of the offense, as "property," 17 "money," 18 "moneys, funds or credits," 19 "effects," 20 "securities," 21 "rights in action," 22 or "negotiable instruments." 28 The federal statutes punish the embezzlement of letters or other mail matter, or the contents thereof, while in the mail.24 According to some courts, drafts, notes, checks, etc., may be the subject of embezzlement though they have never been delivered to the payee, ,25 while other courts have held to the contrary.26 Statutes 17 The term "property " is broader than "goods and chattels," and includes choses in action, as promissory notes, etc., State v. Orwig, 24 Iowa 102; Com. v. Stearns, 2 Metc. (Mass.) 343; a mortgage, Com. v. Concannon, 5 Allen (Mass.) 502; a railroad ticket, Com. v. Parker, 165 Mass. 526, 43 N. E. 499; stock in a private corporation, People v. Williams, 60 Cal. 1; bonds of a municipal corporation, Bork v. People, 91 N. Y. 5; State v. White, 66 Wis. 343, 24 N. W. 202; a check, State v. Fraley, 71 W. Va. 100, 76 S. E. 134, 42 L. R. A. (N. S.) 498. 18 It has been held that the word "money," as used in embezzlement statute relating to public funds, includes credits, checks and funds of every kind belonging to the public, as well as actual money. Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551; Fulkerson v. State, Okla. Cr. 189 Pac. 1092. In Block v. State, 44 Tex. 620, it was held that the term "money" did not include United States treasury notes or national bank notes. 19 United States v. Smith, 152 Fed. 542. Certificates of bank stock, showing on their face that only sixty per cent of the face value of the stock represented by them had been paid, are not within such a provision, where the statute gives the bank a lien on the stock for the balance due thereon and provides that it cannot be trans ferred without the consent of the majority of the directors. State V. Davis, 85 Ohio St. 43, 96 N. E. 1022. 20 The term "effects" covers choses in action, such as promissory notes, bills of exchange, etc. See State v. Newell, 1 Mo. 249; Rex v. Bakewell, 2 Leach C. C. 943. Exchequer bills are effects. Rex v. Aslett, 2 Leach C. C. 958. 21 Exchequer bills are "securities,'' though signed by an unauthorized person. Rex v. Aslett, 2 Leach C. C. 958. 22 This term is broader than "chose in action." It includes a mere claim Higbee v. State, 74 Neb. or demand. 331, 104 N. W. 748. 23 State v. Sage, 22 Idaho 489, 126 Pac. 403, Ann. Cas. 1914 B 251. 24 See § 1461, infra. 25 A valid county auditor's warrant is the subject of embezzlement though it has never been delivered to the payee. State v. Raby, 31 Wash. 111, 71 Pac. 771. in some states expressly provide that any evidence of debt, negotiable by delivery only, and actually executed, is the subject of embezzlement whether it has been issued or delivered as a valid instrument or not.27 It has been held that express checks payable to the order of a named person when countersigned by him may be embezzled though he has not countersigned them, and, in England, that exchequer bills may be embezzled though they are invalid because signed by a person without authority.29 And it has also been held that the accused is estopped to question the validity of an instrument which he embezzles, 30 § 514. Ownership. Where the statute merely requires that the money or property embezzled shall be the property of another, it is sufficient if it was owned by any person other than the accused.31 And ownership is immaterial under a statute punishing embezzlement 27 See the statutes of the various states and the following cases: People v. Hart, 28 Cal. App. 335, 152 Pac. 947. Checks are within such a provision. State v. Sage, 22 Idaho 489, 126 Pac. 403, Ann. Cas. 1914 B 251. In Missouri it is held that the statute does not include a negotiable note payable to the order of a named person and not indorsed by him, State v. Stebbins, 132 Mo. 332, 33 S. W. 1147; nor commercial paper in the hands of the maker or drawer before negotiation. State v. Wilcox, -, 179 S. W. 482. Mo. 28 They are property. People v. Hart, 28 Cal. App. 335, 152 Pac. 947. 29 They are within the statute punishing the embezzlement of securities or effects. Rex v. Aslett, 2 Leach C. C. 954. But proof of the embezzlement of such bills will not warrant a conviction under an indictment charging the embezzlement of exchequer bills. Rex v. Aslett, 2 Leach C. C. 954. 30 See § 538, infra. 