lently converts to his own use, without consent of his employer or master, any money or property of another, which has come to his possession or is under his care by virtue of such employment, he shall be deemed to have committed larceny.' To sustain an indictment under this section of the statute the money or property charged to have been embezzled, or fraudulently converted, must be the money or property of another than the person indicated. The defendant was collector of pew rents for a church corporation, and acted as such under a special and express agreement, by which, as compensation for his services, he was to have 'five per cent of all the pew rents, no matter who collected them.' The effect of this agreement was to vest in defendant an undivided one-twentieth interest in the rents collected, and to that extent to make him an owner of the same, jointly with the corporation. In other words, the rents collected were not the money or property of the corporation, but the joint property of the corporation and the defendant. They were, therefore, not the property of another than the defendant. It follows that the defendant is not properly indictable, under the section of the statute before cited, for his alleged embezzlement and fraudulent conversion of the same or any part thereof. This conclusion practically disposes of the case in defendant's favor. Were it necessary for us to pass upon the other points presented in the argument, we should be much inclined to doubt whether, independent of the agreement, the course of dealing between the corporation and the defendant, by which the former acquiesced in his practice of depositing the rents collected on his own general account, and of treating the deposits as his own, was not such as to divest the corporation of its specific property in the deposits, and to establish between it and the defendant the simple relation of creditor and debtor. If this doubt be well founded, the result would be the same as that before reached upon the construction of the agreement. Judgment and order refusing new trial reversed." § 394. 3 Property Must not be in Possession of Owner. — In Commonwealth v. O'Malley, where A. handed B. a sum of money to take a portion which A. had agreed to lead him, and B. refused to give any back, this was held not embezzlement. "To constitute the crime of embezzlement," said the court, "the property which the defendant is accused of fraudulently and feloniously converting to his own use must be shown to have been entrusted to him, so that it was in his possession, and not in the possession of the owner. But the facts reported in the bill of exceptions do not show that the possession of the owner of the money was even divested She allowed the defendant to take it for the purpose of counting it in her presence, and taking from it a dollar which she consented to lend him. The money is alleged to have consisted of two ten dollar bills, three five dollar bills, a two dollar bill, and a one dollar bill, amounting in all to thirty-eight dollars. The one dollar he had a right to retain, but the rest of the money he was only authorized to count in her presence, and hand back to her. He held it in his hands, but not in his possession, any more than he would have held possession of a chair on which she had invited 1 Holme's Case, 2 Lewin, 256, cited Archb. Cr. Pr. & Pl. 569, note; Reg. v. Bren, cited 2 Bish. Cr. L., sec. 335, note 3; Rex v. Hoggins, Russ. & Ry. 145; Com, v. Stearns, 2 Metc. 343, 349; Com. v. Libbey, 11 Metc. 64; 2 DEFENCES. 60 Com. v. Foster, 107 Mass. 221; 2 Bish. Cr. L., secs. 355, 356. 2 See Com. v. Libbey, 11 Metc. 64; Com. v. Stearns, 2 Metc. 343. 3 97 Mass. 585. him to sit. The distinction pointed out in the instructions of the court between his getting it into his hands with a felonious intent, or forming the intent after he had taken it, was, therefore, unimportant. The true distinction, upon principle and authority, is that stated by the cases upon the defendant's brief, that if the owner puts his property into the hands of another, to use it or do some act in relation to it, in his presence, he does not part with the possession, and the conversion of it, animo furandi, is larceny. Thus in People v. Call,1 the defendant took a promissory note to indorse a payment of interest upon it, in the presence of the owner of the note, and then carried it off, and it was held that he was rightly convicted of larceny, although he might have first formed the intention of appropriating it after it was put in his hands. So when a shopman placed some clothing in the hands of a customer, but did not consent that he should take it away from the shop till he should have made a bargain with the owner, who was in another part of the shop, his carrying it off was held to be larceny.2 In all such cases the temporary custody for the owner's purposes, and in his presence, is only the charge or custody of an agent or servant; gives no right or control against the owner; and the owner's possession is unchanged. "Exceptions sustained." Where the servant of a partnership appropriated money which he had received from one partner to carry to another partner he was held not guilty.3 In R. v. Murray, the indictment stated that the prisoner being a clerk in the employ of A., did, by virtue of such employment, receive and take into his possession the sum of £3 for and on account of his said master, and did afterwards fraudulently and feloniously embezzle 10s, part of the sum above mentioned; and, so the jurors say that the prisoner did feloniously steal, take, and carry away from the said A. the said sum of 10s of the moneys of the said A. The prisoner was proved to be a clerk in the employ of A.; he received from another clerk £3 of