*In a case upon the 39 Geo. 3. an indictment was holden to be defective, *466] because it did not expressly aver that the money alleged to have been stolen was the money of any particular person. It was contended, on a case reserved, that as the statute had not made embezzlement eo nomine a substantive felony, but had only enacted, that the property received into the possession of the servant, and feloniously converted by him, should be considered as having been by such conversion feloniously taken from the possession of the master, the offence still continued a common law larceny; and that consequently an indictment framed upon the statute must contain all the requisites of an indictment for larceny at common law. For the Crown it was argued, that the statute made the embezzling by servants a substantive felony, which before was only a misdemeanor, or breach of trust, for which the master had a civil remedy. That it was therefore sufficient to follow the words of the Act, as in other instances where new offences were created; which differed from indictments on statutes merely ousting the offender from clergy in cases which were before larcenies at common law. The judges at first doubted much upon this case, but ultimately a majority of them were of opinion that the indictment was defective, as it did not aver that the money alleged to have been stolen was the money of the prosecutors; that the statute made the offence a larceny, and made the possession of the servant, under such circumstances, the possession of the master.(0)

By sec. 71, where the offence shall relate to any money or valuable security, it shall be sufficient to allege the embezzlement to be of money without specifying any particular coin or valuable security; and such allegation, so far as regards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed, shall not be proved (p) This enactment will prevent difficulties experienced in the prosecution of offenders under the former statutes. Under the 39 Geo. 3, c. 85, it had been holden that if the evidence did not show that the prisoner embezzled some part of the property specified the case failed. An indictment stated that the prisoner received £1 2s. 6d. in moneys numbered, and £6 in one pound notes, and embezzled part thereof, namely, fifteen shillings and seven pence in moneys numbered, and one £1 note: the evidence was that he received at the same time much other money, and many other notes, but that instead of giving credit for £7 2s. 6d., he only gave credit for £5 6s. 10d. Upon a case reserved, the judges held, that as he might have paid over the whole of what he received for the £7 2s. 6d., and have taken the £1 15s. 7d. from the other moneys he received, he was improperly convicted. there being *467] nothing to show that he had stolen any part of that money which he was charged with stealing. (q) But it *was also holden upon that statute, that if a servant immediately on receiving a sum for his master entered a smaller sum in his master's books, and ultimately accounted to his master for the smaller sum only, he might be considered as embezzling the difference at the time he made the entry; at least that the jury might so find. And that it would not alter the case if he received other sums for his master on the same day, and in paying those and the smaller sum to his master together, he might have given his master every piece of money, or every note he had received at the time he made the false entry. The prisoner received for his master from Mrs. W. eighteen one pound notes, and immediately entered in his master's books £12 only: in the course of the day he

(0) M'Gregor's case, 2 Leach 932; 3 B. & P. 106; 2 East P. C. c. 16, s. 18, p. 576; R. &

R. 23.

(p) See the section, ante, p. 413.

(9) Rex v. Tyers, MS., Bayley, J., and R. & R. 402. The notes had been in the master's possession, who took them and placed them on a heap with others before the prisoner, and this objection was made by the prisoner's counsel, and seemed to be acquiesced in, and the case confined to the £1 2s. 6d. only, which was in silver. It also appeared that the prisoner at first gave credit for the £7 2s. 6d., and entered it in the proper book in his own hand, but he afterwards erased that sum, and substituted the £5 6s 10d., and as he might have paid over every note in question, and either paid over or passed away in change every piece of silver in question, the judges thought Rex v. Furneaux, R. & R. 335, in point.

received, for his master, £104 more, and after that time paid him £116. The indictment charged him with embezzling six of the notes which he received from Mrs. W., and it was urged, that he might have paid over in the £116 every one of the notes which he received from Mrs. W.; and if so, that he could not be said to have embezzled any of those specific notes. Bayley, J., told the jury that as in what he paid, he paid only £12 as and for all he had received from Mrs. W., and paid the other £104 as and for moneys received of other persons, he ought to be considered as having embezzled six of the notes he received from Mrs. W., because he would then have misapplied six of those specific notes to his own benefit, and to his master's prejudice. And, upon a case reserved, nine judges (Best, J., being absent,) thought it an embezzlement from the time of making the false entry. Wood, B, rather thought otherwise; and Abbott, C. J., thought that the point should have been left to the consideration of the jury.(r)

