Opinion of the Court. the Criminal Code,) in the prosecution for the offence of embezzling, fraudulently converting to one's own use, or fraudulently taking or secreting with intent so to embezzle and convert, the bullion, money, notes, bank-notes, checks, drafts, bills of exchange, or other security for money, by a cashier or other officer, clerk or agent of such person, bank, incorporated company, or corporation or co-partnership, it shall be sufficient to allege, generally, in the indictment, an embezzlement, fraudulent conversion or taking, with such intent, funds of such person, bank, incorporated company or co-partnership, to a certain value or amount, without specifying any particulars of such embezzlement. Indeed, in the very nature of the crime, it would be impracticable in most cases to do more. The case being considered shows, in a marked degree, the necessity for the rule provided by statute, otherwise it would be difficult to make the proof and the allegations of the indictment correspond. On the trial the same liberal rule for the detection and punishment of persons guilty of misconduct, by reason of their confidential relations with their employer, prevails, for it is provided in the same section of the Criminal Code, evidence may be given of any such embezzlement, fraudulent conversion or taking, with such intent; and it shall be sufficient to maintain the charge in the indictment if it is proved that any bullion, money, note, banknote, check, draft, bill of exchange, or other security for money, of such person, bank, incorporated company or copartnership, of whatever value or amount, was fraudulently embezzled, converted or taken, with such intent, by such cashier, or other officer, clerk, agent or servant. Under this rule, which is certainly a wise one, it was proper the court should permit all the evidence of what defendant did by reason of his confidential relations with the banking firm whose clerk he was, to go to the jury, as was done, and if the jury found, from the whole evidence, any funds or securities for money had been embezzled or fraudulently converted to his Opinion of the Court. own use by defendant, it was sufficient to maintain the charge of embezzlement, as that crime is defined in the 75th and 76th sections of the Criminal Code. Any other rule would render it exceedingly difficult to secure a conviction under either of these sections of the statute. The view taken by the defence, of this statute, is too narrow and technical to be adopted. It has a broader meaning, and when correctly read, it will embrace all wrongful conduct by confidential clerks, agents or servants, and leave no opportunity for escape from just punishment on mere technical objections not affecting the guilt or innocence of the party accused. The cases of Kribs v. The People, 82 Ill. 425, and Goodhue v. The People, 94 id. 37, cited by the defence, were prosecutions for embezzlement under other sections of the Criminal Code, and illustrate no phase of the case being considered. There was no error in the court refusing to require the prosecution to elect for what particular act of embezzlement a conviction would be asked. The last ground of objection is, the verdict is without evidence, and against the law. Ordinarily, whether there is evidence to warrant a conviction, is a question for the jury, the court taking care always to see that no manifest injustice is done. With that view the evidence has been considered. It is seen the testimony of other witnesses, taken in connection with defendant's letter to the banking firm, written on the eve of his departure, with the schedule attached of securities and money embezzled, constitutes ample proof of the corpus delicti. It would answer no good purpose to enter upon an analysis of the evidence,-it is sufficient to state the conclusion reached. But whether the verdict is contrary to law is a question for the court, and that has been fully considered. The objection in this regard goes to the extent, that, admitting all the evidence tends to prove, it does not constitute embezzlement, under the 75th section, or any other section of the Criminal Code. The argument on this branch of the case is Opinion of the Court. based on a misconstruction of that section of the Criminal Code defining the crime of embezzlement. There are two counts in the indictment that charge defendant with embezzlement. On examination it will be seen they are both substantially in the language of the statute, and that is all the law requires. In the first count it is charged defendant embezzled securities for money, gold coin and other funds and property of Preston, Kean & Co., "then and there intrusted". to defendant; and in the second count it is charged defendant, being then and there a clerk in the employ of Preston, Kean & Co., fraudulently and feloniously did, without then and there having the consent of such firm, embezzle and fraudulently convert to his own use a large amount of the personal goods, funds and money,-all of which is described with sufficient particularity,-which personal goods, money and funds "then and there came to the possession" of defendant "by virtue of such employment." It will be