A.'s money that he might pay (among other things) for inserting an advertisement in the Gazette; the prisoner paid 10s for the insertion, and charged A. 20s for the same, fraudulently keeping back the difference, which he converted to his own use. The prisoner's counsel contended that this evidence did not support the indictment.5 The learned Common Sergeant directed the jury to find the prisoner guilty, if they thought the evidence proved the facts above set forth, which they did; and he therefore now respectfully requested the opinion of the learned judges, whether the facts sustain the indictment. At a meeting of the judges after Trinity Term 1830, at which all the learned judges were present, this case was considered, and they thought the case not within the statute, because A. had had possession of the money by the hands of his other clerk, and that the conviction was therefore wrong. " § 395. "Entrusted with any Note or Bill.". -A statute enacted that any officer or servant of a bank, entrusted with any bill or note who should embezzle it should be punished. A bank clerk employed to post into the ledger and read from the cash book, bank-notes from £100 to £1,000 in value, and who, 11 Denio, 120. 2 Com. v. Wilde, 5 Gray, 83. See, also, Reg. v. Thompson, 9 Cox Cr. Cas. 244; Reg. v. Jamison, 4 Cox Cr. Cas. 82. 3 Com. v. Berry, 99 Mass. 428 (1868). 5 2 Russ. 1233 (1st. ed.). in the course of that occupation had, with other clerks, access to a file upon which paid notes of every description were filed, took from the file a paid bank`note for £50. It was held that he could not be considered as "entrusted" with that note within the statute.1 § 396 Money of Illegal Association. embezzling the money of an illegal association.2 One can not be convicted of It is not embezzlement for the officer of a company to appropriate its money when the indictment is found after the charter has expired.3 Money paid by Mistake. § 397. -It is not embezzlement to fraudulently convert to one's own use money paid by mistake. "The statutes relating to embezzlement," it was said in this case, "both in this country and in England had their origin in a design to supply a defect which was found to exist in the criminal law. By reason of nice and subtle distinctions, which the courts of law had recognized and sanctioned, it was difficult to reach and punish the fraudulent taking and appropriation of money and chattels by persons exercising certain trades and occupations, by virtue of which they held a relation of confidence or trust towards their employers or principals, and thereby became possessed of their property. In such cases the moral guilt was the same as if the offender had been guilty of an actual felonious taking; but in many cases he could not be convicted of larceny, because the property which had been fraudulently converted was lawfully in his possession by virtue of his employment, and there was not that technical taking or asportation which is essential to the proof of the crime of larceny." "The statutes relating to embezzlement were intended to embrace this class of offenses; and it may be said generally that they do not apply to cases where the element of a breach of trust or confidence in the fraudulent conversion of money or chattels is not shown to exist. This is the distinguishing feature of the provisions in the Revised Statutes, creating and punishing the crime of embezzlement, which carefully enumerates the classes of persons that may be subject to the penalties therein provided. These provisions have been strictly construed, and the operation of the statute has been carefully confined to persons having in their possession, by virtue of their occupation or employment, the money or property of another, which has been fraudulently converted in violation of a trust reposed in them. In the last named case it was held, that a person was not guilty of embezzlement, under Revised Statutes, who had converted to his own use money which had been delivered to him by another for safe keeping. "The statute of 18579 was probably enacted to supply the defect which was shown to exist in the criminal law by this decision, and was intended to embrace cases where property had been designedly delivered to a person as bailee or keeper, and had been fraudulently converted by him. But in this class of cases there exists the element of a trust or confidence reposed in a person by reason of the delivery of property to him, which he voluntarily takes for safe keeping, and which trust or confidence he has violated by the wrongful conversion of the property. Beyond this the statute was not intended to go. Where money paid or property delivered through mistake has been misappropriated or converted by the party receiving it, there is no breach of trust or violation of a confidence intentionally refused by one party and voluntarily assumed by the other. The moral turpitude is therefore not so great as in those cases usually comprehended within the offense of embezzlement, and we can not think that the Legislature intended to place them on the same footing. We are therefore of opinion that the facts proved in this case did not bring it within the statute, and that the defendant was wrongfully convicted. § 398. "Exceptions sustained." Embezzlement by Attorney. —An indictment against an attorney for collecting and receiving money in that capacity and neglecting to pay it after demand must distinctly show that the relation of attorney and client existed between the parties.1 § 399. By Commission Merchants. - Under the Illinois statute as to embezzlement by commission merchants a previous demand of the property by the owner is essential.2 $ 400. Embezzlement from Corporations. — In Cory v. State,3 it was held that a