of his employer. It is enough if there be a fraudulent conversion; and that being shown, a felonious intent is established. (y)

And a stage driver entrusted by his employers to carry money from one place to another, is a servant, who has obtained possession of property by virtue of his employment, within the meaning of the above section.(z) Every embezzlement of any evidence of debt, negotiable by delivery only, and actually executed by the master or employer of any such clerk, agent, officer or servant, but not delivered or issued as a valid instrument, is an offence within the meaning of the section above quoted. (a)

The object of this section was to provide for the case of bank bills which have never been issued, but are in the hands of the officers of the bank and may therefore be deemed inchoate and not valid rights in action within any of the terms employed in the fifty-ninth section.(b)

Receiving property embezzled, with a knowledge of its having been embezzled, is punishable in the same manner and to the same extent as the embezzlement itself. (c)

The sixty-second section of the act provides that if any carrier or other person to whom any goods, money, right in action, or any valuable personal property or effects shall have been delivered to be transported or carried, for hire, shall, without the assent of his employer, take, embezzle, or convert to his own use, or make way with, or secrete, with intent to embezzle or convert to his own use, such goods, &c. or any of them, in the mass as they were delivered, without breaking the trunk, box, pack, &c. in which they or any of them shall be contained, and before delivery of such articles at the place, or to the person entitled to receive them, he shall, upon conviction, be punished in the same manner as if he had taken, &c. such goods after breaking the trunk, &c. containing them, or after separating any of them from the others. (d) The object of this section was to place carriers on precisely the same footing with servants; which is their true legal character. A breach of trust in the one case is neither more nor less than a similar breach in the other.(e)

The statutes respecting embezzlement were enacted for the purpose of reaching a class of cases which, though clearly larcenies, could not be punished as such, at common law. And it seems the act does not apply to cases which could be punished, at common law, as larcenies.(ƒ)

(y) People v. Dalton, 15 Wend. 581.

(z) 10 Wend. 298.
(a) 2 R. S. 678, § 60.

(b) See Rev. Note.

(c) 2 R. S. 678, § 61.

(d) 2 R. S. 679, § 62.

(e) See Rev. Notes.

(f) 2 Leach's C. C. 1033. 3 Stark. Ev. 842. 3 Chit. Cr. L. 921.

It is questionable, therefore, whether if a servant receives money from his master to pay C., and does not pay it, he can be indicted for embezzlement.(g) But as counts for larceny at common law, and for embezzlement, under the statute may be joined in the same indictment, any difficulty in this respect may be avoided.(h)

The rule of the common law was founded upon the technical subtlety, that where the offender had the qualified property and actual possession of the goods at the time they were embezzled, he could not be guilty of larceny. Thus, if a clerk received money of a customer, and, without at all putting it in the till, converted it to his own use, he was guilty only of a breach of trust. Though, had he once deposited it and then taken it again, he would have been guilty of felony. (2) So a cashier of a bank could not be guilty of a felony in embezzling an India bond which he had received from the court of chancery, and was in his actual as well as constructive possession.(k)

The 59th section of our statute extends only to such servants as are employed to receive money, and to instances in which they receive money by virtue of their employment. (1) It has been held that a female servant is within the English statute, which is similar to ours.(m) A person employed upon commission to travel for orders and to collect debts, is a clerk within the act, though he is employed by many different houses on each journey, and pays his own expenses, and does not live with any of his employers, nor act in any of their counting houses.(n) So a servant, who is in the employment of A. and B., who are partners, is the servant of each; and if he embezzle the private money of one, may be charged under the act as the servant of that individual partner. (o) A man is sufficiently a servant within the act, although he is only occasionally employed when he has nothing else to do; and it is sufficient if he was employed to receive the money he embezzled, though receiving money may not be in his usual employment, although it was the only instance in which he was so employed. (p) A clerk entrusted to receive money at home, from out-door collectors, receives it abroad from out-door customers. Held, that such receipt of money may be considered "by virtue of his employment" within the act, though it is beyond the limits to which he is authorized to receive money for his employers. (q) So if a servant, generally employed by his master to re

(g) Russ. & Ry. C. C. 267.

(h See 3 M. & S. 549. 3 Chit. Cr. L. 921.

(i) 2 Leach, 831.

(k) 1 Leach, 28.

(1) See 2 Russ. & Ry. C. C. 80.

(m) Idem, 267.
(n) Idem, 198.

