must be a glass coach larceny as a servant (e), and subject him to the increased punish- under this ment provided by this act, it is of course necessary that he Act, offender should be a servant. We shall hereafter, whilst treating of servant. embezzlement by servants, place before the reader the various decisions upon this point. But it may be here mentioned, that it Driver of has been held that the driver of a glass coach hired for the day, not servant is not the servant of the party hiring it within the meaning of of hirer. this act (f). And a doubt has been expressed by Coleridge, J., Semble, whether this section extends to public servants under the Statute does Crown (g). The case of such persons is provided for by the to public stat. 2 Will. 4, c. 4 (h). not apply servants. Case. Where, however, the money or other property had never been in the possession of the master, it was held that the servant was not guilty of larceny in misappropriating it. Thus, where (i) a Bull's Case. shopman sold goods in the shop and pocketed the price, instead of putting it into the till, it was held that he could not be convicted of larceny of the money, as it had never been in his master's possession. The same law was laid down in a case Bazeley's where (k) a banker's clerk pocketed a 1007. note, instead of putting it into his master's drawer. These decisions gave rise Which gave to the first statute against embezzlement, 39 Geo. 3, c. 85. Statutes That statute is now repealed; and the punishment of such against emoffences is provided for by 7 & 8 Geo. 4, c. 29, the provisions of bezzlement. which will be stated presently. However, since the passing of Since which that statute, it has been held that, if the master has had posseslarceny to sion of property, either by his own hands or by the hands of his take proclerk or servant, a servant cannot be guilty of embezzling it, but perty out of if he purloin it, it will be larceny. Thus, where (1) a clerk in the employ of A. received from another clerk 31. of A.'s money, (e) Upon an indictment for larceny, as a servant, the prisoner may, as we have seen, be convicted of simple larceny, supra, p. 295. The allegation in the indictment that A. B., "being the servant," &c., stole, &c., is sufficient, R. v. Somerton, 7 B. & C. 463. (f) R. v. Haydon. 7 C. & P. 445. (g) R. v. Lovell, 2 Moo. & Rob. 236. (h) Post. (i) Bull's Case, cited 2 Leach, C. C. 841. Upon the authority of this case, it was held in R. v. Headge, Russ. & Ry. 160, that a servant, under similar circumstances, was properly indicted for embezzlement under the stat. 39 Geo. 3, c. 85. And see Waite's Case, 1 Leach, C. C. 28, the case of a clerk in the Bank of England purloining a bond, which gave rise to the stat. 15 Geo. 2, c. 13. (k) Bazeley's Case, 2 Leach, C. C. 835. In R. v. Rudick, 8 C. & P. 237, a servant, sent out to collect money for his master, was robbed of it on his way home. In an indictment for the robbery the money was laid as the property of the master, and upon an objection to this being taken by counsel for the prisoners, Alderson, B., directed a fresh bill to be sent up to the grand jury, laying the money as the property of the servant; adding, "It is difficult to see how such an offence as embezzlement could have been a part of our criminal law, if the possession of the servant of property which had never come to the hands of the master were construed to be in the possession of the master." (1) R. v. Murray, 1 Moo. C. C. 276; S. C. 5 C. & P. 145, note. rise to it is still master's po8session. But misappropria passing towards mas ter's possession, embezzlement. to pay for an advertisement, for which he only paid 108., but charged A. 20s., pocketing the difference, all the judges held that he was not properly convicted of embezzlement under 7 & 8 Geo. 4, c. 29. s. 47. But if such property is merely in the course of passing to the tion of goods, master, and have not arrived into his possession, although in the hands of a clerk, if that clerk misappropriate it, he will be guilty of embezzlement. Thus, where (m) it was the duty of A.'s clerks to receive money on account of A., and pay it over to A.'s superintendent, whose duty it was to pay it over to the R. v. Masters. prisoner, whose duty it was to pay it over to A.'s cashier, these persons being all servants of A., the prisoner, having received money in this way and embezzled it, was held to be properly convicted of embezzlement under 7 & 8 Geo. 4, c. 29, s. 47. To steal goods once completely arrived in master's pos session, though merely con structively, is larceny. R. v. Watts. R. v. Wright. And if the property has once completely arrived into the master's possession (although merely constructively by the hands of the thief) and be there misappropriated, the offence will be larceny. Thus, in R. v. Watts (n), the prisoner was a clerk in the Globe Insurance Office, and it was his duty to receive from the messenger the banker's pass-book, together with the vouchers, to compare the entries in the pass-book with the entries in the books of the company, and to preserve the vouchers for the use of the company. One day the prisoner fraudulently destroyed a cheque for 1,400l., which was delivered to him with the pass-book in the usual way, and altered the pass-book, having, in fact, paid the amount into his own private bankers, and he was held to have been properly convicted of stealing the cheque from his masters, as