However, the contrary is true under some statutes.88 And it is no defense that the owner was indebted to the accused where the money was not taken with the intention of paying or securing the debt.89 protecting his claim against the principal. State v. McCawley, Mo. -, 180 S. W. 869. As where he retains the money with a bona fide belief that the principal owes him money, and for the purpose of holding it until a settlement is effected and the amount due him ascertained, and for the purpose of satisfying his claims when ascertained, State V. Summers, 141 N. C. 841, 53 S. E. 856; or where a collection agent retains sums collected by him as security for costs in actions begun by him to collect other claims for the claimant, in the honest belief that he has a right to do so, State v. Lanyon, 83 Conn. 449, 76 Atl. 1095; or where an agent who has indorsed a note for his principal retains money collected for her in the honest belief that she is insolvent and that he will have to pay the note, State v. Foster, 1 Pennew. (Del.) 289, 40 Atl. 939, aff'd 2 Pennew. 111, 43 Atl. 265; or where an insurance agent claims credits against the company in excess of the amount which it claims is due it from him, Williams v. United States Fidelity & Guaranty Co., 105 Md. 490, 66 Atl. 495; or where an attorney retains money collected to apply on client's indebtedness to him for services. State v. Barnett, 98 S. C. 422, 82 S. E. 795. An agent charged with embezzling money which he claims to have used in paying office rent may show a parol agreement by the principal to pay the office rent, made at the time of the execution of a written contract of agency, though the written contract contains no such provision. The parol evidence rule does not ap ply under such circumstances. Walker v. State, 117 Ala. 42, 23 So. 149. The treasurer of a corporation who knowingly and designedly obtains its money by means of forged receipts and other wrongful acts may be convicted under a statute providing that whoever steals, or, with intent to defraud, obtains by false pretense, or whoever unlawfully and with intent to steal or embezzle, converts the money, etc., of another, shall be guilty of larceny, though his motive was to obtain payment of a debt which he claimed was due him from the corporation and though he believed his conduct was justified. Com. v. Peakes, 231 Mass. 449, 121 N. E. 420. 88 By express provision of the New York statute the appropriation must be under claim of title, and it is no excuse that the property was retained to offset or pay demands held against the owner by the defendant. J. W. Matthews Co. v. Employers' Liability Assur. Corporation, 127 N. Y. App. Div. 195, 111 N. Y. Supp. 76, aff'd 195 N. Y. 593, 89 N. E. 1102. 89 People v. Barnes, 158 N. Y. App. Div. 712, 143 N. Y. Supp. 885, appeal dismissed 210 N. Y. 612, 104 N. E. 1136. A claim of offset for payments made by the defendant is no defense where it was not made or entertained in his mind until after the conversion. Hanna v. Minnesota Life Ins. Co., 241 Mo. 383, 145 S. W. 417. An agent cannot escape liability on the ground that he retained money alleged to have been embezzled to indemnify him against loss on a note which he had indorsed for his prin § 550. Intent to use temporarily. It has been said by some courts that there must be an intent to permanently deprive the owner of his property, and that an intent merely to use it temporarily is not sufficient.90 But according to the weight of authority a person who, without right, uses for his own individual purposes or otherwise actually converts money or property intrusted to him, is none the less guilty because he intends at the time to merely use it temporarily and to restore it to the owner in the future.91 So it has been cipal, in the belief that she was insolvent and that he would have to pay it, where he had converted the money before he knew of her probable insolvency. State v. Foster, 1 Pennew. (Del.) 289, 40 Atl. 939, aff'd 2 Pennew. 