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Some difficulty formerly arose upon indictments under the 39 Geo. 3, with regard to the money which should be deemed to be embezzled, where the prisoner had received several sums on the same day, and had not accounted for some. The prisoner received on account of his masters 181. in one pound notes; he immediately entered in the books of his employers 121. only as received, and accounted to them only for that sum. In the course of the same day he received 1041. on their account, which he paid over to them that evening with the 12. It was urged for the prisoner that this money might have included all the 181. one pound notes, and if so, he could not be said to have embezzled any of them. The prisoner being convicted, on a case reserved, nine of the judges held the conviction right, being of opinion, that from the time of making the false entry, it was an embezzlement. Wood, B., doubted whether it could be considered an embezzlement, and Abbolt. C. J., thought that the point should have been left to the jury, and that the conviction was wrong. Hall's case, Russ. and Ry. 463 (a), 3 Stark. 67 (b).
The halves of country bank notes may be described as "chattels," within the statute. Mead's case, 4 C. and P. 535 (c). But upon a charge of embezzling so many pounds, it is not sufficient to prove an embezzlement of the same number of bank notes to the same amount, Lindsey's case, 3 Chetw. Burn. 189. A bank post bill cannot be described as a bill of exchange. Moor's case, 1 Lewin, C. C. 90.
It was held upon the statute 39 Geo. 3, that the indictment ought to set out specially some article of the property embezzled, and that the evidence should support that statement. Therefore, where the indictment charged that the prisoner embezzled the sum of one pound eleven shillings, and it did not appear whether the sum was *paid by a one [*402] pound note, and eleven shillings in silver, or by two notes of one pound each, or by a two pound note, and change given to the prisoner; on a case reserved, the judges were of opinion that the indictment ought to set out specifically, at least, some article of the property embezzled, and that the evidence should support the statement, and they held the conviction wrong. Furneaux's case, Russ. and Ry. 335 (d). Tyer's case, Id. 402 (e). But now by the 7 and 8 Geo. 4, c. 29, s. 48, it is sufficient to allege the embezzlement to be of money, without specifying any particular coin, or valuable security, and such allegation, so far as it regards the description of 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, vide ante, p. 393.
It was the duty of the prisoner, who was a banker's clerk, to receive money, and to put it either into a box or till, of each of which he kept the key, and to make entries of his receipts in a book; the balance of each evening being the first item with which he debited himself in the book the next morning. On the morning of the day in question he had thus debited himself with 17621., and at the close of business on the latter day, he made the balance in the "money book" 13091. On being called upon in the evening, by one of his employers to produce his money, he threw himself upon his employers' mercy, saying he was about 9001.
(a) 1 Eng. C. C. 453. (b) Eng. Com. L. Rep. xiv. 165. (c) Id. xix. 514. (d) 1 Eng. C. C. 335. (e) Id. 402.
short. On examination it was found that the prisoner, instead of having 13091. had only 345l., making the actual deficiency 964l. The jury having found the prisoner guilty, upon an indictment for embezzling "money to a large amount, to wit, 500l. ;" a majority of the judges (eight to seven) after very considerable doubts, were of opinion that there was sufficient evidence to go to the jury, of the prisoner having received certain monies on a particular day, and for them to find he had embezzled the sum mentioned in the indictment. Grove's case, 7 C. and P. 635 (a); 1. Moo. C. C. 447 (b).
But in a more recent case, Alderson, B., after stating that the determination in the above case proceeded more upon the particular facts than upon the law, said, "It is not sufficient to prove at the trial a general deficiency in 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." Jones' case, 8 C. and P. 288 (c). It is not necessary that the exact amount or value of the thing embezzled should be stated. Carson's case, R. and R. 303 (d).
