property received or taken into his possession "by virtue of his employment," "or in the course of his employment," the money or property must have been so received in order to make its conversion embezzlement.78 And in at least one state it has been held that the money or property must have been received by the accused by virtue of his employment even where the statute does not expressly so provide.79 It is not embezzlement, under this rule, for a servant or employee to convert to his own use money or property to which he merely has access by reason of his employment, but of which he has neither the custody nor the possession.80 But it is embezzlement where the 78 United States. United States v. Allen, 150 Fed. 152. Alabama. Pullam v. State, 78 Ala. 31, 56 Am. Rep. 21; Gleason v. State, 6 Ala. App. 49, 60 So. 518. District of Columbia. Talbert v. United States, 42 App. Cas. 1. Florida, Minor v. State, 55 Fla. 77, 46 So. 297. Iowa. State v. Goode, 68 Iowa 593, 27 N. W. 772. Mississippi. Davis v. State, 108 Miss. 710, 67 So. 178. Tennessee. Johnson v. State, 9 Baxt. (68 Tenn.) 279. Texas. State v. Johnson, 21 Tex. 775; Brady v. State, 21 Tex. App. 659, 1 S. W. 462; Griffin v. State, 4 Tex. App. 390; Smith v. State, 53 Tex. Cr. 117, 109 S. W. 118, 17 L. R. A. (N. S.) 531, 15 Ann. Cas. 435. England. Rex v. Mellish, Russ. & R. 80. And see the cases cited in the following notes and the statutes of the various states. A laundress who finds money accidentally placed in a basket of soiled clothes by her employer acquires the custody thereof by virtue of her employment. Neal v. State, 55 Fla. 140, 46 So. 845, 19 L. R. A. (N. S.) 371. Money intrusted to a stage driver to be carried from one city to another comes into his possession by virtue of his employment. People v. Sherman, 10 Wend. (N. Y.) 298, 25 Am. Dec. 563. And the same is true of letters containing money, given to a barkeeper in an inn to mail, where it was customary for barkeepers in the inn to take letters to the post office. People v. Dalton, 15 Wend. (N. Y.) 581. 79 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; State v. Winstandley, 155 Ind. 290, 58 N. E. 71. And see Moore v. United States, 160 U. S. 268, 40 L. Ed. 422, 16 Sup. Ct. 294. 80 Minor v. State, 55 Fla. 77, 46 So. 297. So it is larceny and not embezzlement for officers, agents or servants of a bank to steal its money, where their duties are such that they have no connection with the money of the bank, but their employment merely affords them an opportunity to reach and take it. State v. Winstandley, 155 Ind. 290, 58 N. E. 71. And a person who boarded with a farmer, and occasionally did small jobs of work for him, and who, during his absence, broke open a box containing wheat and stole some of it, was held not to be guilty of embezzlement under such a provision. Colip money or property comes into his possession in pursuance of a special direction of the master to receive it, though out of the ordinary course of his employment.81 According to the weight of authority, a man may receive property by virtue of his employment, or in the course of his employment, and be guilty of embezzlement in converting the same, though he may have acted in excess of his authority in receiving it,82 but there is also authority to the contrary.8 83 Under some statutes it is not necessary that the money or property should have been received by the defendant by virtue of his v. State, 153 Ind. 584, 55 N. E. 739, 74 Am. St. Rep. 322. And see 536, supra. 81 State v. Costin, 89 N. C. 511; Rex v. Smith, 1 Lewin C. C. 86 Russ. & R. 516. 82 California. Ex parte Hedley, 31 Cal. 108. Illinois. See Ker v. People, 110 Ill. 627, 51 Am. Rep. 706. Missouri. State v. Lipscomb, 160 Mo. 125, 60 S. W. 1081. North Carolina. State v. Costin, 89 N. C. 511. Texas. Smith v. State, 53 Tex. Cr. 117, 109 S. W. 118, 17 L. R. A. (N. S.) 531, 15 Ann. Cas. 435. Utah. State v. Gibson, 37 Utah 330, 108 Pac. 349. Where an officer of a corporation was given checks signed in blank with instructions to fill them in with the amounts due corporate creditors, draw the money, and pay the claims, but filled them in for a larger amount, drew the money, and converted the same, it was held that he received the money by virtue of his employment. People v. Gallagher, 100 Cal. 466, 35 Pac. 80. In Rex v. Beechey, Russ. & R. 318, it was held that a clerk who was authorized to receive money at home which outdoor collectors received abroad from customers, and who, in one instance, took a sum of money directly from a customer out of doors, was within the statute. And in Rex v. Williams, 6 Car. & P. 626, it was held that a servant was none the less guilty of embezzlement because he received the money from one of a class of persons from whom he was not authorized to receive money. See also Reg. v. Aston, 2 Car. & K. 413. That one receiving money on the assumption of agency for another may be estopped to deny the agency, see § 538, infra. 