111, 43 Atl. 265. 90 Fleener v. State, 58 Ark. 98, 23 S. W. 1. There must be an intention to make an absolute appropriation, as distinguished from a temporary use without design to defraud the owner or de prive him of his property. State v. Moyer, 58 W. Va. 146, 52 S. E. 30, 6 Ann. Cas. 344. And see Missouri and Texas cases cited in the following note. 91 United States. Agnew v. United States, 165 U. S. 36, 41 L. Ed. 624, 17 Sup. Ct. 235; Vives v. United States, 92 Fed. 355; United States v. Gilbert, 17 Int. Rev. Rec. 54, 2 Sumn. 19, Fed. Cas. No. 15,205; Griffin v. Zuber, 52 Tex. Civ. App. 288, 113 S. W. 961, under a federal statute. Arkansas. Russell v. State, 112 Ark. 282, 166 S. W. 540. California. People v. Jackson, 138 Cal. 462, 71 Pac. 566; People v. McLean, 135 Cal. 306, 67 Pac. 770. Georgia. Mangham v. State, 11 Ga. App. 427, 75 S. E. 512; Orr v. State, 6 Ga. App. 628, 65 S. E. 582. Illinois. Tonsor v. Fidelity & Deposit Co. of Maryland, 173 Ill. App. 383. Indiana. Fowler v. Wallace, 131 Ind. 347, 31 N. E. 53. Iowa. State v. Schumacher, 162 Iowa 231, 143 N. W. 1110. Kentucky. Morrow v. Com., 157 Ky. 486, 163 S. W. 452; Metropolitan Life Ins. Co. v. Miller, 114 Ky. 754, 71 S. W. 921; National Life & Accident Ins. Co. v. Gibson, 31 Ky. L. Rep. 101, 101 S. W. 895, 12 L. R. A. (N. S.) 717. Massachusetts. Com. v. Tuckerman, 10 Gray 173. Michigan. People v. Butts, 128 Mich. 208, 87 N. W. 224; People v. Warren, 122 Mich. 504, 81 N. W. 360, 80 Am. St. Rep. 582. Missouri. The rule stated in the text applies to embezzlement by public officers. State v. Manley, 107 Mo. 364, 17 S. W. 800; Mansur v. Lentz, 201 Mo. App. 256, 211 S. W. 97. In State v. Lentz, 184 Mo. 223, 83 S. W. 970, where an attorney was accused of embezzling money collected for a client, it was held that the offense is complete when the act of felonious conversion with intent to permanently deprive the owner of the property is committed, and that any subsequent intention to restore it will not constitute a defense, but that except where the offense charged is embezzlement by a public officer of a trust fund, the intent to permanently deprive the owner of his property, and the intent at some future time to restore it cannot be very well entertained at the same time, and that an instruction as to the effect of an intention to return held that a person who pledges or mortgages property intrusted to him to secure his own debt is none the less guilty because he intends to redeem it and restore it to the owner, or to pay the owner for it before his is called upon to account.92 § 551. Intent inferred or presumed. The necessary intent may be inferred from the circumstances surrounding the transaction,93 such the property should be made to refer to an intention formed after the commission of the offense. It is further held that under the statute any sort of speculation or conversion by a public officer of the trust fund in his hands makes the offense complete regardless of what he intended to do in the future, and the court distinguishes State v. Noland, 111 Mo. 473, 19 S. W. 715, on this ground. In State v. Britt, 278 Mo. 510, 213 S. W. 425, where the defendant was a bailee, it was said that there