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by a carrier or other person of money or other property delivered to him to be carried for hire," 28 or the conversion of property deliv ered to a person "for safe custody," 29 or embezzlement by a clerk, agent or servant of money or property received "by virtue of his employment" or "in the course of his employment, or “for in the name or on account of" his master or employer,31 or by virtue of his agency,32 or embezzlement by public officers or officers of private. corporations or associations of money or property coming into their possession by virtue of their office.33

30

It has been held that a statute punishing embezzlement by any person to whom any money or property "shall be intrusted by his master or employer" applies only where the employee receives the money or property directly from his employer, and not where he collects money from a third person for his employer.84 But there is also authority to the effect that such a provision covers a case where money is collected from third persons by authority of the master.35

§ 531. Relation of trust or confidence. Some of the statutes expressly require that the property shall be held under a trust, or punish embezzlement by a person to whom money or property has been intrusted, in which case the existence of a trust relation is an es

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Massachusetts. Com. v. Williams, 3 Gray 461.

Texas. Grice v. State, 88 Tex. Cr. 106, 225 S. W. 172.

England. Reg. v. Newman, 8 Q. B. D. 706.

And other cases cited in the following notes and in §§ 531-538, infra. 28 State v. Stoller, 38 Iowa 321. 29 Reg. v. Newman, 8 Q. B. Div. 706. 30 See § 537, infra.

31 Reg. v. Cullum, 12 Cox C. C. 469, L. R. 2 C. C. 28; Reg. v. Harris, 6 Cox C. C. 363, 25 Eng. Law & Eq. 579, Dears. C. C. 344; Reg. v. Beaumont, Dears. C. C. 270.

Thus, where the captain of a vessel in the employ of the owner, whose

duty it was to receive and carry such cargoes as the owner should direct, and account for the proceeds, took on a cargo contrary to orders, on his own account, and received and appropriated the freight, it was held that he was not guilty of embezzlement. Reg. v. Cullum, 12 Cox C. C. 469, L. R. 2 C. C. 28.

32 The secretary of a local lodge of Odd Fellows cannot be convicted of embezzling money received by him as agent of the grand lodge, where he collected the money after the local lodge had been suspended by the grand lodge and hence after his agency for the grand lodge had ceased. Grice v. State, 88 Tex. Cr. 106, 225 S. W. 172.

33 See § 536, infra.

34 People v. Bailey, 23 Cal. 577. 35 Ex parte Ricord, 11 Nev. 287.

sential element of the offense. And a relation of trust and confidence is generally held to be necessary even where the statute is in the most general terms, and does not expressly require it.36

The terms fiduciary relationship or relation of trust or confidence, as here used, are not to be taken in a technical sense, but include every fiduciary relationship of trust and confidence.37 They mean the element of trust or confidence reposed in a person by reason of the delivery of property to him, which he voluntarily takes for safekeeping, and which he has violated by the wrongful conversion of the property.3

38

36 United States. United States v. Harper, 33 Fed. 471.

Alabama. Wall v. State, 2 Ala. App. 157.

California. People v. Dougherty, 143 Cal. 593, 77 Pac. 466; People v. Shearer, 143 Cal. 66, 76 Pac. 813; People v. McMahan, 133 Cal. 278, 65 Pac. 571; People v. Montarial, 120 Cal. 691, 53 Pac. 355; People v. Johnson, 91 Cal. 265, 27 Pac. 663.

Georgia. Fitzgerald v. State, 118 Ga. 855, 45 S. E. 666; Mobley v. State, 114 Ga. 544, 40 S. E. 728; Finkelstein v. State, 105 Ga. 617, 31 S. E. 589; Sewell v. State, 23 Ga. App. 765, 99 S. E. 320.

Illinois. People v. Dettmering, 278 Ill. 580, 116 N. E. 205.

Indiana. Frost v. State, 178 Ind. 305, 99 N. E. 419; Axtell v. State, 173 Ind. 711, 91 N. E. 354; Vinnedge v. State, 167 Ind. 415, 79 N. E. 353; Colip v. State, 153 Ind. 584, 55 N. E. 739, 74 Am. St. Rep. 322.

Iowa. State v. Finnegean, 127 Iowa 286, 103 N. W. 155, 4 Ann. Cas. 628. Kentucky. Com. v. Weddle, 176 Ky. 780, 197 S. W. 446; Com. v. Kelley, 125 Ky. 245, 101 S. W. 315, 15 Ann. Cas. 573; Com. v. Barney, 115 Ky. 475, 74 S. W. 181.

Massachusetts. Com. v. Hays, 14 Gray 62, 74 Am. Dec. 662; Com. v. Stearns, 2 Metc. 343.

A trust relationship is an essential element of larceny by bailee and of embezzlement in Texas. Berdell v. State, 87 Tex. Cr. 310, 220 S. W. 1101; Keeller v. State, 4 Tex. App. 527.

