and generally it must be prosecuted there.13 So it has been held that where the essence of the offense is the conversion, and the statute does not make the failure to account an offense, an indictment will not lie in a county where it was the defendant's duty to account if the conversion took place elsewhere.14 Some courts, however, hold that if the transaction constituting the embezzlement extends through different counties, the jurisdiction of the county in which the conversion takes place is not exclusive, but that an indictment will lie in any county in which some essential part of the transaction constituting an essential element of the offense occurred.15 Under this rule it has been held that an indictment will lie in a county where the money or property was intrusted to the defendant and where he fraudulently refused or failed to account for the same to his employer as it was his duty to do, although the appropriation to the

18 Knight v. State, 152 Ala. 56, 44 So. 585; Raiden v. State, 1 Ga. App. 532, 57 S. E. 989; State v. Mispagel, 207 Mo. 557, 106 S. W. 513.

The venue may be laid in a state where the accused had possession of the money or property if he formed the criminal intent to convert it there, but not if such intent was not formed until after he left such state. Woodward v. United States, 38 App. Cas. (D. C.) 323.

A person who receives checks in one county and cashes them and appropriates the proceeds in another can only be prosecuted in the latter county, where he is charged with embezzling the money and not the checks. People v. Meseros, 16 Cal. App. 277, 116 Pac. 679.

Where money paid to defendant under a contract made in Pennsylvania, whereby he was to purchase timber in Kentucky, was deposited to his credit in a bank in Virginia and drawn by him by means of checks on that bank, it was held that presumptively the conversion took place in Virginia and he could not be prosecuted in Kentucky in the absence of evidence showing a conversion there, though he represented that he had

bought timber there with the money. Hylton v. Com., 29 Ky. L. Rep. 64, 91 S. W. 696.

Where notes are mailed to a person out of the state who discounts them, the conversion takes place when and where they are so mailed. Com. v. Dissinger, 59 Pa. Super. Ct. 247.

14 An agent who collects and appropriates money in counties other than that in which his employer resides and in which he is required to account cannot be prosecuted in the latter county. State v. Hatch, 91 Mo. 568, 4 S. W. 502.

A bank cashier who draws a draft on a bank in another county and sends it to his agent there who collects it and there deposits it to the cashier's personal account must be prosecuted in such other county, though he is bound to account to the bank employing him in the county where it does business and may be presumed to have formed the criminal intent there. State v. Mispagel, 207 Mo. 557, 106 S. W. 513.

15 State v. Hengen, 106 Iowa 711, 77 N. W. 453; Cohoe v. State, 82 Neb. 744, 118 N. W. 1088; State v. Bailey, 50 Ohio St. 636, 36 N. E. 233.

defendant's use took place elsewhere.16 And the same has been held to be true where the statute provides that if an offense is committed partly in one county and partly in another, or when the acts or effects constituting or requisite to the consummation of the offense occur in two or more counties, jurisdiction is in either, 17 or where the embezzlement charged consists of a failure to account.18 And it is sometimes expressly provided by statute that the offense may be prosecuted either in the county in which the money or property, or some part thereof, was received or converted, or in the county in which the person charged was under obligation to pay over the funds or property converted.19 But since a demand and refusal are merely evidence of conversion, and not essential elements of the crime of embezzlement,20 if the conversion is made complete by the appropriation of the property in one county, a mere demand and refusal in another county will not confer jurisdiction there.21

16 Cohoe v. State, 82 Neb. 744, 118 N. W. 1088; State v. Bailey, 50 Ohio St. 636, 36 N. E. 233; Reg. v. Rogers, 3 Q. B. D. 28, 14 Cox C. C. 22.

The treasurer of a corporation who embezzles its funds may be prosecuted in the county where the corporation is located and transacts its business, and where he should account to it, and where presumptively his fraudulent intent is formed, though the conversion is effected by discounting notes of the corporation in another county and depositing the proceeds to the individual credit of the treasurer there. Mangham v. State, 11 Ga. App. 427, 75 S. E. 512. A bank president who embezzles its funds by drawing them by checks may be prosecuted in the county where the bank is situated, although the checks are drawn in another county. Weathers v. State, 24 Ga. App. 363, 100 S. E. 768.

17 State v. Maxwell, 113 Iowa 369, 85 N. W. 613; State v. Hengen, 106 Iowa 711, 77 N. W. 453; People v. Mitchell, 49 N. Y. App. Div. 531, 63 N. Y. Supp. 522, aff'd 168 N. Y. 604, 61 N. E. 182; In re McFarland, 59 Hun (N. Y.) 304, 13 N. Y. Supp. 22.

