§ 528. Public officers, employees, etc. A public officer is within a statute punishing embezzlement by officers generally.99 And a statute punishing embezzlement by any agent is broad enough to include an agent of the state.1 Public officers are generally held not to be within statutes punishing embezzlement by officers of corporations 2 although there is some authority to the contrary. It has been held that a statute punishing embezzlement by a clerk to any body corporate includes a clerk to a public corporation, such as county commissioners. But it has also been held that the keeper of a poorhouse, employed by a superintendent of the poor who is made a corporation, is not within a statute punishing embezzlement by any clerk or servant of any private person or of any incorporated company. Statutes in most of the states expressly punish the embezzlement of public funds by state, county or municipal officers or employees.6 99 State v. Raby,, 31 Wash. 111, 71 Pac. 771; State v. Isensee, 12 Wash. 254, 40 Pac. 985. 1 State v. Bancroft, 22 Kan. 170. 2 Compton v. State, 102 Ark. 213, 143 S. W. 897; State v. Connelly, 104 N. C. 794, 10 S. E. 469. A state officer is not within a statute punishing embezzlement by an officer or agent of "any association, society, or corporation, public or private." State v. Taylor, 7 S. D. 533, 5 Coats v. People, 22 N. Y. 245. 6 See the statutes of the various states and the following cases: Arizona. Storm v. Territory, 12 Ariz. 26, 94 Pac. 1099. Arkansas. Parker v. State, 130 Ark. 234, 197 S. W. 283; Davis v. State, 80 Ark. 310, 97 S. W. 54. Florida. Middleton v. State, 74 Fla. 234, 76 So. 785; Sigsbee v. State, 43 Fla. 524, 30 So. 816. Idaho. In re Huston, 27 Idaho 231, 147 Pac. 1064; State v. Steers, 12 Idaho 174, 85 Pac. 104. Illinois. Goodhue v. People, 94 Ill. 37; Tonsor v. Fidelity & Deposit Co. of Maryland, 173 Ill. App. 383. Indiana. Sherrick v. State, 167 Ind. 345, 79 N. E. 193. Iowa. State v. McKinney, 130 Iowa 370, 106 N. W. 931. Kansas. State v. Radford, 82 Kan. 853, 109 Pac. 284; State v. Spaulding, 24 Kan. 1. Louisiana. State V. Dudenhefer, 122 La. 288, 47 So. 614. Michigan. People v. Butts, 128 Mich. 208, 87 N. W. 224; People v. Seeley, 117 Mich. 263, 75 N. W. 609. Mississippi. Hemingway v. State, 68 Miss. 371, 8 So. 317. Missouri. State v. Noland, 111 Mo. 473, 19 S. W. 715; State v. Findley, 101 Mo. 217, 14 S. W. 185; Mansur v. Lentz, 201 Mo. App. 256, 211 S. W. 97. Nevada. State v. Nevin, 19 Nev. 162, 7 Pac. 650, 3 Am. St. Rep. 873. North Dakota. State v. Bickford, 28 N. D. 36, 147 N. W. 407, Ann. Cas. 1916 D 140. Ohio. State v. Baxter, 89 Ohio St. Some of them in terms include deputies, clerks, agents and servants of such officers." And many of them in terms apply to any person who receives or has the custody or possession of public funds, or to 269, 104 N. E. 331, 52 L. R. A. (N. S.) 1019, Ann. Cas. 1916 C 60. Oklahoma. Fulkerson v. State, Okla. Cr., 189 Pac. 1092. 66 A state treasurer is within a statute punishing embezzlement by a public officer of money which he is by law bound to pay over, account for, or deliver to the treasurer of this state, or to any other person by law authorized to receive the same.'' State v. Archer, 73 Md. 44, 20 Atl. 172. And also within a statute punishing embezzlement by "any officer, clerk, or other person employed in the treasury of this state." People v. McKinney, 10 Mich. 54. And a deputy state treasurer is an officer. State v. Brandt, 41 Iowa 593. A clerk of a board of inspectors of convicts is a public officer. Lacey v. State, 13 Ala. App. 212, 68 So. 706; certiorari denied 193 Ala. 677, 69 So. 1018. Tax collectors are public officers. State v. Walton, 62 Me. 106. A clerk of a county board of commissioners of roads and revenues is a county officer. Cooper v. State, 101 Ga. 783, 29 S. E. 22. And a drainage commissioner is an officer of the county for which he is appointed. State v. Wells, 112 Ind. 237, 13 N. E. 722. A collector of town taxes is a town, and not a state, officer. State v. Griswold, 73 Conn. 95, 46 Atl. 829. Officers of the University of Illinois are within a statute punishing embez zlement by any state, county, township, city, town, village, or other officer." Spalding v. People, 172 Ill. 40, 49 N. E. 993. A justice of the peace who embezzles money collected for fines is within the Virginia statute. Robinson v. Com., 104 Va. 888, 52 S. E. 690. "A trustee of county bonds," employed by county commissioners, pursuant to law, is an employee in a county office. Crane v. State, 76 Fla. 236, 79 So. 806. A Maryland statute was held to include only such officers as were required by law to account for, pay over or deliver public money, and hence not a clerk to county commissioners. State v. Denton, 74 Md. 517, 22 Atl. 305. An information charging a person with embezzlement of money coming into his possession as "county physician" is demurrable where there is no such officer known to the law. People v. Shearer, 143 Cal. 66, 76 Pac. 813. A public officer is not criminally responsible for embezzlement by his subordinates in the absence of guilty knowledge or participation on his part. Rast v. State, 79 Fla. 772, 84 So. 683. 