EVIDENCE. Prove that the defendant was a clerk or servant, or person employed for the purpose, or in the capacity of a clerk or servant (see p. 96, n.), as stated in the indictment-that he received the money, etc., as stated (see p. 96, n.), for or in the name, or on the account of his master, by virtue of his employment-that he embezzled (see p. 96, n.) the money, etc., so received, or some part of it. Rosc. Cr. Ev. 2 ed. 393; Arch. 12 ed. 360. Prec. of Indic. Matt. C. L. 443. Arch. 358; OBSERVATIONS. Venue-Indictment.]- Where the money has been received in one county, and the receipt denied in another county, the venue has been holden to be well laid in either county (a). As it is not necessary to state in the indictment from whom the money, etc., has been received (b), the Judge before whom the prisoner is to be tried, will upon application, in order to prevent the hardship which would otherwise arise, order the prosecutor to furnish a particular of the charge (c). The statute enacts, section 48, that the prosecutor may include in the indictment any number of distinct acts of embezzlement, not exceeding three, committed against himself, within the space of six months, from the first to the last of these acts; and they should be charged in separate counts (d); and it should be shown by express words that they were committed within six months (e); and by the same section, it is sufficient to allege the embezzlement to be of money, without "specifying any particular coin or valuable security;" and where the offence relates to a chattel, it must be described as in an indictment for larceny (ƒ) The exact amount, or value of the things, need not be alleged (9); but they must be alleged to be the property of the master (h); and the indictment must show that the defendant was a servant at the time (i). If the conclusion state he feloniously stole, it is sufficient (k), though better to state previously that "he feloniously did embezzle." A count for a larceny by the defendant as clerk, and for a simple larceny, may be added (7). Coin and bank notes may be simply described as money (m). See further as to the indictment, under the respective heads. (a) R. v. Taylor, 3 B, & P. 596; R. & R. 63; R. v. Hobson, R. & R. 56. And now this may be, by 7 Geo. IV. c. 64, s. 12. Vide R. v. Murdock, 2 Den. C. C. 298, S. C. T. & M. 604. (b) Beacall's case, 1 C. & P. 454. (c) Bootyman's case, 5 C. & P. 300; Hodgson's case, 3 C. & P. 422. See also 1 Chitt. Rep. 699. And see Williams's case, 6 C. & P. 626. (d) R. v. Purchase, C. & Mar. 617. (e) Id. (f) See title LARCENY, post. Carson's case, R. & R. 303. (i) Somerton's case, 7 B. & C. 463; but see Lovell's case, 2 M. & Rob. 236. (k) Crighton's case, R. & R. 62. (1) Johnson's case, 3 M. & Sel. 549. See post, p. 99, n. (43). (m) 14 & 15 Vic. c. 100, s. 18. Company (2); by persons to whom money, or securities for money, shall be issued for the public service (3); and also as to embezzlements from Chelsea Hospital (4), from Greenwich Hospital (5), from Poor-houses (6) and from (2) By 24 Geo. II. c. 11, s. 3; and 4 & 5 Vic. c. 56, s. 1. (3) By 2 Wm. IV. c. 4, s. 1. By 7 Geo. IV. c. 16. By 54 Geo. III. c. 110. (6) By 55 Geo. III. c. 137. OFFENCE. EMBEZZLEMENT-continued. By BANKER, MERCHANT, BROKER, ATTORNEY, or other AGENT of " any money or security for the payment of money" lodged "with any direction in writing" for any specified purpose. (M.) 7 & 8 Geo. IV. c. 29, ss. 4, 49. [It is the same offence, and subject to the same punishment, if a party coming within the above description embezzle any goods, etc., intrusted to him for safe custody, or for any special purpose; 7 & 8 Geo. IV. c. 29, s. 49. In such a case the evidence will be the same, only that directions in writing need not be proved. The exceptions noted in the Observations at p. 97, also apply.] PUNISHMENT. Transportation for FOURTEEN years; or penal servitude for not less than FOUR nor more than EIGHT years; or fine or imprisonment, or both, with or without hard labour, for the whole or any part of the imprisonment, and with or without solitary confinement; the latter qualified by 1 Vic. c. 90, s. 5, ante, p. 3. 