his possession of it was the possession of his masters. "The paper in question," said Lord Truro, "as soon as it had passed from the hands of the messenger, and arrived at its ultimate destination, the custody of the prisoner for the directors, was really in their possession, and when he afterwards abstracted it for a fraudulent purpose he was guilty of stealing it from them, as a butler, who has the keeping of his master's plate would be guilty of larceny if he should receive plate from the silversmith for his master at his master's house, and afterwards fraudulently convert it to his own use, before it had in any other way than by his act of receiving come to the actual possession of the master." "This case is distinguishable from those in which the goods have only been in the course of passing towards the master, as in Reg. v. Masters (o), where the prisoner's duty was only to receive the money froin one fellow-servant and pass it on to another, who was the ultimate accountant to the master. Here the paper had reached its ultimate destination when it came to the prisoner's keeping, and that keeping being for his masters, made his possession theirs." A similar decision was arrived at in the following case (p):— (m) R. v. Masters, 2 Carr. & K. 930; S. C. 1 Den. C. C. 332; S. C. 3 New Sess. Cas. 326. (n) 2 Den. C. C. 14. (0) Ubi supra. (p) R. v. Wright, 27 L. J., M. C. 65; S. C. 1 Dears. & B. C. C. 431. In this case it was assumed that the money was placed in the safe, as it was the prisoner's duty to place it there. The prisoner was employed by a banking company to manage a branch for them at B. He provided an office for the bank in his own house. The office was furnished by the company, and an iron safe provided there by them, of which there were duplicate keys, the company keeping one, and the prisoner the other. It was the duty of the prisoner to receive money from customers to place it at night in the safe, to pay away from time to time as much as was required for the business of the bank, to pay cheques, to pay over weekly any balance not required for the business at B., and to send in weekly accounts to the company. He carried on the business, receiving and paying money, and sending in weekly accounts. In auditing his accounts a deficiency of 3,000l. was discovered, and he admitted that he had taken that amount of money. It was held that he was properly convicted of larceny, as a clerk, in having stolen some money received from customers, which before he stole it had been placed in the safe, and made the subject of a weekly account. The court considering the case similar to the ordinary one of a shopman robbing a till. Where a man sent his servant to fetch home some straw which What he had bought, and the servant brought it home, took it into amounts to delivery to his master's court-yard, and put it down at the stable-door master. which was locked; and afterwards, on the door being opened, R. v. Hayput part of the straw into the hay-loft, but took the rest away ward. again, and sold it, Tindal, C. J., held that the putting it down at the stable-door was a delivery of it to the master, and that the servant could not be convicted of embezzlement. was found guilty of larceny (q). He ment. c. 29, s. 47. By sect. 47 of the stat. 7 & 8 Geo. 4, c. 29, "for the pun- Punishment ishment of embezzlements committed by clerks and servants, it of embezzleis declared and enacted that if any clerk or servant, or any person employed for the purpose or in the capacity of a clerk 7 & 8 Geo. 4, or servant (r), shall by virtue of such employment receive or take into his possession any chattel, money, or valuable security for or in the name or on the account of his master, and shall fraudulently embezzle the same or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master (s), although such chattel, money or valuable security was not received into the possession of such master otherwise than by the actual possession of his clerk, servant or other person so employed; and every such offender, being convicted thereof, shall be liable at the discretion of the court to any of the punishments which the court may award, as hereinbefore last mentioned" (t). (q) R. v. Hayward, 1 Carr. & K. 518. (r) In the stat. 39 Geo. 3, c. 85, the words "to any person or persons whomsoever, or to any body corporate or politick," are added. (s) It would seem that if the words "and may be indicted and tried accordingly" had been added here, many of the diffi- (t) In sect. 46, ante, p. 296. What con In order to constitute an offence within the above section (47), stitutes em three things must concur (u): — bezzlement. Apprentice. vant. 1. The prisoner must be (r) a clerk or servant, or employed for the purpose, or in the capacity of a clerk or servant. 2. He must by virtue of such employment receive or take into his possession some chattel, money or valuable security, for or in the name or on account of his master. 