A taking is requisite to constitute a lar cent', and embezzlement is in substance and essentially a larceny, aggravated rather than palliated by the violation of a trust or con tract, instead of being, lika larceny, a tres pass. The administration of the common law has been not a little embarrassed in dis criminating between 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 embezzlement the proper mode is to allege sufficient matter in the indictment to apprise the defendant that the charge is for embezzlement. And it is often no less difficult to this crime from a mere breach of trust. Although the statutes de clare that a party shall be deemed to have committed the erime of simple larceny, yet it is a larceny of a peculiar character, and must be set forth in its distinctive charac ter; Com. V. Wyman, 8 Mete. (Mass.) 247; Com. v. Simpson, 9 Mete. (Mass.) 138; Com. v. King, 9 Cush. (Mass.) 284; Kribs v. People, 82 Ill. 425; State v. Newton, 26 Ohio St. 265.
The word embezzle implies a fraudulent intent, and the addition of the word frauctu lentil/ is mere surplusage; Reeves v. State, 95 Ala. 31, 11 South. 158; U. S. v. Lancaster, 2 McLean 431, Fed. Cas. No. 15,556 ; State v. Wolff, 34 La. Ann. 1153; State v. Trolson, 21 Nev. 419, 32 Pac. 930; State v. Combs, 47 Kan. 136, 27 Pac. 818.
When money is embezzled, the owner has a right to settle as for an implied contract, and such settlement is no bar to a criminal prosecution; Fagnan v. Knox, 66 N. Y. 526; State v. Noland, 111 Mo. 473, 19 S. W. 715.
A partner is not guilty of embezzlement fn appropriating the funds of the firm to his own use; Gary v. Masonic Aid Ass'n, 87 Ia.
25, 53 N. W. 1086. See Napoleon v. State, 3 Tex. App. 522; 12 Cox, C. C. 96.
, When an embezzlement of a part of the cargo takes place on board of a ship, either from the fault, fraud, connivance, or negli gence of any of the crew, they are bound to contribute to the reparation of the foss, in proportion to their wages. So too the em bezzlement of property, saved is a bar to salvage. When the embezzlement is fixed on any individual, he is solely respOnsible; When it is made by the crew, or some of the crew, but the particular offender is unknown, and, frown the circumstances of the case, strong presumptions of guilt apply to the itole crew, all must eontribute. The pre sumption of innocence is always in favor of the crew; and the guilt of the parties must be 'established beyond all reasonable doubt before they can be required to contribute; Spurr v. Pearson, 1 Mas. 104, Fed. Cas. No. 13,208; 4 B. & P. 347; Lewis v. Davis, 3 Johns. (N. Y.) 17; Dane, Abr. Index; Wesk. Ins. 194; 3 Kent 151. See Pars. Sh. & Adm.
A prima fade case of embezzlement is made out, sufficient to warrant the surrender of one in extradition proceedings, when it was shown that a check was delivered to him with instructions to draw money from the bank and take it to a railway sta tion to be forwarded to another city, and that he subsequently converted the same to his own use Grin v. Shine, 187 U. S. 181, 23 Sup. Ct. 98, 47 L. Ed. 130.
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.