Proof of the embezzlement.] The fact of embezzlement by the prisoner must be proved as charged. It is not sufficient to show a bare nonpayment. Thus, where a master gave his servant money to pay taxes, and the only evidence of embezzlement was, that the collector had never received the money, the prisoner being convicted of embezzlement, the judges held the conviction wrong, upon the ground that there was not [*403] sufficient evidence of the prisoner having *embezzled the money; the fact of not having paid the money over to the collector. not being evidence of actual embezzlement, but only negativing the application of the money in the manner directed. Eliz. Smith's case, Russ. and Ry. 267 (e). The prisoner was clerk to the proprietors of a mail coach, and it was his duty to receive money for passengers and parcels, to enter the sums in a book, and to remit the amount weekly to his employers. He was indicted for embezzling some of the monies thus received; but it appeared that he had entered all the sums in the book, and had made no false entry, but it was imputed to him that he had not forwarded the sums in question to his employers according to his duty; Vaughan, B., said, this is no embezzlement, it is only a default of payment. If the prisoner regularly admits the receipt of the money, the mere fact of not paying it over is not a felony, it is only matter of account. Hodgson's case, 3 C. and P. 423 (f). So where it appeared by the books of a clerk, that he had received much more than he had paid away, and from this the prosecutors wished it to be inferred, that he must have embezzled some particular note or piece of money; Garrow, B., held that this was not enough, and that it was necessary to prove that some distinct act of embezzlement had been committed. Hebb's case, 2 Russell, 1242, 1st ed.
So Bolland, B., held that it was not enough to prove that a clerk had received a sum of money, and not entered it in his books, unless there was also evidence that he had denied the receipt of it, or the like. Jones's case, 7 C. and P. 833 (g).
On a second indictment against the same prisoner, it appeared that
(a) Eng. Com. L. Rep. xxxii. 666. (b) 2 Eng. C. C. 447 393. (d) 1 Eng. C. C. 303. (e) Id: 267. (ƒ) Eng. Com. L.
(c) Eng. Com. L. Rep. xxxiv. Rep. xiv. 277. (g) Id. xxxii.
one E. owed the prosecutor 5l., and that he paid the prisoner 31. 14s. 6d., in cash, 18. 6d. being allowed for discount, and the remaining 11. 48. being set against an account due from the prisoner to E. The prisoner had credited E. in the ledger to the amount of 51., and had entered-31. 14s. 6d. in the cash book. The prosecutor had never called the prisoner to account with respect to the sum of 5l. Bolland, B., held that this did not amount to embezzlement, observing, "In cases of this sort, the thing alleged to be embezzled should not be laid out of the question. If goods are taken, an intent may more clearly appear than in the case of money, as the same pieces of coin may, in many cases, not be paid over.' Id. 834.
In general the act of embezzlement cannot be said to take place until the party who has received the money refuses to account, or falsely accounts for it. When the prisoner received the money in Shropshire, and told his master in Staffordshire that he had not received it, the question was, whether he was properly convicted for the embezzlement in the former county. On a case reserved, the conviction was held right. Lawrence, J., thought that embezzlement being the offence, there was no evidence of any offence in Shropshire, and 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 receiving money and embezzling it a larceny, made the offence a felony where the [*404] 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. Hobson's case, 1 East, P. C. Add. xxiv. Russ. and Ry. 56 (a). The doctrine, that the not accounting is the evidence of the embezzlement, was also laid down in the following case. The prisoner was indicted for embezzling money in Middlesex. It appeared that he received the money in Surrey, and returning into Middlesex, denied to his master the receipt of the money. It was objected that he ought to have been indicted in Surrey, and the point was reserved. Lord Alvanley, delivering the opinion of the judges, after referring to the last case, said, "The receipt of the money was perfectly legal, and there was no evidence that he ever came to the determination of appropriating the money until he had returned into the county of Middlesex. In cases of this sort, the nature of the thing embezzled 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. 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 pass 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 Blackfriars 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 the master to account. When so called upon, he denied that he had ever recei(a) 1 Eng. C. C. 56.
ved it. That was the first act from which the jury could with certainty say, that the prisoner intended to embezzle the money. 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." William Taylor's case, 3 Bos. and Pul. 596; 2 Leach, 974; Russ. and Ry. 63 (a). So in Hall's case, Russ. and Ry. 463 (b); ante, p. 401, the judges were of opinion, that from the time of making the false entry, it was an embezzlement.
Where the prisoner was sent to receive money due to her master, and on receiving it went off to Ireland, Coleridge, J., held that the circumstance of the prisoner having quitted her place, and gone off to Ireland, was evidence from which the jury might infer that she intended to embezzle the money. The prisoner was convicted. Sarah Williams' case, 7 C. and P. 338 (c).
Before the late statute, evidence of one act of embezzlement only could be given upon one indictment, and thus the full case upon which the master had determined to prosecute, was frequently prevented from being brought forward. See 2 Russell, 208. To remedy this inconvenience, the new statute enacts, that the prosecutor may include in the in[*405] dictment 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 such acts.