83 State v. Johnson, 49 Iowa 141; Reg. v. Cullum, L. R. 2 Cr. Cas. 28, 12 Cox C. C. 469; Rex v. Hawtin, 7 Car. & P. 281; Reg. v. Harris, Dears. C. C. 344, 6 Cox C. C. 363. In Rex v. Snowley, 4 Car. & P. 390, Parke, J., held that a servant who was employed to lead a stallion, and who received a sum for the hire of the same, which was less than he was authorized by his master to take, and converted the same to his own use, was not within the statute, because the receipt of the money was not within his authority, and therefore not "by virtue of his employment.'' In Brady v. State, 21 Tex. App. 659, 1 S. W. 462, a clerk who collected money owing to his employer was held not to have received it by virtue of his employment, where he had no authority whatever to collect money for his employer. employment,84 and where such is the case authority from the master to receive it need not be shown.85 § 538. Estoppel. According to the weight of authority, one who assumes to act for another, and thereby receives money or property for him or on his account, is estopped to deny his authority to so act, or the right of such other person to such money or property, in order to escape responsibility for embezzling it.86 So it has been held that a guardian prosecuted for embezzling money collected by him as the property of his ward cannot defend on the ground that such money did not legally belong to the latter; 87 that the treasurer of an unincorporated association will not be permitted to say that it was organized for an unlawful purpose in order to escape liability 84 Imboden v. People, 40 Colo. 142, 90 Pac. 608. 85 Foster v. State, 2 Pennew. (Del.) 111, 43 Atl. 265, aff'g 1 Pennew. 289, 40 Atl. 939. A statute requiring that the property shall have been received for or in the name or on account of the master does not make it necessary that the accused shall have had authority to receive the property, either express or implied. Reg. v. Cullum, L. R. 2 C. C. 28, 12 Cox C. C. 469. 86 United States. United States v. United States Brokerage & Trading Co., 262 Fed. 459. California. People v. McLean, 135 Cal. 306, 67 Pac. 770; People v. Leonard, 106 Cal. 302, 39 Pac. 617. People v. Gallagher, 100 Cal. 466, 35 Pac. 80; People v. Treadwell, 69 Cal. 226, 10 Pac. 502; Ex parte Hedley, 31 Cal. 108; People v. Robertson, 6 Cal. App. 514, 92 Pac. 498. Kansas. State v. Spaulding, 24 Kan. 1. Kentucky. Morse v. Com., 129 Ky. 294, 111 S. W. 714. Missouri. State v. Silva, 130 Mo. 440, 32 S. W. 1007. Nevada. Ex parte Ricord, 11 Nev. 287. New Jersey. State v. Reynolds, 65 N. J. L. 424, 47 Atl. 644. North Carolina. State v. Costin, 89 N. C. 511. Ohio. State v. Gross, alias Kimble, 91 Ohio St. 161, 110 N. E. 466; State v. Pohlmeyer, 59 Ohio St. 491, 52 N. E. 1027. A person who receives a draft and the proceeds thereof as treasurer of an association, and embezzles the money, is estopped to assert that it was not a valid draft, or that the proceeds were not the moneys of the association. People v. Royce, 106 Cal. 173, 37 Pac. 630, 39 Pac. 524. Where a blank warrant is delivered to the secretary of a school board with authority to fill it out for the amount of a claim against the board, but he fills it out for a larger amount and appropriates the excess, he will be estopped to assert that he did not receive the excess as bailee. Compton v. State, 102 Ark. 213, 143 S. W. 897. And see the other cases cited in the following notes. 