7 See the statutes and the following cases: People v. Shearer, 143 Cal. 66, 76 Pac. 813; People v. Cobler, 108 Cal. 538, 41 Pac. 401; People v. Gray, 66 Cal, 271, 5 Pac. 240; Rast v. State, 79 Fla. 772, 84 So. 683; State v. Dawe, 31 Idaho 796, 177 Pac. 393; Spalding v. People, 172 Ill. 40, 49 N. E. 993; Goodhue v. People, 94 Ill. 37. A person appointed by a township treasurer as his deputy, and who acts as such, is the agent of the treasurer whether his appointment as deputy is valid or not. People v. Sanders, 139 Mich. 442, 102 N. W. 959. 8 See the statutes and the following cases: Winchester Elec. Light Co. v. Veal, 145 Ind. 506, 41 N. E. 334; any person charged with the collection, receipt, safe-keeping, transfer or disbursement of the same. They apply to officers de facto.10 The Federal Penal Code contains similar provisions for the punishment of federal officers who embezzle public money or other funds coming into their hands by virtue of their offices, and of persons other than federal officers who embezzle public funds or property.11 44 N. E. 353; Smedley v. Com., 138 Ky. 1, 127 S. W. 485, 129 S. W. 547; Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551; Bork v. People, 91 N. Y. 5. Officers of a trust company with which state funds are deposited pursuant to law come within a provision punishing embezzlement by "any person who shall receive any money whatever for this state." State v. Ross, 55 Ore. 450, 104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601, 613. A deputy county court clerk who converts state license money collected by him pursuant to law is within a statute punishing embezzlement by any person having the custody, control or distinct possession of any money, etc., for the use of the state, under any trust or duty to keep, return, or specifically apply the same. Com. v. Bodley, 17 Ky. 561, 31 S. W. 463. 9 See § 536, infra. 10 People v. Cobler, 108 Cal. 538, 41 Pac. 401; State v. Stone, 40 Iowa 547; Fortenberry v. State, 56 Miss. 286; State v. Findley, 101 Mo. 217, 14 S. W. 185; Bartley v. State, 53 Neb. 310, 73 N. W. 744. 11 Pen. Code, § 97, provides for the punishment of any officer of the United States, or any assistant of such officer, who shall embezzle or wrongfully convert to his own use any money or property which may have come into his possession or under his control in the execution of such office. This provision applies to a deputy clerk of a federal district court who converts to his own use money of persons other than the United States, deposited with the clerk to secure the payment of costs. United States v. Davis, 243 U. S. 570, 61 L. Ed. 906, 37 Sup. Ct. 442. Or to a clerk who converts to his own use money deposited in court to which he claims to be entitled as fees, but before he has earned such fees. United States v. Dodge, 251 Fed. 737, 740. Pen. Code, § 47, provides for the punishment of whoever embezzles any money, property, etc., of the United States. A bailee to sell on commission is within this provision. United States v. United States Brokerage & Trading Co., 262 Fed. 459. The following cases were decided under Act March 3, 1875, c. 144, which was similar to, and was superseded by this provision: Moore v. United States, 160 U. S. 268, 40 L. Ed. 422, 16 Sup. Ct. 294; United States v. Allen, 150 Fed. 152; United States v. Swan, 7 N. M. 306, 34 Pac. 533; McCann United States, 2 Wyo. 274. V. Pen. Code, § 96, provides that every banker, broker, or other person not an authorized depositary of public moneys, who shall knowingly receive any such money on deposit, or by way of loan or accommodation, or shall use, transfer, convert, appropriate, or apply any portion of the public money for any purpose not authorized by law, shall be guilty of embezzlement. United States V. In addition to general provisions, it specifically provides for the punishment of embezzlement of public money or property by internal revenue officers and their assistants, 12 by disbursing officers of the United States or persons acting as such,13 and by any officer or other person charged by act of congress with the safe-keeping of the public moneys,14 and also embezzlement by postmasters and others in the postal service of any money coming into their hands as such,15 and embezzlement by a clerk or other officer of a federal court of money paid into court.16 § 529. Officers, employees, etc., of corporations and associations. In most of the states there are statutes specifically punishing embezzlement by officers, agents, servants or employees of corporations.17 Greene, 146 Fed. 778, aff'd 154 Fed. 401. An earlier statute of this character in terms applied only to officers of banks and banking associations. United States v. Hartwell, 6 Wall. (73 U. S.) 385, 18 L. Ed. 830. 