other fact locally arising within the same county? and, secondly, whether, if further local proof were necessary, the subsequent couduct of the prisoner at Shrewsbury were not sufficient to obviate the objection, as being an act in furtherance of the purpose of secreting or embezzling? A majority of the Judges were of opinion, that the conviction was right. Lawrence, J., thought, that embezzling being the offence, there was no evidence of any offence in Shropshire, and that the prisoner was improperly indicted in that county. But the other Judges were of opinion that the indictment might be in Shropshire where the prisoner received the money, as well as in Staffordshire where he embezzled it by not accounting for it to his master; that the statute having made the receiving property and embezzling it amount to a larceny, made the offence a felony where the property was first taken, and that the offender might therefore be indicted in that or in any other county into which he carried the property. (q)

In the other case, which occurred shortly afterwards, the indictment charged the prisoner with embezzling the sum of ten shillings the property of his master James Barker. The evidence was, that receive money the prosecutor Barker, who was a fishmonger in Drury-lane, in the county of Middlesex, sent his servant, the prisoner, with some herrings to a street in Blackfriars-road, in the county of Surrey, to a Mrs. Stevens; telling him that he was to receive the sum of ten shillings count for it in for them. He went with the herrings about six o'clock in the the county evening, and delivered them to Mrs. Stevens, who paid him the ten shillings; after which he returned to his master, who asked him if he had brought the money; to which he replied, that he had not, for that Mrs. Stevens had not paid him. His master then paid him his weekly wages (it being on a Saturday,) and he went away, being to return on Monday morning as usual: but did not return, nor did he ever account for the money. Upon this evidence it was contended, on the part of the prisoner, that he was only liable to be indicted in the county of Surrey, where the money was received: and the jury having found him guilty, this point was reserved for the consideration of the Judges. The opinion of the Judges was afterwards delivered by Lord Alvanley, C. J., who first referred to the foregoing case of Hobson, and then proceeded. "In the present case no doubt can be entertained. The prisoner, being sent over Blackfriars-bridge into the county of Surrey, there received ten shillings for his master. The receipt of that money was perfectly legal, and there was no evidence that he ever came to the determination of appropriating the money to his own use until after he had returned into the county of Middlesex. It was not proved that the money ever was embezzled until the prisoner was in the county of Middlesex. In cases of this sort the nature of the thing embezzled

(q) Hobson's case, Shrewsbury Lent Ass. 1803, and East. T. 1803. 1 East, P. C. Addenda, xxiv., and Russ. & Ry. 56.

ought not to be laid out of the question. The receipt of money is not like the receipt of an individual thing, where the receipt may be attended with circumstances which plainly indicate an intention to steal, by showing an intention in the receiver to appropriate the thing to his own use. Thus, if a servant receive a horse for his master, and sell it before he gets out of the county where he first received it, it might be said that he is guilty of the whole offence in that county. But with respect to money, it is not necessary that the servant should deliver over to his master the identical pieces of money which he receives, if he should have lawful occasion to pay them away. In such a case as this, therefore, even if there had been evidence of the prisoner having spent the money on the other side of Blackfriars-bridge, it would not necessarily confine the trial of the offence to the county of Surrey. But here there is no evidence of any act to bring the prisoner within the statute until he is called upon by his master to account. When called upon by his master to account for the money the prisoner denied that he had ever received it. This was the first act from which the jury could with certainty say that the prisoner intended to embezzle the money. In this case there was no evidence of the prisoner having done any act to embezzle in the county of Surrey, nor could the offence be complete, nor the prisoner be guilty within the statute until he refused to account to his master. We are, therefore, of opinion, that the prisoner was properly indicted in the county of Middlesex." (r)

It should be observed, that by the 7 Geo. 4, c. 64, s. 12, where a felony is begun in one county, and completed in another, such felony may be dealt with, inquired of, tried, determined, and punished in any of the said counties, in the same manner as if it had been actually and wholly committed therein.

By sec. 61, of the 7 & 8 Geo. 4, c. 29, principals in the second degree, and accessories before the fact, are punishable in the same manner as principals in the first degree; and accessories after the fact (except receivers of stolen property) are liable to be imprisoned for any term not exceeding two years. (s)

(r) Taylor's case, 3 Bos. & Pul. 596. 2 Leach, 974. Russ. & Ry. 63.

(8) Ante, p. 2, as to hard labour and solitary confinement.

CHAPTER THE EIGHTEENTH.

OF EMBEZZLEMENT BY BANKERS, BROKERS, FACTORS, AND

OTHER AGENTS.

SHORTLY after the decision in Walsh's case, which has been noticed in a former part of this work, (a) the 52 Geo. 3, c. 63, was passed for more effectually preventing the embezzlement of securities for money and other effects, left or deposited for safe custody, or other special purpose, in the hands of bankers, merchants, brokers, attornies, or other agents. This act was repealed by the 7 & 8 Geo. 4, c. 27, but the 7 & 8 Geo. 4, c. 29, contains other enactments upon the same subject.

The 7 & 8 Geo. 4, c. 29, s. 49, " for the punishment of embezzlements committed by agents entrusted with property," (b) enacts "that if any money, (c) or security for the payment of money, shall be entrusted to any banker, merchant, broker, attorney, or other agent, (d) with any direction in writing to apply such money, or any part thereof, or the proceeds or any part of the proceeds of such security, for any purpose specified in such direction, and he shall, in violation of good faith, and contrary to the purpose so specified, in any wise convert to his own use or benefit, such money, security, or proceeds, or any part thereof respectively, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award; (e) and if any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, whether of this kingdom, or of Great Britain, or of Ireland, or of any foreign state, or in any fund of any body corporate, company, or society, shall be entrusted to any banker, merchant, broker, attorney,

statuté, ante, p. 145, and the 1 Vict. c. 90, s. 5, ante, p. 145, is transportation for not exceeding fourteen, nor less than seven years, or fine or imprisonment, with or without hard labour in the common gaol or house of correction, or both, and the offender may be sentenced to solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at a time, and not exceeding three months in the space of one year.