observed the 75th section of the statute, under which the second count in the indictment was evidently framed, makes it an offence for a person occupying such confidential relations to embezzle property of his employer, or that of another that comes to his possession or under his care, or to secrete the same with intent to do so, by "virtue of his employment" with the owner or owners. The words "under his care," found in the 75th section of the statute, are not used in this second count of the indictment, and it is contended the proof fails to show the funds and property alleged to have been embezzled were ever in the possession of defendant by virtue of his employment, and for that reason it is said he is not guilty under this count. The word "care," as used in the statute, is the equivalent of "custody," and may mean "charge," "safekeeping," "preservation," "security," and it would seem it was in that sense it was used in the statute. "Possession," as used in the same section, has perhaps a slightly different and broader meaning than the word "care," but it may also Opinion of the Court. mean "to keep," "to take or seize hold,” “to hold or occupy,' as the owner of property would or might do. It matters little whether one or both words were used in the indictment. A close reading of the testimony will show the funds embezzled were quite as much in the possession of defendant as under his care. It is idle to say, in view of the relations defendant sustained to the banking firm, as disclosed by the testimony, that the funds and securities in the vaults were not in possession of defendant and other persons employed about the bank, and who had access to such funds and securities, for one purpose or another. If the indictment can not be maintained on the ground the funds and securities embezzled were in the possession of defendant, as that term is used in the statute, by virtue of his employment, it could not had it been alleged they were under his care, or had it been charged they came both to his possession and under his care by virtue of his employment; and the case would be presented where a clerk converted to his own use $44,000 of his employer's money and securities, and yet guilty of no crime, within the meaning of this section of the statute. So narrow a construction as that insisted upon would render nugatory this section of the statute which defines embezzlement by clerks and confidential agents. It seems to be claimed as to the money, bonds and property alleged to have been embezzled of his employers, the taking of them out of their vaults by defendant was larceny at common law, and therefore could not be embezzlement, under the 75th section of the Criminal Code. No such subtle reasoning as that will satisfy the common understanding. It is not denied that defendant converted to his own use large sums of money and securities belonging to the bank while he was in its employ as a clerk, and that such funds did in some way come to his possession. How did he come to get possession of such funds and securities for money, if it were not by virtue of his employment? Had he not been in the employ Opinion of the Court. of this banking house he could have had no access to their vaults. No attempt will be made to ascertain defendant's exact relation with the bank. It is enough to know his position, whatever it was, gave him access, for some purposes at least, to the vaults where the funds and securities were kept, and that brought the funds and securities embezzled, into his possession, or, what is really the same thing, under his care, in a measure, by virtue of employment. It was simply by virtue of his employment, and not otherwise, that he got possession of his employers' money and securities, and converted the same to his own use, and that is embezzlement, under the 75th section of the Criminal Code. It is that for which he was indicted and convicted, and it is the offence defined by the statute. It is to be observed the statute of this State defining the crime of embezzlement is much more comprehensive than any English statutes on the same subject that we have examined, and especially that section which defines embezzlement by a clerk or confidential agent who converts to his own use funds belonging to his employer which may come to his possession or under his care by virtue of his employment, and the decisions of the English courts, construing their own statutes, do not in any way assist to a correct understanding of the statutes of this State on the same subject. Much of what is said by text-writers to which the attention of the court has been called was said with reference to English statutes, which are materially different from that section of the statute of this State under which defendant was indicted. On account of the dissimilarity of the statutes, it has not been thought necessary to remark upon English embezzlement statutes, nor upon the decisions of English courts construing them. Decisions have been rendered by courts of some of our sister States construing statutes substantially like section 75 of the Criminal Code of this State, that make the embezzlement of money or personal goods larceny, among which are The Peo |