If property is delivered to a servant or agent under such circumstances as to give him the possession and not merely the custody, and he thereafter fraudulently converts it, his offense is embezzlement 97 and not larceny.98 Constructive possession is sufficient under a statute punishing stock brokers who have in their possession securities belonging to their customers and pledge or dispose of the same without the customer's consent.9 99 It has been held that a statute punishing embezzlement applies where the conversion takes place after it goes into effect though the accused acquired possession of the property before that time.1 But there is also authority to the contrary.2 § 522. Bailees. A bailee of money or property, if he has obtained possession lawfully and without a felonious intent, cannot commit larceny by converting the property to his own use while the bailment continues. In such a case he is guilty of embezzlement under the statutes punishing embezzlement by bailees, or by persons generally. 97 Where possession is given to a salesman who has authority to pass title to a purchaser on receiving payment, and the salesman appropriates the property, it is embezzlement and not larceny. Talbert V. United States, 42 App. Cas. (D. C.) 1. In Georgia it is held that where a master intrusts a bill to a servant for the purpose of getting the same changed and bringing back the change, and the servant appropriates the money, he is guilty of larceny after trust, and not of simple larceny. Mobley v. State, 114 Ga. 544, 40 S. E. 728. Basley v. State, 10 Ga. App. 470, 73 S. E. 624. But as a rule the servant is regarded as having the bare custody of the money under such circumstances, and is held to be guilty of larceny. See § 765, infra. 98 See § 765, infra. 99 A broker who pledges securities and from time to time renews the note evidencing the debt has structive possession of them con each time the note is renewed. People v. Atwater, 229 N. Y. 303, 128 N. E. 196, rev'g 191 App. Div. 345, 181 N. Y. Supp. 742. 1 Fields v. United States, 27 App. Cas. (D. C.) 433, certiorari denied, 205 U. S. 292, 51 L. Ed. 807, 27 Sup. Ct. 543. 2 State v. Mannix, 9 Ohio Dec. (Reprint) 667. 3 See § 760, infra. 4 United States. Tredwell v. United States, 266 Fed. 350, certiorari denied, 253 U. S. 496, 64 L. Ed. 1031, 40 Sup. Ct. 587. California. People v. Gordon, 133 Cal. 328, 65 Pac. 746, 85 Am. St. Rep. 174; People v. Salorse, 62 Cal. 139; People v. Bojorquez, 35 Cal. App. 350, 169 Pac. 922; People v. Crane, 34 Cal. App. 599, 168 Pac. 377. Kentucky. Com. v. Weddle, 176 Ky. 780, 197 S. W. 446. Massachusetts. Com. v. Doherty, 127 Mass. 20; Com. v. Simpson, 9 Metc. (Mass.) 138. If a person obtains possession of money or property through a trick or device, and with a felonious intent, existing at the time, to convert it to his own use, and the owner intends to part with the possession merely, and not with the title, he is guilty of larceny. And according to some of the courts he cannot be convicted of embezzlement under such circumstances. But other courts hold that he may be prosecuted for embezzlement in such cases if he comes within the Michigan. People v. Husband, 36 Mich. 306. Oklahoma. Flohr v. Territory, 14 Okla. 477, 78 Pac. 565; Ennis v. State, 13 Okla. Cr. 675, 167 Pac. 229, L. R. A. 1918 A 312; Bivens v. State, 6 Okla. Cr. 521, 120 Pac. 1033. Pennsylvania. Hutchison v. Com., 82 Pa. 472; Com. v. Dissinger, 59 Pa. Super. Ct. 247. Where one honestly receives the possession of goods upon a trust, and thereafter fraudulently converts them to his own use, it is embezzlement. People v. Shaughnessy, 110 Cal. 598, 43 Pac. 2; People v. Tomlinson, 102 Cal. 19, 36 Pac. 506. A driver of a delivery truck who sells goods intrusted to him to deliver is guilty of embezzlement. Canellos v. State, 17 Ala. App. 278, 84 So. 396. A driver for a transfer company who receives goods from one railroad company to be delivered to another, and sells and delivers them to a third person, is guilty of embezzlement and not larceny. State v. Casey, 207 Mo. 1, 105 S. W. 645, 123 Am. St. Rep. 367, 13 Ann. Cas. 878. Where an employee of a company whose duty it is to deliver and check out to delivery wagons goods which have been sold, delivers goods to a driver who sells them and divides the proceeds with the first named employee, the offense is embezzlement. The fact that the first employee had no authority to deliver the goods to the driver under such circumstances does not make it larceny. State v. Coster, 170 Mo. App. 539, 156 S. W. 773, 157 S. W. 85. As to who are bailees within the meaning of statutes punishing embezzlement by bailees, see § 527, infra. 