statute against embezzlement from "any corporate body in this State" did not include a foreign corporation doing business in the State without authority of law. The court in delivering judgment said: "The defendant was indicted as cashier of the branch office of the Freedman's Saving and Trust Company, in Atlanta, Georgia, for the offense of embezzlement in secreting and stealing over $8,000 of money deposited in said branch office, and the indictment was framed on section 4421 of the Code. The question for our review is, whether the cashier of the branch office of said company in Atlanta is subject to the penalties and punishment prescribed in that section of the code, and the answer to that question depends upon the answer to this: Was that branch bank or branch office a corporate body in this state in the sense of the statute? "1, 2. The Freedman's Saving and Trust Company is a corporation chartered by Congress and located in the City of Washington. The charter gives it no power to establish a branch anywhere. No act of Congress, outside of its charter, gives it such power, nor has the Legislature of Georgia granted it the franchise to locate a branch for the transaction of its business within the limits of this State. Its existence as a corporation, created by Congress and located in the City of Washington, will be recognized by our courts; but its existence as a corporate body, located anywhere in Georgia, must depend upon the power granted in its charter by Congress, or some other constitutional act of Congress, or some statute of Georgia. We have been cited to no such law, and we know of none. It is not the policy of the State to encourage the location in our midst of the branch offices of foreign corporations, and the criminal stat utes should not be so enlarged by construction as to embrace such branches 1 People v. Tryon, 4 Mich. 665 (1857). 2 Wright. People, 61 Ill. 382 (1871); "Warehouseman" and "Warfinger" con strued; Bucher v. Com., 103 P. St. 528 (1883). 3 55 Ga. 236. located here without authority of law. Section 421 of the Code was designed to protect our own corporate bodies, chartered by our State, and doing business here under the authority of this State in the exercise of franchise granted by it, and to punish the officers of such corporations for embezzling the funds thereof. The section actually puts such corporations upon an equality with the public departments of the State government, and of the counties, towns and cities of the State, and imposes upon the officers of all alike the same punishment, thus throwing the ægis of its protection around all its corporations as around its counties, towns, cities, and the various departments of its own government. It reads thus: Any officer, servant, or other person employed in any public department, station or office of government of this State, or in any county, town or city of this state, or in any bank or other corporate body in this State, or any president, director or stockholder of any bank, or other corporate body in this State, who shall embezzle,' etc. Now can it be seriously contended that the Legislature meant to include in this section a corporate body in this State exercising franchises here without her authority, and without the sanction of any law, State or Federal? Did she mean to protect the exercise of franchises within her limits, which no law-making power recognized by her ever granted, and to place such franchises thus illegally exercised upon an equality with those granted by herself and upon an equality, too, with her own departments of the State government? We can not think so; and if she did not so mean in the section of the code quoted, and on which the indictment is ramed, the defendant was certainly convicted on this count without authority of law. It is vain to argue that the change of the words of this State' when applied to the departments of government and to the counties, towns and cities in the section to the words in this State,' when applied to the corporate bodies has any significance. Wherever the banks are elsewhere referred to in this division of the code, they are described as banks in this State, and in such connection as to make it unmistakable that the Legislature meant banks chartered by this State. It is a fundamental principle of the common law that penal statutes should be construed strictly. It is scarcely necessary to invoke this rule of construction here. It would require an extremely liberal construction to bring the officer of a corporate body illegally located in the State within the purview of this statute. 3, 4. But there is a second count in the indictment, and the punishment under the second is the same as under the first count; it is therefore said that the verdict of guilty, being general, may be predicated upon either count. That may be so, and as we recognize the Freedman's Saving and Trust Company as an artificial person living in the City of Washington, and some of whose property may have got into Georgia, and somebody intrusted with it here may have stolen it, and as this second count is framed upon section 4422 of the code, which punishes any bailee who thus steals after a trust, we do not see why this defendant could not be punished under the facts proven in this case under that section. We regret, therefore, that on examining the transcript of the record, we find that this count, as it appears there, is bad, it being alleged that the fraudulent conversion of the money was made with the consent of the owner. Of course no crime is charged in such a count, and there can be no legal conviction upon it. It is said that the clerk, in copying the bill of indictment, made a mistake and wrote with' when he should have written 1 See Code, secs. 442, 64427. |