When officer, etc., ciation, guilty of embezzlement. NOTE.-See note to Secs. 211 and 484, ante, as to the distinction between "robbery," "larceny," "embezzlement," and "extortion;" also, People vs. Belden, 37 Cal., p. 53. In Ex Parte Hoadley, 31 Cal., p. 108, embezzlement was held to be a creation of the statute alone. This offense, in its commission and punishment, is intimately connected with larceny, the only difference being that specified in the case of Belden, supra. See, also, "Bailees," etc., in note to Sec. 484, ante, and the cases there cited. 504. Every officer, Director, Trustee, clerk, serof any asso vant, or agent of any association, society, or corporation (public or private), who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement. When carrier or other person having property for transportation, for hire. guilty of embezzlement. NOTE.-See People vs. Bogart, 36 Cal., p. 247, wherein the Court say that, to avoid any question as to the offense of which the defendant may be found guilty, two counts may be used-one for a felonious taking, the other for a felonious conversion. The difference seems to be this: if a bailee takes with the intent to steal or convert, it may be charged directly as larceny; but if the intent to convert to his own use was conceived after the taking, it is embezzlement. In the case of People vs. Poggi, 19 Cal., p. 601, it was held "that the facts and circumstances which are necessary to constitute a complete offense must be stated with directness and certainty." The circumstances constituting bailment must be charged, and proved. Sec. 514, post, fixes the punishment as for larceny. 3 Chitty's Cr. Law, p. 967; Com. vs. Merryfield, 4 Met., p. 468. 505. Every carrier or other person having under his control personal property for the purpose of transportation for hire, who fraudulently appropriates it to any use or purpose inconsistent with the safe keeping of such property and its transportation according to his trust, is guilty of embezzlement, whether he has broken the package in which such property is con tained, or has otherwise separated the items thereof, or not. NOTE.-See notes to Secs. 484 and 504, ante. trustee, etc., guilty of embezzlement. 506. Every trustee, banker, merchant, broker, at- When torney, agent, assignee in trust, executor, administra- banker, tor, or collector, or person otherwise intrusted with or having in his control property for the use of any other person, who fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzle ment. NOTE.-See notes to Secs. 484 and 504, ante. bailee, or lodger 507. Every person intrusted with any property as When bailee, tenant, or lodger, or with any power of attor- tenant, ney for the sale or transfer thereof, who fraudulently embezzle converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, is guilty of embezzlement. ment. clerk, servant guilty of embezzle 508. Every clerk, agent, or servant of any person When who fraudulently appropriates to his own use, or se- agent, or cretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement. ment. 509. A distinct act of taking is not necessary to Distinct act constitute embezzlement. NOTE.-People vs. Dalton, 15 Wend., p. 581. of taking. of debt un 510. Any evidence of debt, negotiable by delivery Evidence only, and actually executed, is the subject of embez- delivered zlement, whether it has been delivered or issued as a valid instrument or not. 511. Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title may be Subject of embezzlement. Claim of title a ground of defense. Intent to restore the no defense. preferred in good faith, even though such claim is untenable. But this provision does not excuse the unlawful retention of the property of another to offset or pay demands held against him. 512. The fact that the accused intended to restore property is the property embezzled, is no ground of defense or of mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, charging the commission of the offense. But actuall restoration is a ground for of punishment. 513. Whenever, prior to any information laid before a magistrate, charging the commission of emmitigation bezzlement, the person accused voluntarily and actually restored or tendered restoration of the property alleged to have been embezzled, or any part thereof, such fact is not a ground of defense, but it authorizes the Court to mitigate punishment, in its discretion. Punishment for ment. 514. Every person guilty of embezzlement is embezzle- punishable in the manuer prescribed for feloniously stealing property of the value of that embezzled; and where the property embezzled is an evidence of debt or right of action, the sum due upon it, or secured to be paid by it, shall be taken as its value. NOTE. This Chapter is a considerable extension of our existing law relating to embezzlement.-Secs. 66, 71, and 72 of the Crimes and Punishment Act of 1850; Stats. 1850, p. 229, and Sec. 70 of the same Act, as amended; Stats. 1864, p. 40. It is taken from the Chapter of the New York Penal Code on the same subject, Sec. 601, et seq. CHAPTER VII. EXTORTION. SECTION 518. "Extortion" defined. 519. What threats may constitute extortion. SECTION 521. Punishment of extortion committed under color of official right. 522. Obtaining signature by means of threats. 523. Sending threatening letters with intent to extort money, etc. 524. Attempts to extort money or property by means of verbal threats. 525. Officers of railroad companies making overcharges. tion" 518. Extortion is the obtaining of property from "Exto another, with his consent, induced by a wrongful use deined. of force or fear, or under color of official right. NOTE.-See notes to Secs. 211, 484, and 503, ante. The Act of 1850 defined "extortion" to be the taking by any officer of a reward or fee for the discharge of duty other than that fixed by law, when so taken willfully or corruptly, or to demand such reward or fee as a condition precedent to the performance of duty.-See Sec. 107. This is doubtless a good definition of official extortion, and it was held to be constitutional in Ryan vs. Johnson, 5 Cal., p. 86; see Bouv. Law Dict., Title "Extortion;" 4 Blackst. Com., p. 141; 1 Hawkins Pl. Cr., Chap. 68, Sec. 1; 1 Russ. Cr., p. 144. Taking a note which would be void would not constitute the offense. Money or property must be taken or received.-2 Mass., p. 523; 16 id., p. 93. To receive or take money for performance of discretionary power is extortion.-2 Burr., p. 927; People vs. Whaley, 6 Cow., N. Y., p. 661; 1 Caines, N. Y., p. 130; 13 Serg. & R., Penn., p. 426; 3 Penn., p. 183; 1 Yeates, Penn., p. 71; 1 Pick., p. 171. The term "extortion," in its enlarged sense, would include any oppression accompanied with colorable right; but only such extortion is punishable as is made so by statute, hence the extension of the common law term to the wrongful use of force or fear. 519. Fear, such as will constitute extortion, may What be induced by a threat, either: 1. To do an unlawful injury to the person or property of the individual threatened, or to any relative of his, or member of his family; or, 2. To accuse him, or any relative of his, or member of his family, of any crime; or, threats may constitute extortion. Punishment of extortion in certain cases. Punishment of extortion committed 3. To expose, or impute to him or them any deformity or disgrace; or, 4. To expose any secret affecting him or them. 520. Every person who extorts any money or other property from another, under circumstances not amounting to robbery, by means of force, or any threat, such as is mentioned in the preceding section, is punishable by imprisonment in the State Prison not exceeding five years. 521. Every person who commits any extortion under color of official right, in cases for which a difunder color ferent punishment is not prescribed in this Code, is guilty of a misdemeanor. of official right. Obtaining signature by means of threats. Sending Attempts to extort money or property by means of verbal threats. 522. Every person who, by any extortionate means, obtains from another his signature to any paper or instrument, whereby, if such signature were freely given, any property would be transferred, or any debt, demand, charge, or right of action created, is punishable in the same manner as if the actual delivery of such debt, demand, charge, or right of action were obtained. 523. Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat. 524. Every person who unsuccessfully attempts, by means of any verbal threat, such as is specified in Section 519, to extort money or other property from another, is guilty of a misdemeanor. |