5 See § 761, infra. 6 Grin v. Shine, 187 U. S. 181, 47 L. Ed. 130, 23 Sup. Ct. 98; Moore v. United States, 160 U. S. 268, 40 L. Ed. 422, 16 Sup. Ct. 294; People v. Tomlinson, 102 Cal. 19, 36 Pac. 506; People v. Johnson, 91 Cal. 265, 27 Pac. 663; People v. Salorse, 62 Cal. 139; People v. De Coursey, 61 Cal. 134; People v. Sing, Cal. App., 183 Pac. 865; People v. Crane, 34 Cal. App. 599, 168 Pac. 377; Quinn v. People, 123 Ill. 333, 15 N. E. 46; Johnson v. People, 113 Ill. 99. Where a railroad check clerk falsely remarks and reconsigns goods in a railroad car to a fictitious person, the larcenous taking commences when he goes into the car to check out the goods for reshipment, and his possession begins at that time, and since his possession is wrongful in its inception his offense is larceny and not embezzlement. State v. Smith, 250, Mo. 350, 157 S. W. 319. And see State v. Gross, alias Kimble, 91 Ohio St. 161, 110 N. E. 466, holding that the question of when the intention was formed was one of fact for the jury, and that the evidence was sufficient to sustain a verdict of embezzlement. The jury are not bound to believe the defendant's testimony as to his intent at the time when he obtained terms of the embezzlement statute, even though he might also have been prosecuted for larceny." If possession is obtained by fraud, trick or device, and the owner intends at the time to part with his title, the offense, if any is obtaining money by false pretenses, and not larceny or embezzlement.10 If a bailment is terminated, either by the terms of the contract of bailment, or by operation of law because of the wrongful act of the bailee, the possession revests constructively in the bailor, and a subsequent fraudulent conversion by the bailee is larceny.11 And according to some courts the bailee cannot be convicted of embezzlement in such cases. 12 But under some statutes he may be convicted of larceny by bailee.18 § 523. Delivery by third person to agent or servant. If money or property is delivered by a third person to an agent or servant possession. People v. Bojorquez, 35 Cal. App. 350, 169 Pac. 922. 7 Alabama. Wall v. State, 2 Ala. App. 157, 56 So. 57. And see Kramer v. State, 16 Ala. App. 456, 78 So. 719, certiorari denied, 201 Ala. 700, 78 So. 990. District of Columbia. Miller V. United States, 41 App. Cas. (D. C.) 52; Woodward v. United States, 38 App. Cas. (D. C.) 323. Georgia. Martin v. State, 123 Ga. 478, 51 S. E. 334. New York. See People v. Miller, 169 N. Y. 339, 62 N. E. 418, 88 Am. St. Rep. 546. West Virginia. State v. Fraley, 71 W. Va. 100, 76 S. E. 134, 42 L. R. A. (N. S.) 498. As where an agent, with felonious intent obtains possession of money by overstating the amount necessary to make payments on behalf of his principal. State v. Tabener, 14 R. I. 272, 51 Am. Rep. 382. Or where an attorney for a woman against whom a divorce suit had been instituted obtained from her husband a sum of money in settlement of her claim for alimony and her right of An officer of a bank who takes money belonging to the bank from a safe deposit box with the intention of using it for his own purposes, and carries it to a brokers to be used in buying stock for his individual account is guilty of both common-law larceny and embezzlement, and may be convicted of either. People v. Barnes, 158 N. Y. App. Div. 712, 143 N. Y. Supp. 885, appeal dismissed 210 N. Y. 612, 104 N. E. 1136. 8 See § 1227 et seq., infra. 10 People v. Tomlinson, 102 Cal. 19, 36 Pac. 506. 11 See § 762, infra. 12 See Johnson v. People, 113 Ill. 99; Com. v. Barry, 116 Mass. 1; Com. v. Davis, 104 Mass. 548. 