87 Ellington v. State, 7 Okla. Cr. 252, 123 Pac. 186. for embezzling its funds; 88 that a person prosecuted for embezzling money as an attorney cannot escape prosecution because he was never admitted to practice in the state; 89 and that as against an agent or employee of a corporation, who embezzles its property by means of the facilities which his employment and the trust and confidence imposed in him afford, it is sufficient to show that it was a corporation de facto,90 and that he cannot call in question its organization or existence,91 or escape liability on the ground that the money or property embezzled was acquired or held by it in violation of its charter,92 or, in the case of a foreign corporation, that it had not complied with the laws of the state relative to such corporations, and hence was not entitled to do business there.93 In a prosecution for embezzling the proceeds of a sale of astray freight sold by authority of the federal government while the railroads were under government control, it was held that the defendant could not question the power of the government to make the sale or its right to the proceeds.94 And it is generally held that a person charged with embezzling money collected or received by him as an officer of a municipality will not be permitted to deny that he had authority to receive the money so embezzled, either because there was no law or ordinance authorizing him to collect it,95 or because a law or ordinance purporting to do so is invalid,96 or because of any other irregularity in its receipt.97 88 State v. Skinner, 210 Mo. 373, 109 S. W. 38. 89 Price v. State, 10 Okla. Cr. 427, 137 Pac. 736. 90 People v. Leonard, 106 Cal. 302, 39 Pac. 617; Kossakowski v. People, 177 Ill. 563, 53 N. E. 115; People v. Carter, 122 Mich. 668, 81 N. W. 924; Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121. 91 State v. Reynolds, 65 N. J. L. 424, 47 Atl. 644; Shinn v. Com., 32 Gratt. (Va.) 899. 92 Leonard v. State, 7 Tex. App. 417. 93 People v. Hawkins, 106 Mich. 479, 64 N. W. 736; State v. Pohlmeyer, 59 Ohio St. 491, 52 N. E. 1027; State v. O'Brien, 94 Tenn. 79, 28 S. W. 311, 26 L. R. A. 252. See also § 520, supra. But some courts have held that the doing of acts forbidden by a statute which applies only to persons of a particular class does not estop the defendant from denying that he belongs to that class, and hence that a public officer who receives public money and converts it to his own use is not thereby estopped to assert that he was not charged with its collection, as a defense to a prosecution under a statute punishing the embezzlement of public moneys by an officer charged with collecting the same.98 VI. THE CONVERSION OR EMBEZZLEMENT § 539. Necessity for conversion. Generally a fraudulent conversion or misappropriation of the money or property intrusted to the accused is an essential element of the offense.99 And the term "em 98 Sherrick v. State, 167 Ind. 345, 79 N. E. 193; Moore v. State, 53 Neb. 831, 74 N. W. 319. 99 United States. United States v. Harper, 33 Fed. 471. Alabama. Knight v. State, 152 Ala. 56, 44 So. 585; Henderson v. State, 129 Ala. 104, 29 So. 799; Reeves v. State, 95 Ala. 31, 11 So. 158. California. People v. Page, 116 Cal. 386, 48 Pac. 326; People v. Wyman, 102 Cal. 552, 36 Pac. 932; People v. Schroeder, Cal. App. -, 185 Pac. 507; People v. McMahill, 4 Cal. App. 225, 87 Pac. 404. Florida. Rast v. State, 79 Fla. 772, 84 So. 683. Illinois. People v. Ehle, 273 Ill. 424, 112 N. E. 970. Indiana. State v. Ensley, 177 Ind. 483, 97 N. E. 113, Ann. Cas. 1914 D 1306. Iowa. State v. Wilson, - Iowa 179 N. W. 305; State v. Schumacher, 162 Iowa 231, 143 N. W. 1110. Louisiana. State v. Palmer, 32 La. Ann. 565. Minnesota. State v. Baumhager, 28 Minn. 226, 9 N. W. 704. Mississippi. Bell v. State, 110 Miss. 430, 70 So. 456. Missouri. State v. Britt, 278 Mo. 510, 213 S. W. 425; Hanna v. Minnesota Life Ins. Co., 241 Mo. 383, 145 S. W. 412. Nebraska. Higbee v. State, 74 Neb. 331, 104 N. W. 748. Ohio. Shelley v. State, 19 Ohio Cir. Ct. (N. S.) 164, aff'd 85 Ohio St. 481, 98 N. E. 1134. Oklahoma. Rogers v. State, 14 Okla. Cr. 235, 170 Pac. 269, L. R. A. 1918 E 742; Blake v. State, 12 Okla. Cr. 549, 160 Pac. 30, L. R. A. 1917 B 1261. Texas. Dickey v. State, 65 Tex. Cr. 374, 144 S. W. 271. England. Reg. v. Chapman, 1 Car. & K. 119. The mere fact that a bank lost money at a time when the defendant was in charge of it will not justify a conviction unless the evidence shows that he was responsible for the loss by converting the money to his own use. People v. Dettmering, 278 Ill. 580, 116 N. E. 205. |