Placing money in a bank to be drawn upon by another is not the intrusting of money to him. The money is intrusted to him when he draws it out, and not until then. De Leon v. Territory, 9 Ariz. 161, 80 Pac. 348.

It is larceny and not embezzlement where the owner puts money or property into the hands of the defendant to do some act in relation to it in his presence, and the defendant converts it animo furandi, as where he converts money which he has permitted the owner to deposit in his trunk for safe-keeping, People v. Montarial, 120 Cal. 691, 53 Pac. 355; or money which he has induced the owner to place on a table in front of him by representing that he will show him how lottery drawings. are made and will then return the money. People v. Johnson, 91 Cal. 265, 27 Pac. 663.

In Schell v. United States, 261 Fed. 593, it was held that an employee of a mint was intrusted with coins which he appropriated.

37 Com. v. Weddle, 176 Ky. 780, 197 S. W. 446.

38 Com. v. Weddle, 176 Ky. 780, 197

It has been held to be immaterial that the owner of the property or money did not place it in the hands of the defendant voluntarily, but made such deposit in defendant's custody by reason of compulsion.39

§ 532. Money or property received by mistake. According to the weight of authority, the wrongful appropriation of money or property received by mistake is not embezzlement, since in such case there is no breach of a trust or violation of a confidence intentionally reposed by one party and voluntarily assumed by the other.40 But there is at least one holding to the contrary, where a servant or employee converted money which came into her custody by virtue of her employment." 41

§ 533. Where relation is that of debtor and creditor-In general. The failure to pay over or account for money is not embezzlement where the relation of the parties in respect to it is that of debtor and creditor,42 as, for example, where the transaction between them con

S. W. 446; Com. v. Barney, 115 Ky. 475, 74 S. W. 181; Com. v. Hays, 14 Gray (Mass.) 62, 74 Am. Dec. 662.

39 In a prosecution of a prison clerk for embezzling money belonging to convicts which was placed in his hands to keep for them, it is no defense that the convicts did not place the money in his hands voluntarily, but were compelled to do so by the prison authorities. Roland v. Com., 134 Ky. 170, 119 S. W. 760.

40 Com. v. Hays, 14 Gray (Mass.) 62, 74 Am. Dec. 662.

It is not theft by bailee under the Texas statute. Campos v. State, 84 Tex. Cr. 216, 207 S. W. 931; Fulcher v. State, 32 Tex. Cr. 621, 25 S. W. 625.

41 In Neal v. State, 55 Fla. 140, 46 So. 845, 19 L. R. A. (N. S.) 371, it was held that where a laundress found money in a basket of clothes sent to her to be washed, and appropriated it pursuant to an intent subsequently

formed, she was guilty of embezzlement.

42 United States. United States v. Mason, 218 U. S. 517, 54 L. Ed. 1133, 31 Sup. Ct. 28, aff'g 177 Fed. 552.

District of Columbia. Fulton V. United States, 45 App. Cas. 27. Illinois. People v. Belt, 271 Ill. 342, 111 N. E. 93.

Kentucky. Com. v. Abele, 160 Ky. 800, 170 S. W. 191.

Maryland. Williams V. United States Fidelity & Guaranty Co., 105 Md. 490, 66 Atl. 495.

Massachusetts. Com. v. King, 202 Mass. 379, 88 N. E. 454.

New York. People v. Thomas, 83 App. Div. 226, 82 N. Y. Supp. 215; People v. Flynn, 64 Misc. 276, 118 N. Y. Supp. 533.

Tennessee. Dixie Fire Ins. Co. v. Nelson, 128 Tenn. 70, 157 S. W. 416. See also the other cases cited in the following notes.

stitutes a sale on credit,48 or a loan,44 or in any other case where such failure merely amounts to a breach of contract.45

48 Echols v. State, 158 Ala. 48, 48 So. 347; State v. Abuchon, 159 Mo. 256, 60 S. W. 85; Pope v. State, 71 Tex. Cr. 261, 158 S. W. 527; McCrary v. State, 51 Tex. Cr. 496, 103 S. W. 926, 123 Am. St. Rep. 903. And see State v. Betz, 207 Mo. 589, 106 S. W. 64.

A person to whom goods are consigned to be sold, and who is at liberty to sell them at any price and on any terms he pleases, he paying a fixed price to the owner, is a vendee and not an agent, though the contract calls him an agent, and cannot be convicted of embezzlement because he fails to pay the owner. Jackson v. State, 2 Ala. App. 226, 57 Sơ. 110.

44 Colorado. Tashima v. People, 58 Colo. 98, 144 Pac. 200; Simpson v. People, 47 Colo. 612, 108 Pac. 169.

Illinois. People v. Belt, 271 Ill. 342, 111 N. E. 93.

Massachusetts. See Coyle v. United States Fidelity & Guaranty Co., 217 Mass. 268, 104 N. E. 559, Ann. Cas: 1917 C 450.