31 Alabama. Barr v. State, 10 Ala. App. 111, 65 So. 197. Arkansas. Fleener v. State, 58 Ark. 98, 23 S. W. 1. Massachusetts. Com. v. Stearns, 2 Metc. 343. Minnesota. State v. Kent, 22 Minn. 41, 21 Am. Rep. 764. New York. People v. Hennessey, 15 Wend. (N. Y.) 147. Ohio. State v. Kusnick, 45 Ohio St. 535, 15 N. E. 481, 4 Am. St. Rep. 564. And see § 515, infra. Since a legatee becomes the owner of the legacy from the date of the death of the testator, a legacy is subject to embezzlement by the executor prior to a decree of distribution. People v. Dates, 29 Cal. App. 260, 155 Pac. 112. Under a statute making it an offense for any officer, agent, etc., "of any private person or persons, copartnership, or incorporation," to embezzle, etc., it was held sufficient to allege that the money converted was the property of "other persons,' to wit, a named lodge, being then and there a fraternal organization, without alleging that such organization was a corporation or copartnership. Smith v. United States, 261 Fed. 605. by a public officer of any money in his possession or under his control by virtue of his office. But to sustain a prosecution under a statute punishing the embezzlement of money or property belonging to the state, or to a county, or municipality, or to the United States, 86 or to a corporation, or association,38 or to a national bank, the prescribed ownership must be shown. And to sustain a conviction under a statute punishing the embezzlement of public money, the money embezzled must be of the character specified.40 37 Ordinarily any general or special ownership or lawful possession 32 State v. Walton, 62 Me. 106. 33 Where a deposit of state funds in a bank is "special deposit," and not a general one, the funds remain the property of the state, and an embezzlement thereof is an embezzlement of state funds. State v. Ross, 55 Ore. 450, 104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601. Where a public officer drew drafts on persons indebted to the state and turned them over to a bank which collected them, the proceeds was the money of the state, and the appropriation thereof was an appropriation of the money of the state. Busby v. State, 51 Tex. Cr. 289, 103 S. W. 638. Insurance taxes paid to a state auditor are not in his hands the property of the state, where he has no authority under the law to receive them, unless there is some act amount. ing to an acceptance or ratification by the state, and no act done by the state after the conversion of the money by the auditor can amount to a ratification. Sherrick v. State, 167 Ind. 345, 79 N. E. 193. 34 The clerk of a court cannot be punished under such a provision for embezzling money paid to him by an administrator for the benefit of a distributee of an estate. State v. Connelly, 104 N. C. 794, 10 S. E. 469. License money required to be paid into the county treasury to the credit of the county school fund belongs to the county within the meaning of such a provision. Middleton v. State, 74 Fla. 234, 76 So. 785. 35 A town owns money paid to its tax collector for taxes. State v. Griswold, 73 Conn. 95, 46 Atl. 829. 36 Fees and emoluments received by the clerk of a federal district court, or the surplus thereof for which he is required to account to the government after deducting expenses and his compensation, are not public money, or the money or property of the United States. United States v. Mason, 218 U. S. 517, 54 L. Ed. 1133, 31 Sup. Ct. 28, aff'g 177 Fed. 552. See also § 528, infra. 37 It is sufficient to show that it was a corporation de facto. Kossakowski v. People, 177 Ill. 563, 53 N. E. 115; Morse v. Com., 129 Ky. 294, 111 S. W. 714; State v. Murphy, 113 Minn. 405, 129 N. W. 850; Davis v. State, 108 Miss. 710, 67 So. 178. 38 An unincorporated lodge is an association. Laycock v. State, 136 Ind. 217, 36 N. E. 137. 39 As between an employee of a bank, whose duty it is to collect drafts and other items received by it for collection, and the bank, money so collected by him belongs to the bank while in his possession, and an appropriation of it by him is an appropriation of the money of the bank. Spencer v. United States, 169 Fed. 562. 40 Interest received by a county recorder on public money deposited by is sufficient, and where the general ownership is in one person and a special ownership in another, ownership may generally be laid in either.41 So ownership may be laid in an executor or administrator, 42 or a trustee, or in a consignee,44 or an agent,45 or carrier,46 or other bailee.47 And money stolen may be embezzled from the thief.48 43 § 515. Property owned by the accused or in which he has an interest-In general. A person cannot embezzle property of which he is himself the owner,49 and it has been held in a number of states him in a bank is not within such a provision, where he has no authority to deposit public money at interest. State v. Pierson, 83 Ohio St. 241, 93 N. E. 967. 