Where an indictment upon the 39 Geo. 3, c. 85, charged that the prisoner was employed as a clerk to A., and that, by virtue of his employment, he received from B., on account of his master, £9 18s. 9. without showing of what moneys that sum was made up, and that he fraudulently embezzled the same, omitting the word feloniously; and it concluded; and so the jurors say that he did "feloniously embezzle, steal, take, and carry away, &c. ;" objection was made, that in the introductory part of the indictment it was not alleged that he did feloniously embezzle, &c., and that therefore the indictment failed to show that he had committed a felony, and that, unless it was so shown in the body of the indictment, it was not enough that it was so alleged in the conclusion of it. The judges, however, held it to be sufficient that it was stated in the conclusion.(s)

A count containing three charges of embezzlement, and not alleging that the sums of money were embezzled within six calendar months, is bad. The indictment alleged that the prisoner, on the 15th day of November, was servant to H. Hodges, and did then and there by virtue, &c., receive £2 1s. 6d. on account of his [*468 master; and that the prisoner afterwards and within the space of six calendar months, to wit, on the 16th day of November, in the year aforesaid, did receive the further sum of £2 3s. on account, &c.; and that the prisoner, afterwards and within the space of six calendar months from the day first aforesaid, to wit, on the 17th of November in the year aforesaid, did receive the further sum of £2 1s. on account, &c; and that the prisoner on the several days aforesaid, in the year aforesaid, the several sums of money respectively received by him on each of those days as aforesaid, feloniously did embezzle; and so the jurors do say that the prisoner, in manner and form aforesaid, feloniously did steal the said several sums of money, against the form of the statute. Upon demurrer, it was objected that the indictment was bad; 1st, because it contained three offences in one count; whereas the statute only authorized the inserting three offences in three different counts. 2dly, that it did not show that the three offences were committed within six calendar months; for although the receipt of the money might be within six calendar months, the embezzlement might not be within that period. 3dly, that the indictment charged a joint stealing on three different days. And lastly, that there was only one contra pacem to three different offences. And the indictment was held bad. At common law it would have been bad, because the contra pacem could not be applied to one more than to another of the offences charged; and it was not rendered good by the 7 & 8 Geo. 4, c. 29, s. 48. Under that section it was necessary to allege that the embezzlements were within six calendar months; now the offence is not the receipt of the money, but the embezzlement of it, and in this case, although there was an averment that the moneys were received within six calendar months, there was no allegation that they were embezzled within that period; and therefore the indictment was bad.(t)

(r) Rex v. Hall, MS., Bayley, J., and R. & R. 463.

(*) Rex v. Crighton, MS., Bayley, J., and R. & R. 62; Rex v. Johnson, 3 M. & S. 540. (t) Reg. v. Purchase, Gloucester Spr. Ass. 1842, MSS. C. S. G. s. c., C. & M. 617, Patteson, J., after consulting Cresswell, J. The very learned judge expressed no decided opinion whether or not three offences could be included in one count, but said that the safer course was to have three separate counts. His lordship cited a case of Reg v. Jeyes,

An indictment for embezzlement contained three counts; the first in the usual form; the second alleged that "afterwards and within six calendar months from the day mentioned in the first count of this indictment, to wit, &c., the prisoner did by virtue of his employment receive, &c., and the said last mentioned money, to wit, on the day and year last aforesaid, feloniously did embezzle." The third count was in the same form as the second. It was objected that the second and third counts were bad; as there was no allegation that the money was embezzled within six calendar months from the offence charged in the first count, and Cresswell, J., held the second and third counts bad, and confined the counsel for the prosecution to evidence on the first count only (u)

We have seen that the 24 & 25 Vict. c. 96, s. 71, provides that in every indict*469] ment, except where the offence relates to some *chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin, or valuable security. Where the offence relates to some chattel, the same description as in larceny will be sufficient. (v)

As an indictment for embezzlement is so general as to afford no information to the prisoner of the precise sums embezzled, or of the persons from whom they were received, the prisoner is entitled to be furnished by the prosecutor with a particular of the charges intended to be made; and if the prosecutor refuse to give such particular, the court on motion, founded upon affidavit, will order a particular to be given, and such particular should contain the names of the persons from whom the sums of money are alleged to have been received. (w)

Where there is only one count, and the prisoner has received different sums on different days, amounting to the sum laid in that count, the prosecutor must elect one sum, and confine his evidence to that sum. Upon an indictment for embezzling 11s. 10d., it appeared that the prisoner had received money in different sums, upon different days, amounting in the whole to the sum mentioned in the indictment, and it was held that the prosecutor must select one sum received on one particular day, and confine his evidence to that sum.(x)

Two cases occurred upon the 39 Geo. 3, c. 85, in which questions were raised as to the county in which the offence within t..at statute might be considered as having been so completed as to authorize a trial in such county.

