of the property; 71 and where the statute makes the embezzler guilty of larceny,72 or provides that he shall be punished in the manner prescribed for feloniously stealing property of the value of that embezzled,73 the value may be material in fixing the punishment to be imposed. The market value of the property governs in such cases if it has a market value, and if not, then its actual value.74 § 520. Property unlawfully acquired or held. The fact that money or property was unlawfully acquired or held by the owner, or was intrusted to the accused for the accomplishment of an immoral or unlawful purpose, does not render it any the less the subject of embezzlement.75 So money received by a bank as bonuses on loans in Texas. Grice v. State, 88 Tex. Cr. 106, 225 S. W. 172; Herberg v. State, 87 Tex. Cr. 439, 222 S. W. 559; Nesbitt v. State, 65 Tex. Cr. 349, 144 S. W. 944; Hamer v. State, 60 Tex. Cr. 341, 131 S. W. 813; Harris v. State, 21 Tex. App. 478, 2 S. W. 830; Gerard v. State, 10 Tex. App. 690. 72 State v. Carmean, 126 Iowa 291, 102 N. W. 97, 106 Am. St. Rep. 352. 73 State v. Gibson, 37 Utah 330, 108 Pac. 349. Where a soliciting agent collects and embezzles different sums on different days, and the total amount is in excess of that necessary to constitute grand larceny, he may be punished as for grand larceny, though no individual collection equaled the amount necessary to constitute that amount. State v. Gibson, 37 Utah 330, 108 Pac. 349. But the value of embezzled horses or cattle is immaterial even under such a statute, where the larceny of such animals is grand larceny regardless of its value. Washington v. State, 72 Ala. 272; People v. Wickham, 116 Cal. 384, 48 Pac. 329; People v. Salorse, 62 Cal. 139. See also § 750, infra. 74 Henry v. United States, 263 Fed. 459. And see §, infra. 75 Indiana. Woodward v. State, 103 Ind. 127, 2 N. E. 321. Massachusetts. Com. v. Smith, 129 Mass. 104. Missouri. State v. Blakemore, 226 Mo. 560, 126 S. W. 429, 27 L. R. A. (N. S.) 415; State v. Shadd, 80 Mo. 358. violation of the usury laws,76 or money collected by a municipal officer from persons engaged in unlawful traffic in intoxicating liquors, under an arrangement whereby immunity from prosecution was secured to them,77 or money collected on a lottery ticket,78 or received for whisky sold in violation of law,79 or money put up for the purpose of dealing in futures,80 or to purchase pools on a horse race,81 or to buy whisky and fixtures for a saloon,82 or money intrusted to the accused for the fraudulent purpose of hindering and delaying the owner's creditors,88 may be embezzled. And money or property may be embezzled from a person who has himself stolen it,84 or obtained it by fraud and misrepresentation.85 Nor is it a defense to show that a person from whom money was embezzled had not complied with a statute in regard to persons doing business under fictitious names,86 nor that an agent who embezzles money collected for his principal had not filed a certificate of his agency as required by law.87 And in the case of embezzlement from a corporation, it is no defense to show that the acquisition or possession of the property was unauthorized by its charter, 88 or, in the case of a foreign corporation, that it had not State v. Tumey, 81 Ind. 559. 81 State v. Shadd, 80 Mo. 358. A person may be indicted for fraudulent breach of trust, although the trust was created for an unlawful purpose, or was contrary to public policy, as where the defendant obtained the money from the prosecuting witness for the ostensible purpose of procuring change for a bill which the defendant claimed to have found and which he agreed to divide with the witness. State v. Posey, 88 S. C. 313, 70 S. E. 612. See also the other cases cited in the following notes. 76 People v. Damron, 160 N. Y. App. Div. 424, 145 N. Y. Supp. 239, aff'd 212 N. Y. 256, 106 N. E. 67. 77 State v. Patterson, 66 Kan. 447, 71 Pac. 860. 78 Woodward v. State, 103 Ind. 127, 2 N. E. 321; State v. Cloutman, 61 N. H. 143. 79 Com. v. Smith, 129 Mass. 104. 80 Com. v. Cooper, 130 Mass. 285; State v. Cunningham, 154 Mo. 161, 55 S. W. 282. 82 Himmelfarb v. State, 76 Tex. Cr. 173, 174 S. W. 586. 83 People v. Ward, 134 Cal. 301, 66 Pac. 372. 84 State v. Littschke, 27 Ore. 189, 40 Pac. 167. But on a prosecution for larceny by a bailee, the defendant may show that the person from whom he received the money had himself stolen it, and that the person claiming to be the true owner of it had demanded it of him and had ordered him not to turn it over to the person from whom he had received it, for the purpose of negativing a criminal intent. State v. Littschke, 27 Ore. 189, 40 Pac. 167. 