41 Meacham v. State, 45 Fla. 71, 33 So. 983, 110 Am. St. Rep. 61; Com. v. Norton, 11 Allen (Mass.) 110; State v. Chapin, 74 Ore. 346, 144 Pac. 1187; State v. Morris, 109 Wash. 490, 187 Pac. 350. And see other cases cited in the following notes. Ownership of a promissory note may be laid in an indorser to whom the indorsee has delivered it to collect the interest or otherwise control it. People v. Treadwell, 69 Cal. 226, 10 Pac. 502. A local lodge of a benefit association was held to have such a property right in beneficiary funds collected for transmission to the grand lodge, until so transmitted, as that ownership was properly laid in it. State v. Knowles, 185 Mo. 141, 83 S. W. 1083. Where the vendee of land contracts to deposit the purchase price to the credit of one of two joint owners of the property, title to the money may properly be laid in him. State v. Probert, 19 N. M. 13, 140 Pac. 1108. Ownership of a general or special deposit in a bank may be laid in the bank. Reeves v. State, 95 Ala. 31, 11 So. 158; State v. Morris, 109 Wash. 490, 187 Pac. 350. Ownership may be laid in one of several joint owners who is in possession of the property. Waters v. State, 15 Ga. App. 342, 83 S. E. 200. See also § 751, infra. 42 People v. Smith, 219 N. Y. 222, 114 N. E. 50, aff'g 172 App. Div. 826, 159 N. Y. Supp. 1073. In Nebraska it has been held that ownership may be alleged to be in the estate of a deceased person pending administration. Hendee v. State, 80 Neb. 80, 113 N. W. 1050. See also § 752, infra. 48 Peters v. State, 12 Ala. App. 133, 67 So. 723; People v. Royce, 106 Cal. 173, 37 Pac. 630, 39 Pac. 524. And see § 751, infra. 44 Waterman v. State, 116 Ind. 51, 18 N. E. 63. 45 Peters v. State, 12 Ala. App. 133, 67 So. 723. And see § 751, infra. 46 Riley v. State, 32 Tex. 763. And see § 751, infra. 47 United States v. United States Brokerage & Trading Co., 262 Fed. 459; Peters v. State, 12 Ala. App. 133, 67 So. 723; Barr v. State, 10 Ala. App. 111, 65 So. 197; Waters v. State, 15 Ga. App. 342, 83 S. E. 200. And see § 751, infra. that a person cannot embezzle money or property which he owns jointly with another.50 Other courts, however, have held that a joint New York. People v. Smith, 219 N. Y. 222, 114 N. E. 50, aff'g 172 App. Div. 826, 159 N. Y. Supp. 1073. Ohio. State v. Kusnick, 45 Ohio St. 535, 15 N. E. 481, 4 Am. St. Rep. 564. Pennsylvania. Com. v. Stone, 236 Pa. 35, 84 Atl. 659. South Dakota. State v. Reddick, 2 S. D. 124, 48 N. W. 846. Washington. State v. Hoshor, 26 Wash. 643, 67 Pac. 386. England. Reg. v. Barnes, 8 Cox C. C. 129. An attorney at law cannot be convicted of embezzling money of his client in his hands upon which he has a lien. He is the owner of the money to the extent of his lien, and it is not the client's money until the lien is discharged. Van Etten V. State, 24 Neb. 734, 40 N. W. 289, 1 L. R. A. 669. The payee of labor tickets or labor checks, which are declared on their face to be not transferable, and which the corporation issuing them cannot be compelled to pay to any one but the payee, is the legal and equitable owner of them even after he has attempted to sell them to a third person, and cannot be convicted of embezzlement where they are redelivered to him for collection and he converts the proceeds to his own use. St. Clair v. State, 100 Ala. 61, 14 So. 544. Where an assignment by a public officer of his salary is void as against public policy, an officer who makes such an assignment and is appointed by the assignee as his agent to collect the amount assigned, and who collects it and appropriates it to his own use, is not guilty of embezzlement, since the assignment does not divest him of his right to collect the money for himself and he is not the agent of the assignee in so doing. State v. Williamson, 118 Mo. 146, 23 S. W. 1054, 21 L. R. A. 827, 40 Am. St. Rep. 358. But where an agent receives a check payable to his own order for money due his principal, the money is the money of the principal after the check has been deposited by the principal and credited to his account. People v. Civille, 44 Hun (N. Y.) 497, 5 N. Y. Cr. 530; State V. Hoshor, 26 Wash. 643, 67 Pac. 386. And where payments are made to an agent by checks, and he cashes the same and appropriates the money, he may be convicted of embezzling the money. State v. McCawley, Mo. 180 S. W. 869. Where there has been a sale of property to the defendant, and title has passed, he cannot be convicted of embezzling it. State v. Lyons, 3 Boyce (26 Del.) 72, 80 Atl. 976; Lee v. State, 81 Tex. Cr. 117, 193 S. W. 313. 50 People v. Dettmering, 278 Ill. 580, 116 N. E. 205; People v. Goodrich, 251 Ill. 558, 69 N. E. 542; People v. O'Farrell, 247 Ill. 44, 93 N. E. 136; McElroy v. People, 202 Ill. 473, 66 N. E. 1058; State v. Kent, 22 Minn. 41, 21 Am. Rep. 764; State v. Reddick, 2 S. D. 124, 48 N. W. 846. And see Reg. v. Bren, Leigh & C. 346. Where the owner of farm land leases it for a share of the crop, the lessor and lessee are joint owners of the crop with possession vested in the lessor by the statute, and the lessor is not guilty of embezzlement where he sells the crop and refuses to account for the proceeds. State V. Keith, 126 N. C. 1114, 36 S. E. 169. |