13 Under the Wisconsin statute a bailee may be convicted of larceny for or on account of his principal or master, the agent or servant has the possession, and is in the position of a mere bailee, until he has delivered the money or property to the principal or master, or put it, intending to do so for the principal or master, where it is his duty to put it, and if he fraudulently converts it before this, his offense is embezzlement 14 and not larceny.15 After he has disposed of the property, however, by putting it in the proper place for the master, it is in the constructive possession of the master, and, if the servant afterwards converts it, he is guilty of larceny, 16 and according to some courts he cannot be convicted of embezzlement under such circumstances,17 although there is also authority to the contrary.18 § 524. In general. Some of the statutes punishing embezzlement in terms apply to any person who does the prohibited acts.19 Others, however, in terms only apply to persons occupying particular rela by bailee though he breaks bulk. Burns v. State, 145 Wis. 373, 128 N. W. 987, 140 Am. St. Rep. 1081. 14 Alabama. Weldon v. State, 17 Ala. App. 68, 81 So. 846; Ray v. State, 16 Ala. App. 496, 79 So. 620. California. People v. Gallagher, 100 Cal. 466, 35 Pac. 80. Georgia. Haupt v. State, 108 Ga. 64, 33 S. E. 831; Cook v. State, 8 Ga. App. 522, 70 S. E. 31. Illinois. Kibs v. People, 81 Ill. 599. Massachusetts. Com. v. Ryan, 155 Mass. 523, 30 N. E. 364, 31 Am. St. Rep. 560; Com. v. King, 9 Cush. 284. England. Reg. v. Rud, 6 Cox C. C. 284, Dears. C. C. 257; Reg. v. Norval, 1 Cox C. C. 95; Reg. v. Masters, 1 Den. C. C. 332; Rex v. Sullens, 1 Moody C. C. 129; Rex v. Walsh, Russ. & R. 215; Rex v. Headge, Russ. & R. 160. So where an officer, servant or employee of a corporation converts money coming into his possession before it has been paid to the corporation, he is guilty of embezzlement. Cook v. State, 8 Ga. App. 522, 70 S. E. 31. And the cashier of a bank who receives from an express company money sent to the bank and converts it to his own use is guilty of embezzlement and not of larceny, since his possession of the money is that of the bank. Kramer v. State, 16 Ala. App. 456, 78 So. 719, certiorari denied, 78 So. 990. And see § 765 et seq., infra. 17 See Com. v. Ryan, 155 Mass. 523, 30 N. E. 364, 31 Am. St. Rep. 560; Reg. v. Rud, 6 Cox C. C. 284, Dears. C. C. 257; Reg. v. Norval, 1 Cox C. C. 95. 18 As where money which he receives is put into the cash drawer, and he afterwards removes and appropriates it. People v. Hawkins, 106 Mich. 479, 64 N. W. 736. 19 State v. Whitehouse, 95 Me. 179, 49 Atl. 869; State v. Weber, 31 Nev. 385, 103 Pac. 411. And see the statutes of the various states and § 525 et seq., infra. tions or positions, as clerks or servants,20 employees, agents,22 attorneys,23 bailees, 24 stockbrokers,25 innkeepers, 26 public officers,27 trustees,28 receivers,29 assignees in insolvency,30 court officers,31 executors and administrators, 32 guardians,33 and the like. And when converts anything of value intrusted to him by a guest, guilty of embezzlement. Chanock v. United States, 267 Fed. 612. 27 See § 528, infra. 28 People v. Shears, 158 N. Y. App. Div. 577, 143 N. Y. Supp. 861, aff'd 209 N. Y. 610, 103 N. E. 1129; Com. v. Levi, 44 Pa. Super. Ct. 253; Com. v. Kaufman, 9 Pa. Super. Ct. 310. A guardian is a trustee of his ward. People v. Page, 116 Cal. 386, 48 Pac. 326. The treasurer of a lodge of a fraternal order is a trustee of an express trust."" State v. Campbell, 59 Kan. 246, 52 Pac. 454. 29 Fields v. United States, 27 App. Cas. (D. C.) 433, certiorari denied 205 U. S. 292, 51 L. Ed. 807, 27 Sup. Ct. 543. 30 Assignee in insolvency" includes an assignee in trust for the benefit of creditors. State v. Mannix, 9 Ohio Dec. (Reprint) 667. In People v. De Lay, 80 Cal. 52, 22 Pac. 90, an assignee for creditors was convicted of embezzlement, but the wording of the statute is not given. 31 United States v. Bixby, 6 Fed. 375. 32 Illinois. Brown v. People, 218 Ill. 361, 75 N. E. 984. Indiana. State v. Adamson, 114 Ind. 216, 16 N. E. 181. Massachusetts. Com. v. Kelley, 184 Mass. 320, 68 N. E. 346. Michigan. People v. Hiller, 113 Mich. 209, 71 N. W. 630. Mississippi. State V. Gillis, 75 Miss. 331, 24 So. 25. Pennsylvania. Com. v. Levi, 44 Pa. Super. Ct. 253. 33 District of Columbia. Ambrose |