16 & 17 Vic. c. 99, ss. 1 & 4. warehouses through the misconduct of Custom-house Officers (7), by Clerks and other Officers of Joint-Stock Banking Companies (8), and as to embezzlement of tools, materials, etc., by persons employed in the woollen, linen, cotton, flax, mohair, or silk manufactures (9). Who are servants within the Act.]—A female servant (10); an apprentice, though under age (11); a person employed as accountant and treasurer to the overseers of the poor (12); a collector of poor and other rates (13); and in indictments for larceny and embezzlements, a collector, or assistant overseer, shall be described as the servant of the inhabitants of the parish whose money or property he shall be charged with having embezzled or stolen (14); a clerk to a savings-bank (15); a steward receiving money for his employers, even though they had no right to it, and were wrongdoers in receiving it (16); a clerk of a corporation, though not appointed under their common seal (17); a traveller employed to take orders and collect money, though paid by a per centage (18) or share of the profits, and employed by others as well as the prosecutor (19); a (7) By 3 & 4 Wm. IV. c. 57, s. 41. (8) 7 Geo. IV. c. 46; and 1 & 2 Vic. c. 96. R. v. Atkinson, 2 Mood. C. C. 278. (9) 6 & 7 Vic. c. 40, ss. 2, 3, 11. (10) Smith's case, R. & R. 267. 11 Mellish's case. R. & R. 80. (12) Squire's case, R. & R. 349; 2 Stark. 249. (13) Callahan's case, 8 C. & P. 154. R. v. Acley, 1 Den. C. C. 571. S. C. T. & M. 296. An extra collector of poor-rate; Ward's case, Gow. 168. (14) 12 & 13 Vic. c. 103, s. 15. 434; and that he was properly described as clerk to the trustees. (16) Beacall's case, 1 C. & P. 457. (17) Beacall's case, 1 C. & P. 457; and see what is said by Vaughan, B., in Williams v. Stott, 1 Crom. & M. 689. (18) Carr's case, R. & R. 198; Hartley's case, Id. 139; Hoggins's case, Id. 145; Holmes's case, 2 Lew. C. C. 256; Per Chambre, J., and case quoted by him as before Wood, B. (19) Leech's case, 3 Stark, 70; White's case, 8 C. & P. 742. R. v. Wortley 2 Den. C. C. 333; S. C. T. & M. 636. EVIDENCE. Prove that defendant was a banker or agent, as may be stated the intrusting with him the money or security as stated -that directions in writing were given for the application of the same-that defendant did not apply the money as directed, but converted it to his own use. Rosc. Cr. Ev. 2 ed. 410; Arch. 12 ed. 367. Prec. of Indict. Arch. 367. Matt. C. L. 470. OBSERVATIONS. By the 50th section of the statute, trustees or mortgagees are not to be affected by it; nor does it restrain bankers, etc., from receiving money due and payable by virtue of any valuable security (a); or from selling, etc., any securities or effects, upon which they have a lien, unless the sale, etc., be to a greater extent than is necessary to satisfy such lien. And by section 52, no banker, etc., shall be convicted by any evidence disclosed by him on oath, in consequence of any compulsory process of any court of law or equity, bona fide instituted, or if he shall have disclosed the same before any commission of bankrupt. The directions in writing must be proved by the production of them, or by secondary evidence, after notice to produce the original (b). The purpose specified must be proved as stated; an allegation of a specific direction to invest the proceeds of valuable securities in the funds, is not supported by evidence of a direction to invest in the funds in the event of an unexpected accident occurring (c). (a) Thomson v. Giles, 2 B. & C. 422. (b) Attor.