85 State v. Hoshor, 26 Wash. 643, 67 Pac. 386. 86 People v. Wolff, 157 Mich. 242, 121 N. W. 754. 87 State v. Tumey, 81 Ind. 559. 88 Leonard v. State, 7 Tex. App. 417. complied with the statutes governing foreign corporations, and hence was not entitled to do business in the state,89 or in the case of an unincorporated association, that it was organized for an illegal purpose.9 It has been held, however, that to constitute embezzlement of public moneys by a public officer, the money embezzled must have been legally in his custody.91 90 § 521. Possession or custody in general. An agent, clerk, servant or other person who has the bare custody of property, as distinguished from the possession, commits a trespass and is guilty of larceny if he wrongfully converts it to his own use.92 And according to some of the courts he is not guilty of embezzlement under such circumstances.93 89 Alabama. Barr v. State, 10 Ala. App. 111, 65 So. 197. Indiana. State v. Tumey, 81 Ind. 559. Kentucky. Wilder v. Com., 28 Ky. L. Rep. 619, 89 S. W. 732. Michigan. People v. Hawkins, 106 Mich. 479, 64 N. W. 736. Minnesota. State v. Murphy, 113 Minn. 405, 129 N. W. 850. Missouri. State v. Blakemore, 226 Mo. 560, 126 S. W. 429, 27 L. R. A. (N. S.) 415. New Jersey. State v. Reynolds, 65 N. J. L. 424, 47 Atl. 644. Ohio. State v. Pohlmeyer, 59 Ohio St. 491, 52 N. E. 1027. Pennsylvania. Com. v. Shober, 3 Pa. Super. Ct. 554. Tennessee. State v. O'Brien, 94 Tenn. 79, 28 S. W. 311, 26 L. R. A. 252. Vermont. State v. Hopkins, 56 Vt. 250. That an agent or employee of such a corporation is estopped to deny the authority of the corporation, see § 538, infra. 90 State v. Skinner, 210 Mo. 373, 109 S. W. 38. 91 Where the statute prohibits the sheriff from collecting any taxes on unassessed property, he cannot be convicted of embezzling money so collected under a statute punishing embezzlement of public funds by persons having custody or control of the same. If he holds such money in trust, it is for the persons who pay it to him, since they may recover it from him, and its payment does not relieve them from liability. Mason v. Cook, 187 Ky. 260, 218 S. W. 740; Com. v. Alexander, 129 Ky. 429, 112 S. W. 586. See also § 538, infra. 92 See § 764, infra. 93 Illinois. Johnson v. People, 113 Ill. 99; Kibs v. People, 81 Ill. 599. Massachusetts. Com. v. Ryan, 155 Mass. 523, 30 N. E. 364, 31 Am. St. Rep. 560; Com. v. Berry, 99 Mass. 428, 96 Am. Dec. 767; Com. v. O'Malley, 97 Mass. 584. Ohio. Komito v. State, 90 Ohio St. 352, 107 N. E. 762. Texas. Watkins v. State, 84 Tex. Cr. 412, 207 S. W. 926; Roeder v. State, 39 Tex. Cr. 199, 45 S. W. 570. England. Rex v. Murray, 5 Car. & P. 145, 1 Moody C. C. 276; Rex v. Lavender, 2 East P. C. 566. There must be possession for the In other jurisdictions, however, it is held that a prosecution for embezzlement will lie in such cases, even though the offense would also be larceny at common law or under the statutes.94 And especially is this true where the embezzlement statutes in terms include cases of conversion by persons having the custody, care or control of money or property.95 But mere access is not sufficient even under this rule, time and purpose exclusive of the owner's possession. Komito v. State, 90 Ohio St. 352, 107 N. E. 762. So it has been held not to be embezzlement where a clerk in a store appropriates goods during the owner's absence, though he is in a sense a custodian of the store during such absence, Aabel v. State, 86 Neb. 711, 126 N. W. 316, 136 Am. St. Rep. 719; or where the foreman of a warehouse, whose duty it is to check goods coming into and going out of it, converts some of such goods, Bonatz v. State, 85 Tex. Cr. 292, 212 S. W. 494; or where a person converts money which the owner has given him to count in his presence. Com. v. O'Malley, 97 Mass. 584. Where clerk hired to sell goods in a store converts a portion of the goods, his offense is larceny and not embezzlement under a statute requiring the property to have come into his "possession or care" by virtue of his employment. Aabel v. State, 86 Neb. 711, 126 N. W. 316, 136 Am. St. Rep. 719. In Ker v. People, 110 Ill. 627, 51 Am. Rep. 706, aff'd 119 U. S. 436, 30 L. Ed. 421, 7 Sup. Ct. 225, it was held that money in the vaults of a bank was in the "possession" of an employee who had access to the vaults by virtue of his employment, even though he might also be guilty of larceny. 