Where the indictment only contains one count for one act of embezzlement, and it appears in evidence that the prisoner received money in different sums on different days, the prosecutor must elect one sum and one day upon which to proceed. Williams' case, 6 C. and P. 626 (d).
Particulars of the embezzlement.] It is not necessary to state in the indictment, from whom the money, &c. was received. Beacall's case, 1 C. & P. 454 (e); but the judge before whom the indictment is found, will order the prosecutor to furnish the prisoner with a particular of the charges, upon the prisoner making an affidavit that he is unacquainted with the charges, and that he has applied to the prosecutor for a particular, which has been refused. Bootyman's case, 5 C. and P. 300 (ƒ). Where three acts of embezzlement were stated in the indictment, the prisoner moved, upon affidavit, for an order directing the prosecutor to furnish a particular of the charges. Notice of the motion had been given. Vaughan, B., to whom the application was made, said, "I think you ought to apply to the other side to furnish you with a particular, and if they refuse, I will grant an order. The clause of the 7 & 8 Geo. 4, c. 29, respecting the framing of indictments for embezzlement, causes great hardship to prisoners. What information does the indictment convey to such a man as this? As a clerk in a coach-office, he must have received money from many hundred persons. I should, therefore, recommend the prisoner's attorney to apply to the prosecutor for a particular; and I think that the prosecutor ought at least to give the names of the persons from whom the sums of money are alleged to have been received, and if the necessary information be refused, I will, on an affidavit of that fact, grant
(a) 1 Eng. C. C. 63. (b) Id. 463. (c) Eng. Com. L. Rep. xxxii. 532. (d) Id. xxv. 568. (e) Id. xi. 448. (f) Id. xxiv. 330.
an order, and put off the trial. Hodgson's case, 3 C. and P. 422 (a). See also 1 Chitty Rep. 698 (b).
BY PERSONS EMPLOYED IN THE PUBLIC SERVICE.
By 2 Wm. 4, c. 4, s. 1, (repealing so much of the 50 Geo. 3, c. 59, as relates to embezzlement by persons to whom any money or securities for money shall be issued for the public service) it is enacted, that "if any person employed in the public service of his Majesty, and intrusted by virtue of such employment with the receipt, custody, management, or control of any chattel, money, or valuable security, shall embezzle the same, or any part thereof, or in any manner fraudulently apply or dispose of the same, or any part thereof to his own use or benefit, or for any other purpose whatsoever, except for the public service, every such offender shall be deemed to have stolen the same, and shall in England and Ireland be deemed guilty of felony, and in Scotland of a high crime and offence, and on being thereof convicted *in due form of law, shall be [ *406 ] liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned, with or without hard labor, as to the court shall seem meet, for any term not exceeding three years.'
By s. 2, "every tally, order, or other security whatsoever, entitling or evidencing the title of any person or body corporate to any share or interest in any public stock or fund, whether of the United Kingdom, or of Great Britain, or of Ireland, or of any foreign state, or to any share or interest in any fund of any body corporate, company, or society, or to any deposit in any savings-bank; and every debenture, deed, bond, bill, note, warrant, order, or other security whatsoever, for money or for payment of money, whether of this kingdom or of any foreign state; and every warrant or order for the delivery or transfer of any goods or valuable thing, shall, throughout this act, be deemed, for every purpose, to be included under and denoted by the words 'valuable security;' and that if any person so employed and intrusted as aforesaid shall embezzle, or fraudulently apply, or dispose of any such valuable security as aforesaid, he shall be deemed to have stolen the same, within the intent and meaning of this act, and shall be punishable thereby in the same manner as if he had stolen any chattel of like value with the share, interest or deposit, to which such security may relate, or with the money due on such security, or secured thereby and remaining unsatisfied, or with the value of the goods or other valuable thing mentioned in such security."
By s. 3, "it shall be lawful to charge in the indictment to be preferred against any offender under this act, and to proceed against him for any number of distinct acts of embezzlement, or of fraudulent application or disposition, as aforesaid, not exceeding three, which may have been committed by him within the space of six calendar months from the first to the last of such acts; and in every such indictment, where the offence shall relate to any money or any valuable security, it shall be sufficient to allege the embezzlement, or fraudulent application or disposition to be of
(a) Eng. Com. L. Rep. xiv. 377. (b) Id. xviii. 205.