3. He must fraudulently embezzle the same or some part thereof. It will be convenient to consider these three heads separately. Many of the decisions which will be mentioned took place under the old stat. 39 Geo. 3, c. 85, but they may with propriety be inserted here. 1. The prisoner must be a clerk or servant, or employed for the purpose or in the capacity of a clerk or servant. It was the opinion of all the judges that an apprentice (y), and also a female servant (2), were within the stat. 39 Geo. 3, c. 85. Female ser- And it is clear that a female servant is within the statute of Geo. 4 (a), which "there can be no doubt would also be held to embrace persons employed in the capacity of clerks or servants to corporations" (b), though not appointed under the common seal (c). Servant to corporation; though not appointed under common seal. Accountant A person employed by the overseers of a township as their accountant and treasurer, and who received and paid all monies to overseers. receivable or payable on their account, was held to be a clerk and servant within 39 Geo. 3, c. 85 (d). And the treasurer to the guardians of the poor of Birmingham, appointed under the stat. 1 & 2 Will. 4, c. lxvii. (local and personal) is a servant of the guardians within the meaning of the stat. 7 & 8 Geo. 4, c. 29, and as such indictable for embezzlement (e). Treasurer to guardians. Servant employed to drive cattle for farmer; In R. v. Hughes (ƒ) it was held that a person employed by a farmer on one occasion as a drover in Smithfield to drive some cattle home to the purchaser and receive the price, was a ser (u) And see per Lord Ellenborough in R. v. Johnson, 3 M. & S. 548, 549, on the old stat. 39 Geo. 3. c. 85. (r) Or have been at the time of the offence committed, R. v. Lovell, 2 M. & Rob. 236. (y) R. v. Mellish, Russ. & Ry. 80. (z) R. v. Smith, Russ. & Ry. 267. (a) See 7 & 8 Geo. 4, c. 28, s. 14. (b) Per Vaughan, J., in Williams v. Stott, 1 Cr. & M. 689. See the remark made upon this dictum of Vaughan, J., in Greaves' edition of Russ. on Crimes, vol. ii. p. 169, note (g). The learned editor, however, ap pears when he wrote that note to have forgotten the difference between the wording of the statute of Geo. 3, and that of Geo. 4. The interpretation put upon the word "person" by 7 & 8 Geo. 4, c. 28, s. 14, would seem hardly applicable to 7 & 8 Geo. 4, c. 29, s. 47, unless the "person" were a servant. (c) R. v. Beacall, 1 C. & P. 457. (d) R. v. Squire, R. & Ry. 349; S. C. 2 Stark. 349. (e) R. v. Welch, 2 Carr. & K. 296: S. C. 1 Den. C. C. 199. And see now 12 & 13 Vict. c. 103, s. 15, post, p. 302. (e) R. v. Hughes, 1 Moo. C. C. 370. in general. vant within the meaning of the act of Geo. 4. Drovers in not drovers general, who exercise a distinct calling, would not, however, now be considered as servants under that act (ƒ). It has been held that the clerk of a savings bank was pro- Clerk to perly described in an indictment for embezzlement under the trustees of savings statute of Geo. 4, as clerk to the trustees, although he was banks. elected every year by ballot at a meeting of the managers (g). And that a clerk appointed by a station committee of four Clerk to joint several railway companies to receive the charge for the carriage station of of parcels by all of them, might be described as the servant of the four companies or of the committee (h). A clerk to a joint-stock banking company, established under Clerk to joint7 Geo. 4, c. 46, may be convicted of embezzling the money of the company, although he is a shareholder or partner in such shareholder. company (i). several rail ways. stock bank, though But where W., who was a member of a friendly society, and Clerk to was also clerk or secretary to the society, offered to put out friendly society. their money to more advantage in London, and drew it out with the consent of the society, but appropriated it to his own use, it was held that he could not be convicted of either larceny or embezzlement, as he was part-owner (k). However, in a similar case in Ireland, where it appeared that all the property of the society was vested in trustees, it was held by the Court of Criminal Appeal there, that he might be described as servant to the trustees (1). servant. Clerk and traveller And it was held, that a person occasionally employed (m); a Occasional person employed upon commission to travel for orders and to collect debts, although employed by many different houses on each journey, and although he paid his own expenses out of his employed by commission, and did not live with any of his employers, nor act many houses. in any of their counting-houses (n), were servants within the stat. of Geo. 3. (f) See R. v. Goodbody, 8 C. & P. 665; R. v. Hey, 2 Carr. & K. 983; S. C. 1 Den. C. C. 602, ante, p. 294. (g) R. v. Jenson, 1 Moo. C. C. 434; and see R. v. Hall, 1 Moo. C. C. 474; R. v. Callaghan, 8 C. & P. 154. As to what is sufficient evidence of acting as a trustee to support inference of legal appointment, see R. v. Essex, 1 Dears. & B. 369. (h) R. v. Bayley, 26 L. J., M. C. 4; S. C. 1 Dears. & B. 121. (i) R. v. Atkinson, Car. & M. 525; and see R. v. Watts, 2 Den. C. C. 14, ante, p. 298, where a clerk, who was also a shareholder in an insurance office, was convicted of embezzlement. (k) R. v. Waite, 2 Cox, C. C. 245; R. v. Taffs, 4 Cox, C. C. 169. (1) R. v. Murphy, 4 Cox, C. C. 101. (m) R. v. Spencer, Russ. & Ry. 299; R. v. Winnall, 5 Cox C. C. 326; and see R. v. Hughes, 1 Moo. C. C. 370; R. v. Metcalf, 1 Moo. C. C. 433; but see R. v. Freeman, 5 C. & P. 534, contra. (n) R. v. Carr, Russ. & Ry. 198; and see R. v. Leach, 3 Stark. 70. But see what is said by Lord Wensleydale in R. v. Goodbody, 8 C. & P. 667, as to a man being the servant of several persons at the same time. In R. v. White, 8 C. & P. 742, the driver of a coach, who was employed by one of the proprietors, was held to be his servant; and see R. v. Batty, 2 Moo. C. C. 257. |