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one E. owed the prosecutor 5l., and that he paid the prisoner 3l. 14s. 6d., in cash, 18. 6d. being allowed for discount, and the remaining il. 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. 148. 6d. in the cash book. The prosecutor had never called the prisoner to account with respect to the sum of 51. 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 embezzlernent, 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 Sarrey, 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 (6); 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 circuinstance 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 (C); 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 (). 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. Wbat 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. (6) 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 enbezzle the same, or any part thereof, or in any manner fraudulently apply or dispose of the me, or any part thereof to his own use or benefit, or for any
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 einbezzlement, 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.
money, without specifying any particular coin or valuable security; and such allegation, so far as it 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, or if he shall be proved to have ernbezzled any piece of coin or any valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him, in order that some part of the value thereof should be returned to the party delivering the same, and although such part shall have been returned accordingly."
By s. 4, “in every such case of embezzlement, or fraudulent application or disposition, as aforesaid, of any chattel, money, or valuable security, it shall be lawful, in the order of committal by the justice of the peace, be( *407 ] fore whom the offender shall be charged, and *in the indictment to be preferred against such offender, to lay the property of any such chattel, inoney, or valuable security, as aforesaid, in the king's majesty."
As to embezzlement by persons in the post office, see thạt title.
BY OFFICERS AND SERVANTS OF THE BANK OF ENGLAND.
By 15 Geo. 2, c. 13, s. 12, it is enacted, that if any officer or servant of the said company, being intrusted with any note, bill, dividend warrant, bond, deed, or any security, money, or other effects belonging to the said company, or having any bill, dividend warrant, bond, deed, or any security or effects of any other person or persons, lodged or deposited with the said company, or with him as an officer or servant of the said company, shall secrete, embezzle, or run away with, any such note, bill, dividend warrant, bond, deed, security, money, or effects, or any part of them, every officer or servant so offending, and being thereof convicted in due form of law, shall be deemed guilty of felony, and shall suffer death as a felon, without benefit of clergy.
Provisions similar to the above are contained in the 35 Geo. 3, c. 66, s. 6, and 37 Geo. 3, c. 46, s. 4. The 24 Geo. 2, c. 11, also contains a clause (s 3,) to the same effect, with respect to officers and servants of The South Sea Company.
Upon a prosecution under the 15 Geo. 2, c. 13, the prosecutor must prove, Ist, that the prisoner was an officer or servant of the Bank of England, intrusted with a note, &c. belonging to the Bank, or having a bill, &c. deposited with the Bank, or with him, and 2d, that he embezzled, or ran away with the same.
Proof of being an officer, &c. intrusted, &c.] It is not sufficient, in order to bring a party within the statute that he should be an officer of the Bank, and as such have access to the document in question. It must appear also that he was intrusted with it. A Bank clerk, employed to post into the ledger, and read from the cash-book, bank notes in value from 1001. to 10001., and who, in the course of that occupation, had, with other clerks, access to a file upon which paid notes of every description were filed, took from the file a paid bank-note for 501. Being indicted for this, under the stat. 15 Geo. 2, c. 13, s. 12, it was contended that he was not intrusted with this note, within the statute, the only notes with which he could be said to be intrusted being those between 1001. and 10001. Having been found guilty, the judges held the conviction wrong, on the ground that it did not appear that he was intrusted with the cancelled note, though he had access to it. Bakewell's case, Russ. and Ry. 35 (a).
Proof of the bills, &-c.) Where the prisoner was charged with embezzling “certain bills, cominonly called Exchequer bills," and *it [ *408 ] appeared that the bills had been signed by a person not legally authorised to sign them, it was held that the prisoner could not be convicted. Aslett's (first) case, 2 Leach, 954. The prisoner was again indicted under the same statute, for embezzling “ certain effects” of the Bank, and being convicted, the judges, on a case reserved, were of opinion that these bills or papers were effects within the statute ; for they were issued under the authority of government as valid bills, and the holder had a claim on the justice of government for payment. Aslett's (second) case, Russ. and Ry. 67 (6); 2 Leach, 958, 1 N. R. 1. In this case, the judges likewise held that the stat. 39 Geo. 3, c. 85, had not repealed any part of the 15 Geo. 2, c. 13.
BY BANKERS, AGENTS, OR FACTORS. The offence of embezzlement by bankers and other persons, intrusted with money, was provided against by the statute 52 Geo. 3, c. 63; but that statute is now repealed by the 7 & 8 Geo. 4, c. 27; and its provisions are in substance re-enacted by the 7 & 8 Geo. 4, c. 29, s. 49, which enacts, “ that if any money, or security for the payment of any money, shall be intrusted to any banker, merchant, broker, attorney, or other agent, with any direction in writing to apply such money, or any part thereof, or the proceeds, or any part of the proceeds of such security, for any purpose specified in such direction, and he shall, in violation of good faith, and contrary to the purpose so specified, in any wise convert to his own use or benefit, such money, security, or proceeds, or any part thereof respectively, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be 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 suffer such other punishment by fine or imprisonment, or by both, as the court shall award ; and if any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, whether of this kingdom, or of Great Britain, or of Ireland, or of any foreign state, or in any fund of ariy body corporate, company, or society, shall be intrusted to any banker, merchant, broker, attorney, or other agent, for safe custody, or for any special purpose, without any authority to sell
, negotiate, transfer, or pledge, and he shall, in violation of good faith, and contrary to the object or purpose for which such chattel, security, or power of attorney shall have been intrusted to him, sell, negotiate, transfer, pledge, or in any manner convert to his own use or benefit such chattel or security, or the proceeds of the same or any part thereof, or the share or interest in the stock or fund to which such power of attorney shall relate, or any part thereof, every such
(a) 1 Eng. C. C. 35.
(6) 1 Ibid. 67.