In the first of these cases the prisoner was indicted in the county of Salop. The residence of the master was at Lichfield, in Staffordshire, where the prisoner served him in his trade. On a Saturday, both of them were at Shrewsbury; and the master having authorized a person named Beaumont to collect some debts for him at that place, returned home the same morning, leaving the prisoner at Shrewsbury to receive the money from Beaumont, and bring it to him at Lichfield the same night. The prisoner received the money from Beaumont about noon, and also a letter for his master which had been left at Beaumont's, but which did not relate to the money transaction. He left Shrewsbury soon after, but did not go to his master at Lichfield till the following evening. He then delivered the letter; and being asked about the money, he said he had not received any. A few days after, the master, in consequence of information he had received by letter, charged the prisoner with having received the money, and another servant who had been at Shrewsbury on the Saturday, being present, told the prisoner that he had seen him receive money, but the prisoner persisted in denying that he had received any. Some time afterwards, the master, having received further intelligence, bid the where an indictment, exactly the same as the one in this case, except that the words "within six calendar months" were not introduced, had been held bad by Lord Abinger, C. B., and himself, at Warwick. C. S. G.

(u) Reg. v. Noake, 2 C. & K. 620 (61 E. C. L. R.).

(v) See ante, p. 312, et seq.

(w) Rex v. Hodgson, 3 C. & P. 422 (14 E. C. L. R ), Vaughan, B.; Rex v. Bootyman, 5 C. & P. 300 (24 E. C. L. R.), Littledale, J. The affidavit should state that the prisoner did not know the charges intended to be brought against him, that it was necessary for his defence to be furnished with the particular charges, and that he had applied to the prosecutor for a particular and been refused.

(x) Rex v. Williams, 6 C. & P. 626 (25 E. C. L. R.), Arabin, Serjt., after consulting Gaselee, J., Alderson, B., and Gurney, B.

[*470

prisoner go to Shrewsbury to clear himself. *On the Saturday following the prisoner went to Beaumont, at his house in Shrewsbury, and desired him to make a search on the left-hand side of the room in which they had been; but no search was made, Beaumont telling him it was of no use to search, as he had received the money from him. The jury having found the prisoner guilty, a case was reserved upon two questions; first, whether, under this statute, an indictment might not be found and tried in the county where the money or goods were received, although there were no evidence of any other fact locally arising within the same county? and, secondly, whether, if further local proof were necessary, the subsequent conduct of the prisoner at Shrewsbury were not sufficient to obviate the objection, as being an act in furtherance of the purpose of secreting or embezzling? A majority of the judges were of opinion that the conviction was right. Lawrence, J., thought, that embezzling being the offence, there was no evidence of any offence in Shropshire, and that the prisoner was improperly indicted in that county. But the other judges were of opinion that the indictment might be in Shropshire where the prisoner received the money, as well as in Staffordshire where he embezzled it by not accounting for it to his master; that the statute having made the receiving property and embezzling it amount to a larceny, made the offence a felony where the property was first taken, and that the offender might therefore be indicted in that or in any other county into which he carried the property.(y)

In the other case, the indictment charged the prisoner with embezzling the sum of ten shillings, the property of his master, J. Barker. The prosecutor, who was a fishmonger in Drury-lane, in the county of Middlesex, sent his servant, the prisoner, with some herrings to a street in Blackfriars-road, in the county of Surrey, to a Mrs Stevens; telling him that he was to receive the sum of ten shillings for them. He went with the herrings about six o'clock in the evening, and delivered them to Mrs. Stevens, who paid him the ten shillings; after which he returned to his master, who asked him if he had brought the money; to which he replied, that he had not, for that Mrs. Stevens had not paid him. His master then paid him his weekly wages (it being on a Saturday), and he went away, to return on Monday morning as usual; but he did not return, nor did he ever account for the money. It was contended that the prisoner was only liable to be indicted in Surrey, where the money was received; and the jury having found him guilty, this point was reserved for the consideration of the judges. The opinion of the judges was afterwards delivered by Lord Alvanley, C. J., who first referred to the foregoing case of Hobson, and then proceeded, In the present case no doubt can be entertained. The prisoner, being sent over Blackfriars-bridge into the county of Surrey, there received ten shillings for his master. The receipt of that money was perfectly legal, and there was no evidence that he ever came to the determination of appropriating the money to his own use until after he had returned into the county of Middlesex. It was not proved that the money ever was embezzled until the prisoner was in the *county of Middlesex. In cases of this sort the nature of the thing embez [*471 zled ought not to be laid out of the question. The receipt of money is not like the receipt of an individual thing, where the receipt may be attended with circumstances which plainly indicate an intention to steal, by showing an intention in the receiver to appropriate the thing to his own use. Thus, if a servant receive a horse for his master, and sell it before he gets out of the county where he first received it, it might be said that he is guilty of the whole offence in that county. But with respect to money, it is not necessary that the servant should deliver over to his master the identical pieces of money which he receives, if he should have lawful occasion to pay them away. In such a case as this, therefore, even if there had been evidence of the prisoner having spent the money on the other side of Black friars-bridge, it would not necessarily confine the trial of the offence to the county of Surrey. But here there is no evidence of any act to bring the prisoner within the statute until he is called upon by his master to account. When called upon by his master to account for the money the prisoner denied that he had ever received it. This was the first act from which the jury could with certainty say