12 Pen. Code, § 97. 13 Pen. Code, § 87; Carter v. McClaughry, 183 U. S. 365, 46 L. Ed. 236, 22 Sup. Ct. 181. 14 Pen. Code, § 89. The following cases involved earlier statutes which were superseded by this provision: United States v. Cook, 17 Wall. (84 U. S.) 168, 21 L. Ed. 538. United States v. Hutchinson, Fed. Cas. No. 15, 432, 4 Clark 211; United States v. Forsythe, 6 McLean (U. S.) 584, Fed. Cas. No. 15, 133; United States v. Bowerman, Fed. Cas. No. 14, 630. A clerk in the office of the assistant treasurer of the United States, appointed by the assistant treasurer with the approval of the secretary of the treasury was held to be within the earlier statutes. United States v. Hartwell, 6 Wall (73 U. S.) 385, 18 L. Ed. 830. But a clerk of a collector of customs whose appointment is not required to be approved by the sec retary of the treasury was held not to be. United States v. Smith, 124 U. S. 525, 31 L. Ed. 534, 8 Sup. Ct. 595. 15 See § 1461 et seq., infra. 16 Pen. Code, § 99; United States v. Dodge, 251 Fed. 737, 740. And see United States v. Davis, 243 U. S. 570, 61 L. Ed. 906, 37 Sup. Ct. 442. 17 See the statutes of the various states and the following cases: Alabama. Mehaffey v. State, 16 Ala. App. 99, 75 So. 647. California. People v. Gallagher, 100 Cal. 466, 35 Pac. 80. Georgia. Cory v. State, 55 Ga. 236; Cook v. State, 8 Ga. App. 522, 70 S. E. 31. Iowa. State v. Carmean, 126 Iowa 291, 102 N. W. 97, 106 Am. St. Rep. 352; State v. Goode, 68 Iowa 593, 27 N. W. 772. Kentucky. Taylor v. Com., 119 Ky. 731, 75 S. W. 244; Stone v. Com., 104 Ky. 220, 46 S. W. 721, 84 Am. St. Rep. 452. Michigan. People v. Lay, 193 Mich. 476, 160 N. W. 467; s. c., 193 Mich. 17, 159 N. W. 299, L. R. A. 1917 B 608. Missouri. State v. Shour, 196 Mo. 202, 95 S. W. 405; Hamuel v. State, 5 Mo. 260. Some of the statutes in terms punish embezzlement by officers, agents or employees of banks.18 And the federal statutes punish embezzlement by officers, clerks or agents of national banks.19 Some of the statutes also specifically punish embezzlement by officers, employees, etc., of unincorporated associations, 20 or benevolent organizations.21 The term "officers' includes the treasurer of a railroad company 22 and officers de facto.23 Who are agents,24 clerks, servants 25 and employees,26 within the meaning of such provisions, has been considered in prior sections. V. CHARACTER IN WHICH THE PROPERTY IS RECEIVED OR HELD § 530. In general. The statutes punishing embezzlement sometimes require that the property shall have been received or held in possession by the accused in some particular character, or for some particular purpose, and, when this is the case, the conversion of property will not be embezzlement, unless the property was so received or held. This is true, for example, of a statute punishing conversion Nevada. State v. Weber, 31 Nev. 385, 103 Pac. 411. New Hampshire. State v. Newman, 74 N. H. 10, 64 Atl. 761. Ohio. Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121. Pennsylvania. Com. v. Keuhne, 42 Pa. Super. Ct. 361. Texas. State v. Johnson, 21 Tex. 775. A statute punishing embezzlement of passenger railroad tickets by employees, etc., of "any incorporated railroad company" was held to apply to steam railroads only, and not to street railway companies. People v. Beebehyser, 157 Mich. 239, 121 N. W. 751. 18 Reeves v. State, 95 Ala. 31, 11 So. 158; Cory v. State, 55 Ga. 236; State v. Nicholls, 50 La. Ann. 699, 23 So. 980; Com. v. Keuhne, 42 Pa. Super. Ct. 361. 19 U. S. Rev. St., § 5209; Agnew v. United States, 165 U. S. 36, 41 L. Ed. 624, 17 Sup. Ct. 235; Hopkins v. McClaughry, 209 Fed. 821; Spencer v. United States, 169 Fed. 562; United States v. Youtsey, 91 Fed. 864; United States v. Harper, 33 Fed. 471; Union Nat. Bank v. United States Fidelity & Guaranty Co., 143 La. 329, 78 So. 582. 20 Rohde v. United States, 34 App. Cas. (D. C.) 249. A lodge of the brotherhood of railroad trainmen. Laycock v. State, 136 Ind. 217, 36 N. E. 137. 21 State v. Wise, 186 Mo. 42, 84 S. W. 954; State v. Knowles, 185 Mo. 141, 83 S. W. 1083. 22 Com. v. Tuckerman, 10 Gray (76 Mass.) 173. 23 People v. Leonard, 106 Cal. 302, 39 Pac. 617. And see § 528, supra. 24 See § 526, supra. 25 See § 525, supra. 26 See §§ 528, 529, supra. 27 Colorado. Simpson v. People, 47 Colo. 612, 108 Pac. 169. Idaho. In re Huston, 27 Idaho 231, 147 Pac. 1064. Indiana. Sherrick v. State, 167 Ind. 345, 79 N. E. 193. |