EMBERIZA and EMBERIELD/E, See BUNTING.
EMBEZ'ZiEMENT, the felonious appropriation by clerks, servants, or others in a position of trust. of goods, money, or other chattels intrusted to their care, or received in the course of their duty, on account of their employers. It is essential to the crime of E. that the article taken should not have been in the actual or constructive posses sion of the employer; for if it were, the offense would amount to larceny (q.v.). E. is not an offense at common law; hence, persons guilty of this crime were formerly suffered to escape punishment. In consequence of a flagrant instance of this immu nity (Bazeley's Case, ii. Leach, 835), the act 39 Geo. III. c. 85, was passed, whereby E. was made a felony. This act has been repealed, but the law has since been fixed by sub sequent enactments, and is now included in the act 24 and 25 Vict. c. 96.
Embezzlement by clerks or servants is punishable by penal servitude or imprisonment. See EUNISIDIENT. If the offender be a male under 16, he may also be ordered to be privately whipped, at the discretion of the judge. Questions of much nicety often arose as to whether the facts proved constituted the crime of E. or that of larceny; but this distinction has ceased to be of any importance under the recent acts— the criminal justice act (14 and 15 Viet. c. 100), and the 24 and 25 Vict. c. 96, s. 72— whereby it is made competent, on an indictment for embezzlement, to convict a man of larceny, and vice versa. And hence, whichever of the two offenses is charged against the servant, if the evidence shows he committed the other offense, then he may be found guilty of that other offense, and punished accordingly.
Embezzlement by bankers, brokers, factors, and other agents, is regulated by the above statute, sec. 3, formerly the fraudulent trustees act (20 and 21 Viet. c. 54). These most important statutes have rendered almost every conceivable species of fraudulent mis appropriation by bankers and others a punishable offense. In particular, by the latter
statute, E. by a bailee (see BAILMENT) is now indictable. Under this provision, a shop keeper appropriating goods intrusted for repair, may be tried and convicted.
Embezzlement by bankrupts, or rather the pawning or disposing within 4 months before the bankruptcy of goods or any kind of property obtained on credit, is punish able by 2 years' imprisonment. See BANKRUPT.
Embezzlement of letters and newspapers by servants of the post-office, is also made highly penal by 7 Will. IV. and 1 Vict. c. 36. The E. of newspapers is punishable by fine or imprisonment; but to embezzle a letter, subjects the offender in all cases to penal servitude for 7 years; and if the letter contain money or valuables, to penal servitude for life.
Embezzlement of the queen's stores is punishable by penal servitude for 14 years. In regard to this species of E., summary authority was given to comptrollers and other officers named, on proof of E. of government stores below the value of 20s., to fine the offenders to the amount of double the value of the article taken.
In Scotland, the crime of E., or breach of trust, is punishable at common law. The distinction between this crime and that of theft is substantially the same as between E. and larceny in England. In both countries, the criterion relied upon to distinguish these crimes is the question of possession by the owner; but in Scotland the tendency of the decisions of late years has been to regard the appropriation of articles intrusted for a temporary purpose as amounting to theft. In this respect, the law of Scotland agrees with that of England in regard to E. by a bailee. In Scotand, the appropriation of things found without an owner, would appear, according to Mr. Hume, not to be an indictable offense. Such a case would sometimes be treated in England as larceny (q. v. ).