(y) Hobson's case, 1 East P. C., Addenda, xxiv, and R. & R. 56.

that the prisoner intended to embezzle the money. In this case there was no evidence of the prisoner having done any act to embezzle in the county of Surrey, nor could the offence be complete, nor the prisoner be guilty within the statute. until he refused to account to his master. We are, therefore, of opinion that the prisoner was properly indicted in the county of Middlesex."(z)

Upon the trial of an indictment for embezzlement at the assizes for the town of Nottingham, it appeared that the prisoner was a travelling salesman, and his duty was to go into Derbyshire every Monday. and to sell goods and receive the money for them there, and to return with it to his master on a Saturday in Nottingham (where both he and his master lived). (a) The prisoner received the moneys mentioned in the indictment on the 6th of May in Derbyshire, and did not return the following Saturday, nor at all to his master's. There was no evidence of what became of him till two months after, when he was met in Nottingham by his master, who asked him what he had done with the money, and he said he was sorry for what he had done; he had spent it; and, upon a case reserved upon the ques tion whether the prisoner could be properly convicted on this evidence of embez zlement in the town of Nottingham, the judges held that there was evidence to go to the jury that the embezzlem nt was committed in the town of Nottingham.(b) *It should be observed that by the 7 Geo. 4, c. 64, s. 12. where a felony *472] is begun in one county, and completed in another, such felony may be dealt with, inquired of, tried, determined, and punished in any of the said counties, in the same manner as if it had been actually and wholly committed therein.

By sec. 98 of the 24 & 25 Vict. c. 96. principals in the second degree and acces sories before the fact, are punishable in the same manner as principals in the first degree; and accessories after the fact (except receivers of stolen property) are liable to be imprisoned for any term not exceeding two years.(c)

Upon the trial of any indictment for any offence in this chapter the jury may, under the 14 & 15 Vict. c. 100, s. 9, (d) convict the prisoner of an attempt to commit the same, and, thereupon, he may be punished in the same manner as if he had been convicted upon an indictment for such attempt.

(2) Taylor's case, 3 Bos. & Bul. 596; 2 Leach 974; R. & R. 63. (a) This was stated in the argument.

(b) Reg. v. Murdock, 2 Den. C. C. 298. Lord Campbell, C. J., thought there was evidence that the prisoner had spent the money in Nottingham. Parke, B., was of opinion "that the prisoner's not returning and accounting to his master in Nottingham, as it was his duty to do, was equivalent to embezzlement in Nottingham. The mere fact of his spending the money does not itself constitute embezzlement. There must be a refusal to account, or a non-accounting," citing Rex v. Taylor, supra Maule, J., differed from Parke, B., in the reasons given by him, and thought "that the offence was committed when, two months after the receipt of the money, the prisoner met his master in Nottingbam, and being asked by his master respecting the money, did not account to him for it. The offence was then complete, and the prisoner became liable to be indicted in Nottingham. The mere omission to account, if the prisoner had never returned to Nottingham, would not have rendered him liable to be tried in Nottingham. Suppose that he had gone to Derbyshire, and stayed there six months, and never returned to Nottingham, be would, according to my brother Parke's view, if apprehended in Derbyshire, have been indictable in Nottingham. I cannot think that can be so. Some of the cases say that non-accounting is sufficient evidence of embezzlement; but in all these cases the prisoner is in the county where he breaks his duty, and completes the offence of embezzlement by omitting or refusing to account." Talfourd, J., was of opinion "that the offence was completed when the prisoner refused to account to his master in Nottingham." The case was argued for the Crown, but not for the prisoner. In Reg. v. Davison, 7 Cox C. C. 159, on this case being cited, Alderson, B, said, "Where there is no evidence of fraudulent embezzlement, except non-accounting, the venue may be laid in the place where the nonaccounting occurred; because the jury may presume that there the fraudulent misappropriation was made; but this cannot apply where there is distinct evidence of the misappropriation elsewhere."

(c) Ante, p. 67. As to the proceedings against accessories, see vol. 1, p. 67, et seq. (d) Ante, vol. 1, p. 1.