(0) 3 Stark. C. N. P. 70.
(p) Russ. & Ry. C. C. 199.
(9) Idem, 319.

ceive sums of one description, and at one place only, is employed by him in a particular instance to receive a sum of a different description, and at a different place, this latter sum is to be considered as received by him by virtue of his employment, for he fills the character of servant; as it is by being employed as a servant that he receives the money.(r) The manner in which the defendant is remunerated for his service is immaterial as regards the question whether or not he is a servant. Thus, where a party who was allowed a proportion of the profits on the goods sold, for his labor, sold them, received the price, and absconded with the money, it was holden that he was a servant, within the meaning of the act.(s) So a servant who received money for his master for articles made of his master's materials, which he embezzled, was held within the act, though he made the articles and was to have a given portion of the price for making them.(t)

The act is not confined to clerks and servants of persons in trade. It extends to clerks and servants of any private person, or of any copartnership; and to the officers, agents, clerks, or servants of any incorporated company. Thus where the overseers of a township employed the prisoner as their accountant and treasurer, and as such, he was in the habit of receiving and paying all the money receivable or payable on their account, and he received a sum and embezzled it, he was held a clerk and servant within the act. (u) And an extra collector of poor rates, whose renumeration comes from the parish fund by a per centage on his collections, is a servant or clerk, within the meaning of this statute.(v) But the person employed to collect the sacrament money from the communicants, is not the servant of the minister, churchwardens, or poor, within the statute.(w)

Although property has been in the possession of the prisoner's masters, and they only entrust the custody of such property to a third person to try the honesty of their servant, if the servant receives it from such third person and embezzles it, it is an embezzlement within the act.(x)

A mere omission by a clerk to remit money, according to his duty, is not embezzlement. (y) Nor is an embezzlement by one who is neither clerk nor servant or in any way under the control of the person by whom he is, in a single instance only, requested to receive money, punishable under this act.(z)

Where a party is charged with embezzlement, it is said to be the practice, in England, for the judge before whom the indictment is found, to 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 the prosecutor has refused to furnish him with such particular.(a)

Evidence.] Under an indictment upon the 59th section of our statute, it will be necessary to prove that the prisoner was the clerk or servant, officer or agent of the private person, co-partnership, or incorporated company who prosecutes; that the defendant received the money, &c. by virtue of his employment or office; and that he embezzled or converted to his own use the money, &c. so received, or some part of it, or that he made way with, took, or secreted the same with intent to embezzle or convert it to his own use. (b) And, with a view to the degree of punishment, the value of the goods, &c., must be stated in the indictment, and proved. But a variance between the indictment and the evidence, as to the amount received is immaterial.(c) It must appear also that the money, &c. embezzled was never, even constructively, in the possession of the master, for if it were, the offence would amount to larceny, as we have before remarked; and the defendant would therefore be acquitted upon an indictment on this statute. (d)

What evidence will be necessary as to the prisoner's being the servant, &c. of the prosecutor, and as to the money being received by him by virtue of his employment or office, will be sufficiently gathered from the above observations upon those points.

As regards the embezzlement, the usual presumptive evidence of this fact is that the defendant never accounted with his master for the money, &c. so received by him, or denied his having received it, or falsely accounts for it. (e) And where a servant immediately on receiving a sum for his master, enters a smaller sum in his master's books, and ultimately accounts to the latter for the smaller sum, he may be considered as embezzling the difference at the time he makes the false entry.(f) But a mere omission by a clerk to remit or pay money, according to his duty, is not an embezzlement.(g) 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 embez

(a) 5 Car. & P. 300.

(b) Arch. Cr. Pl. 239, 242.

(c) Russ. & Ry. C. C. 303.

(d) See Arch. Cr. Pl. 187, 9.

Pul. 596. 2 Leach, 974. Russ, & Ry.
C. C. 63.

(f) Russ. & Ry. C. C. 463.

(g) 3 Car. & P. 422 Russ. & Ry.

(e) Roscoe's Cr. Ev. 346. 3 Bos. & 267.

zled some particular note or piece of money, it was held that this was not enough, and that it was necessary to prove that some distinct act of embezzlement had been committed.(h)

Indictment.] 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.(i)

An indictment under the 62d section of the statute must contain averments that the goods, &c. were delivered to the prisoner to be transported or carried for him; that the goods, &c., or a part of them, were without the assent of his employer, taken, embezzled, or converted to his own use, or made way with or secreted by him, with intent to embezzle or convert them to his own use in the mass as they were delivered, without breaking the trunk, &c. in which they were contained, and before their delivery at the place or to the person entitled to receive them. And these averments must be sustained by the evidence.

The punishment for embezzlement, in case the value of the articles embezzled is above twenty-five dollars, is imprisonment not more than five years; if the value is under twenty-five dollars, the offence is punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding $100.(k)

7. LARCENY.

Larceny, or theft, is distinguished by the law into two sorts; the one called simple larceny, or plain theft, unaccompanied with any other atrocious circumstance; and compound, that is, where it is accompanied by the aggravating circumstance of stealing from the house or the person.(?)

And FIRST, of SIMPLE larceny, which when it is the stealing of goods above the value of twenty-five dollars, is called grand larceny; and when of goods to that value or under, is petit larceny; offences which arc considerably distinguished in their punishment, but not otherwise.(m) We shall, therefore, consider the whole subject of larceny in this place: so that when we come to the place in which petit larceny belongs, it will be only necessary to touch upon it very briefly, in order to state the punishment attached to it.

Simple larceny is defined to be the wrongful taking and carrying

(h) Roscoe's Cr. Ev. 346.

(i) 6 Car. & P. 626.

(k) 2 R. S. 678, § 59. 679, §§ 62, 63.

690, § 1.

(1) 4 Black. Com. 229. 3 Chit. Burn, 513.

(m) Id. ib.