Where drafts drawn on defendants were paid with money taken by them from the cash drawer of a corporation of which they were officers, which was sent to a bank in another county where the drafts were presented for collection, it was held that the crime was partly committed in the county where the money was taken, and could be prosecuted there. People v. Britton, 134 N. Y. App. Div. 275, 118 N. Y. Supp. 989.

As to such statutes generally, see § 288, supra.

18 People v. Davis, 269 Ill. 256, 110 N. E. 9; Kossakowski v. People, 177 Ill. 563, 53 N. E. 115.

19 State v. Hughes, 96 Miss. 581, 51 So. 464.

20 See § 542, infra.

21 State v. Hengen, 106 Iowa 711, 77 N. W. 453; State v. Bailey, 50 Ohio St. 636, 36 N. E. 233.

Where money was intrusted to defendant in M county for a purpose to be performed there, and he failed to pay it over on demand there, and it did not appear that he ever took it into C county, it was held that he could not be prosecuted in C county

The mere fact that the intent to embezzle was formed in a particular county is not such a part of the offense as to give jurisdiction there.22 Nor is the mere receipt of the property in a particular county, unless accompanied by a fraudulent intent to convert it.23 Nor is the mere fact that the accused was present in a county where it was his duty to account for money collected by him, and that he then failed to pay over or account for the same, where no demand was made upon him there, and it does not appear that he converted it there.24

The time and place of the embezzlement may, and frequently must, be inferred from the surrounding circumstances.25 So it has been held that if there is no evidence of a conversion elsewhere, it may be inferred to have been at a place where there was a failure to account, 26 or a refusal to turn over the money or property on demand,27 provided there was a duty on the part of the accused to account there.

though a subsequent demand and failure to pay occurred there. Raiden v. State, 1 Ga. App. 532, 57 S. E. 989. 22 Knight v. State, 152 Ala. 56, 44 So. 585; Campbell v. State, 35 Ohio St. 70.

Compare Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551.

23 People v. Murphy, 51 Cal. 376. 24 Dix v. State, 89 Wis. 250, 61 N. W. 760.

25 Woodward v. United States, 38 App. Cas. (D. C.) 323.

Where property was delivered to a baggagemaster on a train in one county to be carried into another county, and the evidence showed that it was embezzled while in transit between those two points, it was held that the jury might infer that he had it in his possession on his arrival at the point of destination, where it was his duty to deliver it, and hence that the venue was properly laid there. Hopkins v. State, 52 Fla. 39, 42 So.

52.

The embezzlement of public money by a tax-collector is to be taken as committed in the county of which he

is an officer, unless it appear affirmatively to the contrary. Robson v. State, 83 Ga. 166, 9 S. E. 610.

The jury are warranted in finding that the conversion took place in the county where the defendant resided, where he collected the money and where it was last seen in his custody. Wallis v. State, 54 Ark. 611, 16 S. W. 821.

It may be assumed that he appropriated it in the county where he received it and is last shown to have had it in his possession, there being nothing to show that he ever took it elsewhere. Ex parte Palmer, 86 Cal. 631, 25 Pac. 130.

26 Evidence that defendant received money in a particular county and failed to hand it over or account for it is prima facie evidence that the offense was committed there, in the absence of evidence that he ever carried it out of the county or made the unlawful appropriation of it elsewhere. State v. New, 22 Minn. 76.

27 State v. Hengen, 106 Iowa 711, 77 N. W. 453; State v. Bailey, 50 Ohio St. 636, 36 N. E. 233.

Where defendant collects money in

Presence of the defendant in the state or county when the crime is committed is not always necessary to give jurisdiction.28 And a person may be guilty of embezzlement in a state without ever having been within its limits, as where an agent residing out of the state draws telegraphic checks on his principal in the state in the course of his agency, and converts the proceeds to his own use,29 or where a person while in one state embezzles money or property in another state by means of an innocent agent.30

Statutes sometimes authorize a prosecution for embezzlement in the state where property embezzled out of the state is brought into it,31 or where a carrier for hire to whom property has been intrusted for delivery out of the state fraudulently converts it to his own use within or without the state.32 It is also sometimes provided by statute that embezzlement may be prosecuted in any county in which the offender may have taken or received the property, or through or into which he may have undertaken to transport it,33 or in which he may have had possession of it,34 or that where property is em-. bezzled in one county and taken into another the jurisdiction is in either county.85 And of course general statutes permitting prosecu

one county and fails to account for it to his master in another county where the latter resides, but denies its receipt, he may be prosecuted in the latter county in the absence of evidence showing an embezzlement elsewhere. Rex v. Taylor, 3 Bos. & P. 596, 2 Leach C. L. 974, Russ & R. 63.