-Gen. v. Le Merchant 2 T. R. 301. (c) White's case, 4 C & P. 46. member of and secretary to a society, who withheld money received from another member, being the duty of the former to pay over the amount to the trustees (20); a person employed only upon one specific occasion to receive money (21); a journeyman miller not employed as clerk or accountant, but in the habit of selling small quantities of meal on his master's account (22); a servant intrusted with the receipt of money from particular persons, but received from other persons and embezzled it (23); have severally been holden to be punishable by the statute. But it is necessary that the money should have been received in the course of the servant's employment, in order to render him liable; as where a debtor of the prisoner's employer paid the prisoner £5, supposing him to be authorized to receive it, which he was not, and the prisoner never accounted for this money; this was held no embezzlement (24). So in the case of a servant employed to look after goods, but not intrusted with the receipt of money (25); so also of a butcher's boy whose duty it was to carry out meat, but had never been employed to receive money (26); and where the prisoner was employed to lead a stallion, with authority to charge and receive a fixed sum, but not less, and he received a less sum and embezzled it, this was holden not to be within the statute, (20) Hall's case, 1 Mood. C. C. 474; but see Hunt's case, 8 C. & P. 642. (21) Spencer's case, R. & R. 299; Smith's case, R. & R. 516; Hughes's case, 1 Mood. C. C. 370; but see Goodbody's case, 8 C. & P. 665; and Nettleton's case, 1 Mood. C. C. 259; Freeman's case, 5 C. & P. 534. K (22) Barker's case, Dow. & Ry. N. P. C. 19. (23) Beechy's case, R. & R. 319; Williams's case, 6 C. & P. 626. (24) Hawtin's case, 7 C. & P. 281; per Alderson, B., and Crawley's case, then cited. (25) Thorley's case, 1 Mood. C. C.343. (26) Mellish's case, R. & R. 80. OFFENCE. EMBEZZLEMENT-continued. By FACTORS or AGENTS "intrusted with the possession of goods, or of the documents of title to goods. (M.) 5 & 6 Vic. c. 39, s. 6. Vide 7 & 8 Geo. IV. c. 29, ss. 4, 37. Clerks assisting liable as principals. PUNISHMENT. Transportation for FOURTEEN years; or penal servitude for not less than FOUR and not exceeding EIGHT years; or fine or imprisonment, or both. 16 & 17 Vic. c. 99, ss. 1 & 4. because the money was not received by virtue of his employment (27). The person employed to collect the sacrament-money from the communicants is not the servant of the minister, churchwardens, or poor (28). And the casually procuring a person to receive a sum of money will not render that person "a person employed for the purpose, or in the capacity of a clerk or servant." (29). If a clerk of several partners embezzle the money of one of them, it is an embezzlement within this Act, for he is the servant of each (30). So where a traveller is employed by several houses to receive money, he is the servant of each (31). The money, etc., embezzled.]—It is not necessary that the exact amount of value of the thing embezzled should be stated (32). Where the indictment contains only one count, charging the receipt of a gross sum on a particular day, and it appears in evidence that the money was received in different sums on different days, the prosecutor will be put to his election, and must confine himself to one sum and one day (33). The halves of country banknotes may be described as chattels within the statute (34). A bank postbill cannot be described as a bill of exchange (35). By section 49 of the statute it is sufficient to allege the embezzlement to be "of money," and evidence may be given of the receipt of any species of coin or valuable security, or a receipt of any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved (36). If the defendant's receipt for money be offered in evidence, it cannot be received unless stamped (37). The money must be received for or on account of the master, not from him either actually (38) or constructively (39). So it is embezzlement to appropriate money which has never (35) Moore's case, Lew. C. C. 90. (36) 14 & 15 Vic. c. 100, s. 18. Arch. 12 ed. 252. (37) Hall's case, 3 Stark. 