94 It has been so held under a statute punishing embezzlement by an agent or clerk of any property of another which has come into his pos session by virtue of his employment. Lowenthal v. State, 32 Ala. 589. And under the Federal Penal Code, which merely punishes embezzlement without defining it. Schell v. United States, 261 Fed. 593. A clerk who has received into his possession money of his employer in trust, and fraudulently appropriates it to his own use while it is in his exclusive custody, may be indicted for larceny by breach of trust under a provision that any person committing a breach of trust with a fraudulent intent shall be guilty of larceny, although he might also be indicted for simple larceny at common law. State v. Shirer, 20 S. C. 392. Possession or custody is sufficient under the Alabama statute punishing embezzlement by officers, etc., of banks. Reeves v. State, 95 Ala. 31, 11 So. 158. Exclusive possession by the accused is not necessary under the Alabama statute punishing embezzlement by officers, agents, etc., of banks. Money or property belonging to or in the possession of the bank may, at the same time, be in possession of an officer, agent, etc., and of the bank or of another officer, agent, etc., and under such circumstances he will be guilty of embezzlement if he converts it. Reeves v. State, 95 Ala. 31, 11 So. 158. 95 Woodward v. United States, 38 App. Cas. (D. C.) 323; Neal v. State, 55 Fla. 140, 46 So. 845, 19 L. R. A. (N. S.) 371; Richburger v. State, 90 Miss. 806, 44 So. 772; Territory v. where there is neither custody nor possession by the person sought to be charged.96 Maxwell, 2 N. M. 250. And see Minor v. State, 55 Fla. 77, 46 So. 297. Money delivered to a clerk for a special purpose comes into his "control or care" within such a statute. Grin v. Shine, 187 U. S. 181, 47 L. Ed. 130, 23 Sup. Ct. 98, aff'g 112 Fed. 790. An officer of a corporation who misappropriates its funds may be guilty under such a provision where he directs an employee having charge of the money to pay it out, although he himself never has possession of it. People v. Britton, 134 N. Y. App. Div. 275, 118 N. Y. Supp. 989. Although elevator companies have the legal custody and control of grain stored in their elevators, officers and servants of such companies having the actual and effective custody and control of it may be guilty of embezzling it. People v. Sherman, 133 N. Y. 349, 31 N. E. 107. A laundress who finds money accidently placed in a basket of soiled clothes by her employer, and fraudulently converts it, may be convicted of embezzlement. Neal v. State, 55 Fla. 140, 46 So. 845, 19 L. R. A. (N. S.) 371. In State v. Wingo, 89 Ind. 204, it was held that a servant who sold mules with which he had been intrusted by his employer to drive to town was guilty of embezzlement, although his offense would have been larceny in the absence of the embezzlement statute, since the statute punishing embezzlement was later than the one punishing larceny, and hence repealed the latter in so far as the two were inconsistent. In Indiana there are no common law offenses. In Louisiana a person who converts to his own use money of his employer in violation of the fiduciary relations existing between them may be convicted of embezzlement though the money was first in the possession of the employer and the offense would therefore have been larceny if not committed in violation of the fiduciary relation. State v. Pellerin, 118 La. 547, 43 So. 159. Custody or control is sufficient under Cal. Pen. Code, § 508, making every clerk, agent or servant who fraudulently appropriates any property of another which has come into his control or care by virtue of his employment. Grin v. Shine, 187 U. S. 181, 47 L. Ed. 130, 23 Sup. Ct. 98, aff'g 112 Fed. 790. But this provision does not apply to a mere caretaker, who has the bare custody of the property, as distinguished from the possession, and if he fraudulently ap propriates it he is guilty of larceny, and not of embezzlement. People v. Kawananakoa, 37 Cal. App. 433, 174 Pac. 686. Under an earlier statute it was held that embezzlement could only be committed by a person having possession, as distinguished from custody, and that a servant who had charge of a livery stable during his employer's absence, and who stole horses during such absence, was guilty of larceny and not of embezzlement. People v. Belden, 37 Cal. 51. it is larceny and not embezzlement where a person other than a clerk, agent or servant converts animo furandi money or property which the owner has put into his hands to do some act in relation to it in the owner's presence. People v. Montarial, 120 Cal. 691, 53 Pac. 355; People v. Johnson, 91 Cal. 265, 27 Pac. 663. 96 See § 537, infra. And |