In Reg. v. Murdock, 5 Cox C. C. 360, 2 Den. C. C. 298, where a servant was sent from N by his master to collect money in D and later refused to account for the same in N, it was held that there was evidence to go to the jury of an embezzlement in N, it not appearing where the conversion took place.

28 State v. Bailey, 50 Ohio St. 636, 36 N. E. 233. And see generally, § 292, supra.

29 Ex parte Hedley, 31 Cal. 109. 30 See § 293, supra.

31 State v. Barnett, 15 Ore. 77, 14 Pac. 737.

A statute providing that the of

fense may be prosecuted in any county where the person charged had possession of the property authorizes such a prosecution. Com. v. Parker, 165 Mass. 526, 43 N. E. 499.

32 State v. Haskell, 33 Me. 127. 33 People v. Garcia, 25 Cal. 531; Pearce v. State, 50 Tex. Cr. 507, 98 S. W. 861; Cohen v. State, 20 Tex. App. 224; Reed v. State, 16 Tex. App. 586; Cole v. State, 16 Tex. App. 461.

Under such a provision he may be prosecuted in the county in which he received the property although he converted it elsewhere. McDaniel v. State, 79 Tex. Cr. 455, 186 S. W. 320; O'Marrow v. State, 66 Tex. Cr. 416, 147 S. W. 252; Schweir v. State, 50 Tex. Cr. 119, 94 S. W. 1049.

"Property" as used in such a statute includes money. Brown v. State, 23 Tex. App. 214, 4 S. W. 588.

34 Com. v. Parker, 165 Mass. 526, 43 N. E. 499.

35 Beaty v. State, 82 Ind. 228.

tions in the state for offenses begun in the state and consummated out of it, or begun out of the state and consummated in it,36 or providing that if an offense is committed partly in one county and partly in another, the jurisdiction is in either,37 apply.

If the entire transaction constituting the embezzlement occurred in one county only, the venue, as matter of course, should be laid there.38

§ 308. False pretenses and cheats. The offense of obtaining money or property by false pretenses is committed and must be prosecuted where the money or property is obtained, irrespective of where the person committing the offense may be, or where the pretenses are made.39 Ordinarily, therefore, when the pretenses are made in one state or county and the money or property is obtained in another, the offense may and must be prosecuted in the latter state or county, 40 and an indictment will not lie in that jurisdiction where the pretenses

36 Under such a statute an officer of a bank in the state may be prosecuted there for embezzling funds belonging to it on deposit in another state by means of checks drawn in or out of the state. Richburger v. State, 90 Miss. 806, 44 So. 772.

As to such statutes generally, see § 287, supra.

37 See note 36, supra, and see § 288,

supra.

38 State v. Bailey, 50 Ohio St. 636, 36 N. E. 233.

A statute authorizing prosecution in the county where the complainant's principal place of business may be is unconstitutional as applied to a case where the offense was not actually or in contemplation of law perpetrated there. Hill v. Taylor, 50 Mich. 549, 15 N. W. 899.

39 Indiana. Stewart v. Jessup, 51 Ind. 413, 19 Am. Rep. 739.

Iowa. State v. House, 55 Iowa 466, 8 N. W. 307.

Kentucky. Com. v. Van Tuyl, 1 Metc. (Ky.) 1, 71 Am. Dec. 455. Missouri. State v. Shaeffer, 89 Mo. 278, 1 S. W. 293.

New Mexico. State v. Faggard,

25 N. M. 76, 177 Pac. 748.

Pennsylvania. Com. v. Schmunk, 207 Pa. 544, 56 Atl. 1088, 99 Am. St. Rep. 801; Com. v. Karpowski, 167 Pa. 225, 31 Atl. 572.

Vermont. State v. Marshall, 77 Vt. 262, 59 Atl. 916.

Wisconsin. Bates V. State, 124 Wis. 612, 103 N. W. 251, 4 Ann. Cas. 365.

England. Reg. v. Holmes, 12 Q. B. D. 23, 15 Cox C. C. 343.

And see other cases cited in the following notes.

40 California. People v. Cummings, 123 Cal. 269, 55 Pac. 898.

Florida. Connor v. State, 29 Fla. 455, 10 So. 891, 30 Am. St. Rep. 126.

Indiana. Stewart v. Jessup, 51 Ind. 413, 19 Am. Rep. 739.

Iowa. State v. House, 55 Iowa 466, 8 N. W. 307.

Kentucky. Com. v. Van Tuyl, 1 Metc. (58 Ky.) 1, 71 Am. Dec. 455. Missouri. State v. Shaeffer, 89 Mo. 271, 1 S. W. 293.

New York. People v. Adams, 3 Denio 190, aff'd 1 N. Y. 173.