Oregon. State v. Chapin, 74 Ore. 346, 144 Pac. 1187.

Texas. Clark v. State, 61 Tex. Cr. 539, 135 S. W. 575.

Vermont. State v. Hopkins, 56 Vt.

250.

This is true even though the borrower, when he obtained the loan, had the fraudulent intent not to repay. Clark v. State, 61 Tex. Cr. 539, 135 S. W. 575.

45 Com. v. Stearns, 2 Metc. (Mass.) 343.

As where a person employed to procure a loan is paid a certain sum for his services, and agrees to return the same if the loan is not secured, but fails to do so, Johnson v. State, 102 Ark. 139, 143 S. W. 593; or where a

person places money in the hands of another to loan for him, looking to him for repayment, and relying upon his personal guaranty for a stipulated rate of interest, Kribbs v. People, 82 Ill. 425; or where the payee of nontransferable labor checks sells them, and when they are redelivered to him for collection, collects them and converts the proceeds, St. Clair v. State, 100 Ala. 61, 14 So. 544; or where a sales agent is authorized to trade machines for horses, and the principal is not obliged to accept them, but the agent is required to sell them and account in money, Webb v. State, 8 Tex. App. 310; or where a contract between a laundry and a driver creates the relation of debtor and creditor. State v. Covert, 14 Wash. 652, 45 Pac. 304.

An agreement that if an agent neglects to transmit the proceeds of a collection or sale to the principal, he shall pay interest thereon until payment is made, changes the relationship from that of principal and agent to that of debtor and creditor as to money so retained. State v. Adams, 108 Mo. 208, 18 S. W. 1000; Miller v. State, 16 Neb. 179, 20 N. W.

253.

A deposit made by an employee with his employer as security was held to create the relation of debtor and creditor, where it was not intended that it should be kept as a special deposit and returned in specie. Mulford v. People, 139 Ill. 586, 28 N. E. 1096.

Where an officer of a bank draws his personal check on the bank in favor of a personal creditor at a time when he has no funds to meet it, but the bank pays it in due course and charges him with the amount on the

§ 534. Effect of right to commingle funds. Ordinarily, it is not embezzlement for an agent to fail to pay over a balance due his principal, where, by the terms of his contract, he is authorized to commingle money received for the principal with his own funds and to substitute his personal obligation to the principal therefor,46 or where the principal has impliedly consented to his doing so,47 since in such case the relation is that of debtor and creditor. And the same has been held to be true of an agent or bailee who from the nature of his business impliedly has such authority, as in the case of auctioneers, brokers, factors, collection agents and the like.48 But this rule applies only where the agent is authorized to mingle the money of his principal with his own, so that its identity is lost by the consent of the owner and it cannot be followed, and the relation of debtor and creditor is established,49 and only where the agent acts

books, and the whole transaction is conducted openly and without concealment, he cannot be convicted of embezzling the check. State v. Jones, 25 Idaho 587, 138 Pac. 1116.

his

But the fact that a principal agrees to accept a certain sum from agent in settlement of the amount due him for goods sold does not change their relation to that of debtor and creditor. Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 554.

46 Foster v. State, 2 Pennew. (Del.) 111, 43 Atl. 265, aff'g 1 Pennew. 289, 40 Atl. 939.

This is true where a person for whom money is collected consents to its appropriation by a collector and knowingly assumes the relation of ordinary creditor. Ehrhart v. Rork, 114 Ill. App. 509.

47 Williams v. United States Fidelity & Guaranty Co., 105 Md. 490, 66 Atl. 495; Dixie Fire Ins. Co. v. Nelson, 128 Tenn. 70, 157 S. W. 416.

Evidence tending to show that, from the course of business, the defendant was permitted to deposit all money collected to his own credit and to remit by his own check is for the consideration of the jury, it being for

them to determine whether he had authority to mingle the money of his employer with his own, and so become a debtor for the amount belonging to the latter. Com. v. Smith, 129 Mass. 104.

But it has been held that where a check is made payable and delivered to the defendant as agent to pay a debt due his principal, it is not his property although he is accustomed to deposit money and checks collected for the principal to his individual credit and remit to him by his individual check, and the principal knows of this custom and acquiesces in it. Agar v. State, 176 Ind. 234, 94 N. E. 819.

48 Com. v. Hutchins, 232 Mass. 285, 122 N. E. 275; Com. v. Moore, 166 Mass. 513, 44 N. E. 612; Com. v. Foster, 107 Mass. 221; Com. v. Libbey, 11 Metc. (52 Mass.) 64, 45 Am. Dec. 185; Com. v. Stearns, 2 Metc. (43 Mass.) 343. And see Clark v. Com., 97 Ky. 76, 29 S. W. 973; Coyle v. United States Fidelity & Guaranty Co., 217 Mass. 268, 104 N. E. 559, Ann. Cas. 1917 C 450; Campbell v. State, 35 Ohio St. 70.

49 It does not apply to one em

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