EMBEZZLEMENT. The fraudulent ap propriation to one's own use of the money or goods entrusted to one's care by another. Fagnan v. Knox, 40 N. Y. Super. Ct. 41.
The fraudulent appropriation• of property by a person to whom it has been intrusted or to whose hands it has lawfully come; it is distinguished from larceny in the fact that the original taking of the property was law ful or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking. Moore v. U. S., 160 U. S. 268, 16 Sup. Ct. 294, 40 L. Ed. 422. See Grin v. Shine, 187 U. S. 181, 23 Sup. Ct. 98, 47 L. Ed. 130 ; People v. Tomlin son, 102 Cal. 19, 36 Pac.' 506.
The principles of the common law not be ing found adequate to protect general owners against the fraudulent conversion of proper ty by persons standing in certain fiduciary relations to those who were the subject of their peculations, certain statutes have been enacted, as well in England as in this coun try, creating ,new criminal offences and an nexing to them their proper punishments. The general object of these statutes doubt less was to define and embrace, as criminal offences punishable by law, certain cases where, although the moral guilt was quite as great as in larceny, yet the technical objec tion arising from the fact of a possession lawfully acquired by the party screened Mm from punishment. Corn. v. Stearns, 2 Metc. (Mass.) 345; Corn. v. Simpson, 9 Metc. (Mass.) 142. See State v. Wolff, 34 La. Ann. 1153.
In order to constitute embezzlement, it must distinctly appear that the party acted with felonious intent, and made an inten tionally wrong disposal, indicating a design to cheat and deceive the owner. A mere failure to pay over money intrusted to such party as agent for investment is not suffi cient, if this intent is not plainly apparent ; People v. Hurst, 62 Mich. 276, 28 N. W. 838. The money appropriated need not have been intrusted to the accused by the owner ; it is sufficient if it were intrusted to the employ er of the accused and appropriated by the latter ; Com. v. Clifford, 96 Ky. 4, 27 S. W. 811; and that the money was taken without any attempt at concealment is no defence to the charge of embezzlement ; People v. Con nelly, 4 Cal. Unrep. Cas. 858, 38 Pac. 42. There must be a relation of special trust in regard to the article appropriated, and it must be by virtue of such trust that the servant has access to, or control or possession of, It; Colip v. State, 153 Ind. 584; 55 N. E. 739, 74 Am. St. Rep. 322 ; followed in State v. Win standley, 155 Ind. 290, 58 N. E. 71. Wheth
er the lack of authority to receive the money in the first instance will necessarily defeat a prosecution for embezzlement is a subject much discussed. The better view seems to be that if, by virtue of his employment, the money came into his possession, its embez zlement is within the meaning of the stat ute ; Ker v. State, 110 Ill. 629, 51 Am. Rep. 706 ; Smith v. State, 53 Tex. Cr. R. 117, 109 S. W. 118, 17 L. R. A. (N. S. 531, 15 Ann. Cas. 435 ; McAleer v. State, 46 Neb. 116, 64 N. W. 358 ; State v. Cbstin, 89 N. C. 511; State v. Jennings, '98 Mo. 493,' 11 S. W. 980; but some cases hold that, 'if there was no au thority to receive the money, its conversion will not constitute embezzlement ; Brady v. State, 21 Tex. App. 659, 1 S. W. 462 ; State v. Johnson, 49 Ia. 141.
Embezzlement being a statutory offence, reference must be had to the statutes of the jurisdiction for the classes of persons and property affected by them. It has been held that there may be embezzlement of bank bills ; Com. v. King, 9 Cush. (Mass.) 284; municipal bonds ; Bork v. People, 91 N. Y. 5 ; State v. White, 66 Wis. 343, 28 N. W. 202 ; grain; State v. Stoller, 38 Ia. 321; an ani mal ; Washington v. State„ 72 Ala. 272 ; com mercial securities ; State v. Orwig, 24 Ia. 102 ; [1891] 1 Q. B. 112 ; and of a mortgage ; Corn. v. Concannon, 5 Allen (Mass.) 502; and by public officers, ,placed in a fiduciary relation as such ; Corn. v. Tuckerman, 10 Gray (Mass.) 173; People v. McKinney, 10 Mich. 54. See Ex parte Hedley, 31 Cal. 108 ; People v. Dalton, 15 Wend. (N. Y.) 581; Corn. v. Morrisey, 86 Pa. 416 ; State v. Munch, 22 Minn. 67; Lewis v. Kendall, 6 How. Pr. (N. Y.) 59; State v. King, 81 Ia. 587, 47 N. W. 775 ; State v. Noland, 111 Mo. 473, 19 S. W. 715. Where one withdraws from the money drawer of a cash register money that he had deposited a before without registering, he is guilty of embezzlement ; Corn. v. Ryan, 155 Mass. 523, 30 N. E, 364 15 L. R. A. 317, 31 Am. St. Rep. 560. Where an attorney collects money for his client, he acts as agent and attorney, and in either case, if he appropriate the money collected to his own use with the intention of ing the owner of the same, he is guilty of embezzlement ; People v. Converse, 74 Mich. 478, 42 N. W. 70, 16 Am. St. Rep. 648. In a prosecution for the embezzlement of mon ey held by defendant as bailee, it is imma terial that it was deposited in a bank, for a time, so that the money actually converted was not the identical bills delivered to the bailee; v. Mead, 160 Mass. 319, 35 N. E. 1125.