EMBEZZLEMENT. In Criminal Law.
The fraudulently removing and secreting of personal property with which the party has been intrusted, tor the purpose of applying it to his own use.
2. The principles of the common law not being found adequate to protect general owners against the fraudulent conversion of property by persons standing in certain fidu ciary relations to those who were the subject of their peculations, certain statutes have been enacted, as well in England as in this country, creating new criminal offences and annexing to them their proper punishments. The general object of these statutes doubtless was to embrace, as criminal offences punish able by law, certain cases where, although the moral guilt was quite as great as in larceny, yet the technical objection arising from the fact of a possession lawfully so quired by the party screened him from punishment. 2 Mete. Mass. 345; 9 id. 142.
3. A taking is requisite to constitute a larceny ; an embezzlement is in substance and essentially a larceny, aggravated rather than palliated by the violation of a trust or contract, instead of being, like larceny, a trespass. The administration of the common law has been not a little embarrassed in dis criminating the two offences. But they are so far distinct in their character that, under an indictment charging merely a larceny, evidence of embezzlement is not sufficient to authorize a conviction ; and in cases of enk bezzlement the proper mode is to allege suffi cient matter in the indictment to apprize the defendant that the charge is for embezzle ment. Although the statutes declare that a party shall be deemed to have committed the crime of simple larceny, yet it is a larceny of a peculiar character, and must be set forth in its distinctive character. 8 Mete.
Mass. 247 ;. 9 id. 138 ; 9' Cueh. Mass. 284.
4. When an embezzlement of a part of the cargo place on board of a ship, sither from the fault, fraud, connivance, or negligence of any of the crew, they are bound to contribute to the reparation• of the loss, in proportion to their wages. When the embezzlement is fixed on any individual, be is solely responsible when it is made. by the crew, or some of the crew, but the par ticular offender is unknown, and, from the circumstances of the case, strong presump tions of guilt apply to the whole crew,, all must contribute. The presumption of inno cence is always in favor of the crew; and the guilt of the parties must be established be yond• all reasonable doubt before they can be required to contribute. 1 Mae. C. C. 104; 4 Km. & P. 347 ; 3 Johns. N. Y. 17 ; 1 Mar shall, Ins. 241; Dane, Abr. Index;, Weskett, Ins. 194; 3 Kent, Comm. 151; Hard. Ky. 529; Parsons, Merit. Law, Index.
Stringent provisions, are made by several acts of congress against the embezzlement of arms, munitions, and habiliments of war, property stored in public storehouses, letters, precious metals, and coins from the mint. See acts of Apr. 30, 1790, 4 16, 1 Story, U. S. Laws, 86 ; Apr. 20, 1818, 3 id. 1715. Mch, 3,, 1825, 3 id. 1991; Mch. 3, 1825, 4 24, 3 id. 2006.