67, 68. (38) Peck's case, 2 Russ. 213. Smith's case, R. & R. 267. R. v. Hawkins, 1 Den. C. C. 584. S. C. T. & M. 328. (39) Murray's case, 1 Mood. C. C. 276; 5 C. & P. 145. As to property coming to the possession of the master, see Bazeley's case, 2 Leach, 835; 2 East, P. C. 571. R. v. Watts, 2 Den. C. C. 15; S. C. T. & M. 352. EVIDENCE. Prove that the goods, etc., were intrusted with the defendant, as his agent-that the defendant pledged the same with A. B., as a security for money borrowed, or intended to be borrowed, as may be stated in the indictment the circumstances from which the jury may infer that he pledged them in violation of good faith. Rosc. Cr. Ev. 2 ed. 410; Arch. 12 ed. 370. Prec. of Indict. Arch. Id.; Matt. C. L. 471. OBSERVATIONS. By section 6 of the statute, an agent who has a lien upon any goods may pledge them to the extent of his lien. The agent is not liable to be convicted by reason of his having disclosed such act, on oath, in consequence of any compulsory process of any court of law or equity in any action, suit, or proceeding which shall have been bona fide instituted by any party aggrieved, or if he shall have disclosed the same in any examination deposition before any Commissioner of Bankrupt. The rights and liabilities of Factors are regulated by 6 Geo. IV. c. 94. or been in the master's own possession, and which the defendant has received from a fellow-servant to give his master (40). But where the master gave a stranger some marked money for the purpose of purchasing goods in order to try the fidelity of a shopman, and the latter embezzled the same, the Judges held this a case within the Act (41). So where a servant was sent by his master to get change for a £5 note, and appropriated the change to his own use, this was held embezzlement and not larceny, for the master never had possession of the change but by the hands of the prisoner (42). The nice distinctions that arise as to whether the offence be an embezzlement or larceny, render it advisable to add a count for a larceny at common law (13). Now upon an indictment for embezzlement, as a clerk, etc., a defendant may be convicted of larceny; and vice versa. (**). The embezzlement.]-It is not sufficient to show a bare non-payment (45). If the prisoner regularly admits the receipt of money, the mere fact of not paying it over is not a felony, it is only matter of account (46). And it is not enough to prove that a clerk had received a sum of money and not entered it, unless there was also evidence that he had denied the receipt of it, or the like (47). But from the time of making a false entry there is an embezzlement (48). It is not sufficient at the trial to prove a general deficiency of account; some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen (49). Where a female servant on being sent to receive money due to her master absconded with the amount; her going off, was held to be evidence of her intent to embezzle (50). (40) R. v. Masters, 1 Den. C. R. 332; S. C. T. & M. 1. (41) Headge's case, 2 Leach, 1033; R. & R. 160. (42) Sullen's case, 1 Mood, C. C. 129. (43) Arch. 12 ed. p. 359; see Wilson's case, 9 C. & P. 27. (44) 14 & 15 Vic. c. 100, s. 13. (45) Eliz. Smith's case, R. & R. 267; Peck's case, 2 Russ. 213; Murray's case, ante. (46) Per Vaughan, B., Hodgson's case, 3 C. & P. 423; Hebb's case, 2 Russ. 1242. But see, Groves's case, 7 C. & P. 635; 1 Mood. C. C. 447; and Jones's case, 8 C. & P. 288. (47) Jones's case, 7 C. & P. 833, per Bolland, B.; see also Lord Alvanley's judgment in Taylor's case, 3 Bos. & Pul. 596; 2 Leach, 974; R. & R. 63; and Hobson's case, Id. 56. (48) Hall's case, R. & R. 463; see Jones's case, 7 C. & P. 834. (49) Per Alderson, B., Jones's case, 8 C. & P. 288; see also Hell's case, 2 Russ. 124-2; but Grove's case, ante, seems contra. (50) Per Coleridge, J., Sarah Williams's case, 7 C. & P. 338. 740181 |