must be an intent to deprive the owner of his property permanently. The earlier Missouri cases do not recognize this distinction but apply the rule stated in the text even where the defendant was not a public officer. See State v. Silva, 130 Mo. 440, 32 S. W. 1007; State v. Pratt, 98 Mo. 482, 11 S. W. 977; Home Lumber Co. v. Hartman, 45 Mo. App. 647. Nevada. State v. Trolson, 21 Nev. 419, 32 Pac. 930. New Jersey. State v. Stimson, 24 N. J. L. 478. New York. People v. Meadows, 199 N. Y. 1, 92 N. E. 128, aff'g 136 App. Div. 226, 121 N. Y. Supp. 17; People v. Fitzgerald, 195 N. Y. 153, 88 N. E. 27, aff'g 130 App. Div. 124, 114 N. Y. Supp. 476; People v. Shears, 158 App. Div. 577, 143 N. Y. Supp. S61, aff'd 209 N. Y. 610, 103 N. E. 1129; People v. Britton, 134 App. Div. 275, 118 N. Y. Supp. 989. North Carolina. State V. Summers, 141 N. C. 841, 53 S. E. 856. Ohio. State v. Cameron, 91 Ohio St. 50, 109 N. E. 584; State v. Baxter, 89 Ohio St. 269, 104 N. E. 331, 52 L. R. A. (N. S.) 1019, Ann. Cas. 1916 C 60. Oklahoma. Duerksen v. State, 8 Okla. Cr. 601, 129 Pac. 881, 52 L. R. A. (N. S.) 1013. Oregon. State v. Chapin, 74 Ore. 346, 144 Pac. 1187. Texas. Nesbitt v. State, 65 Tex. Cr. 349, 144 S. W. 944, apparently adopts the rule stated in the text, though it does not clearly appear that the intent to return existed at the time of the conversion. In Taylor v. State, 50 Tex. Cr. 377, 97 S. W. 473, it is said that to constitute larceny by bailee there must be a fraudulent intent to deprive the owner of his property permanently. See also Farmer v. State (Tex. Cr.), 34 S. W. 620. Virginia. Shinn v. Com., 32 Gratt. 899. Wisconsin. State v. Leichan, 41 Wis. 565. 92 Spalding v. People, 172 Ill. 40, 49 N. E. 993; Com. v. Tenney, 97 Mass. 50; State v. Leicham, 41 Wis. 565. Of course this is true under the New York statute punishing stock. brokers who pledge securities belonging to their customers. People v. Atwater, 229 N. Y. 303, 128 N. E. 196, rev'g 191 App. Div. 345, 181 N. Y. Supp. 742. 93 Alabama. Ala. 31, 11 So. 158. Delaware. State v. Larmer, 7 Boyce (30 Del.) 279, 105 Atl. 789; State v. Reeves v. State, 95 as concealment of the receipt or appropriation of the money or property, the falsification of accounts, the expenditure of the money, flight, and the like. And it may also be inferred or presumed from the fact of a felonious or fraudulent appropriation or conversion, since everyone is presumed to know the law and to intend the natural and probable consequences of his acts.95 Such an intent cannot be inferred, Minnesota. State v. Baumhager, 28 Minn. 226, 9 N. W. 704. Missouri. State v. McWilliams, 267 Mo. 437, 184 S. W. 96. New Mexico. Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551. 95 United States. Agnew v. United States, 165 U. S. 36, 41 L. Ed. 624, 17 Sup. Ct. 235; McKnight v. United States, 111 Fed. 735; s. c., 115 Fed. 972; United States v. Youtsey, 91 Fed. 864; United States v. Harper, 33 Fed. 471. Alabama. Reeves v. State, 95 Ala. 31, 11 So. 158. Arkansas. Dotson v. State, 51 Ark. 119, 10 S. W. 18. California. People v. Jackson, 138 Cal. 462, 71 Pac. 566. Georgia. Lewis v. State, 17 Ga. App. 667, 87 S. E. 1087; Orr v. State, 6 Ga. App. 628, 65 S. E. 582. Illinois. Spalding v. People, 172 Ill. 40, 49 N. E. 993; Tonsor v. Fidelity & Deposit Co. of Maryland, 173 Ill. App. 383. Iowa. State v. Schumacher, 162 Iowa 231, 143 N. W. 1110. Kentucky. Morse v. Com., 129 Ky. 294, 111 S. W. 714; National Life & Acc. Ins. Co. v. Gibson, 31 Ky. L. Rep. 101, 101 S. W. 895, 12 L. R. A. (N. S.) 717. Louisiana. Union Nat. Bank V. United States Fidelity & Guaranty Co., 143 La. 329, 78 So. 582. Massachusetts. Com. v. Tenney, 97 Mass. 50; Com. v. Tuckerman, 10 Gray (Mass.) 173. Minnesota. State v. Kortgaard, 62 Minn. 7, 64 N. W. 51. Missouri. State V. McWilliams, 267 Mo. 437, 184 S. W. 96; Hanna v. Minnesota Life Ins. Co., 241 Mo. 383, 145 S. W. 412; State v. Lentz, 184 Mo. 223, 83 S. W. 970; State v. Silva, 130 Mo. 440, 32 S. W. 1007; State v. Noland, 111 Mo. 473, 19 S. W. 715; State v. McCawley, Mo. - 180 S. W. 869. New Jersey. State v. Reynolds, 65 N. J. L. 424, 47 Atl. 644. New York. People v. Meadows, 199 N. Y. 1, 92 N. E. 128, aff'g 136 App. Div. 226, 121 N. Y. Supp. 17; Marcus v. Fidelity & Deposit Co. of however, from the mere fact that a person has possession of or uses for his own purposes funds intrusted to him, where such possession or use may be rightful or innocent.96 Generally this presumption or inference is not a conclusive one, and the defendant may rebut it by showing that he did not have such intent.97 But where the statute merely declares that the doing of certain acts shall constitute embezzlement, without in terms or by implication requiring a fraudulent intent, such an intent is conclusively presumed from the doing of such acts, not under a mistake of fact, and need not be alleged or otherwise proved, or, as the rule is sometimes stated, no other intent than an intent to do the prohibited acts need be shown.98 By statute in some Maryland, 164 N. Y. App. Div. 859, 149 N. Y. Supp. 1020. See generally § 91, supra. 96 State v. Barnes, 108 Minn. 227, 122 N. W. 4; State v. McDonald, 133 N. C. 680, 45 S. E. 582. The mere fact that a guardian deposits funds of his ward in his own name and uses them in his business does not raise a presumption of criminal intent, since he has complete charge of the property of the ward, and he and the sureties on his bond are liable for any resulting loss. Ambrose v. United States, 45 App. Cas. (D. C.) 112. 97 McKnight v. United States, 115 Fed. 972; United States v. Youtsey, 91 Fed. 864; Spalding v. People, 172 Ill. 40, 49 N. E. 993; State v. Rowell, 172 Iowa 208, 154 N. W. 488. And see generally § 94, supra. 98 Alabama. Ex parte Cowart, 201 Ala. 525, 78 So. 879. District of Columbia. Patterson v. United States, 39 App. Cas. 84; O'Brien v. United States, 27 App. Cas. 263. Missouri. State v. Martin, 230 Mo. 1, 129 S. W. 931, 139 Am. St. Rep. 628; State v. Silva, 130 Mo. 440, 32 S. W. 1007. Nevada. State v. Trolson, 21 Nev. 419, 32 Pac. 930. New York. People v. Atwater, 229 N. Y. 303, 128 N. E. 196, rev'g 191 App. Div. 345, 181 N. Y. Supp. 742. Oregon. State v. Chapin, 74 Ore. 346, 144 Pac. 1187; State v. Ross, 55 Ore. 450, 104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601, 613. Vermont. State v. Hopkins, 56 Vt. 250. An intent to defraud is not essential under a statute making it an offense for an officer of a bank to knowingly overdraw his account therein for his own private use and benefit. State v. Stimson, 24 N. J. L. 478. A town treasurer who in violation of the statute, intentionally and knowingly deposits the town's money in his own name, and uses it in his own business, cannot claim that he did not intend to commit a crime, and hence was not guilty of embezzlement. Mansur v. Lentz, 201 Mo. App. 256, 211 S. W. 97. Under a statute making it larceny for an officer of a trust company to become indebted to it, the law will infer a felonious intent to appropriate the funds of the company from the fact that an officer becomes indebted to it, and no specific intent need be shown. Proof of the indebtedness makes out a prima facie case. |