sonal advantage or not, or whether he was actually benefited or not.49 A person may convert money to his own use by paying it out upon his private or personal debt,50 or by converting it to the use of a firm of which he is a member,51 or by mingling it with the funds of an insolvent corporation which is under his control and management, and of which he is a stockholder and officer in charge.52 And an officer of two companies may be guilty of embezzlement by receiving money as the property of one of them and fraudulently applying it to the credit of the other.58 § 544. Authorized acts. A servant, agent or bailee who, without any felonious intent, does with the property or money in his possession only what he is authorized to do by the terms of his contract with the owner,54 or only that which he has a legal right to 49 State v. Egan, 84 N. J. L. 701, 87 Atl. 455, aff'g 82 N. J. L. 317, 83 Atl. 235; State v. Foust, 114 N. C. 842, 19 S. E. 275; State v. Ross, 55 Ore. 450, 104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601, 613; Milbrath v. State, 138 Wis. 354, 120 N. W. 252, 131 Am. St. Rep. 1012. If money is embezzled by others with the assistance and connivance of the defendant, the mere fact that he did not receive any of the fruits of the crime will not exculpate him. Kramer v. State, 16 Ala. App. 456, 78 So. 719, certiorari denied 78 So. 990. 50 Milbrath v. State, 138 Wis. 354, 120 N. W. 252, 131 Am. St. Rep. 1012; Guenther v. State, 137 Wis. 183, 118 N. W. 640. 51 Carr v. State, 104 Ala. 43, 16 So. 155; State v. Hopkins, 56 Vt. 250. 52 Milbrath v. State, 138 Wis. 354, 120 N. W. 252, 131 Am. St. Rep. 1012. 53 State v. Foust, 114 N. C. 842, 19 S. E. 275. 54 Kentucky. Dunavant v. Com., 144 Ky. 210, 137 S. W. 1051. Massachusetts. Com. v. Smith, 129 Mass. 104. Missouri. State V. McWilliams, 267 Mo. 437, 184 S. W. 96. Nebraska. Miller v. State, 16 Neb. 179, 20 N. W. 253. Texas. Parkinson v. State, 87 Tex. Cr. 176, 220 S. W. 774; McCrary v. State, 51 Tex. Cr. 502, 103 S. W. 924, 123 Am. St. Rep. 905, 14 Ann. Cas. 722. It is not embezzlement for an agent to cash a check payable to his order. Gray v. State, 160 Ala. 107, 49 So. 678. Or to deposit checks for money collected for the principal to his own account, where it was not contemplated that he would remit checks so received to the principal, but that he would remit the aggregate amount of each day's collections by a single cashier's check. Herberg v. State, 87 Tex. Cr. 439, 222 S. W. 559. A person who sells property for another and cashes a check received in payment cannot be convicted of embezzling the check, where it is in the line of his duty to collect it. Dotson v. State, 51 Ark. 119, 10 S. W. 18. Where the defendant was authorized by the owner to sell property, the fact that he offered to sell it or sold it would not constitute a conversion do,55 or what the owner expressly or impliedly consents he may do,56 cannot be guilty of embezzlement. But the fact that he has authority to sell property, or to otherwise deal with it, will not prevent his prosecution for embezzling the proceeds.57 And he may be convicted of embezzling the property itself, notwithstanding such authority, if he sells or disposes of it with a fraudulent intent, existing at the time, to appropriate it or its proceeds to his own use. 58 But he is not guilty of embezzling the property if he sells with intent to convert the proceeds merely, 59 or where the fraudulent intent to convert the of it. Cox v. State, 81 Tex. Cr. 115, 193 S. W. 1064. 55 Morrow v. State, 87 Tex. Cr. 287, 220 S. W. 1098; People v. Hill, 3 Utah 334, 3 Pac. 75. An attorney is not guilty of embezzlement in retaining money or property of his client on which he has a lien. Van Etten v. State, 24 Neb. 734, 40 N. W. 289, 1 L. R. A. 669. In People v. Husband, 36 Mich. 306, it was held that the fact that a hotel keeper would have a lien on the baggage of a guest for the amount she might be owing him did not give him the right to dispose of the same as his own, or prevent his conviction of embezzlement for so doing. 56 United States. United States v. Youtsey, 91 Fed. 864. California. Murphy v. Davids, 181 Cal. 706, 186 Pac. 143; People v. Fox, Cal. App. 185 Pac. 211. Delaware. State v. Curtin, 5 Boyce (28 Del.) 518, 95 Atl. 232. Georgia. Cory v. State, 55 Ga. 236. Illinois. People v. Dettmering, 278 Ill. 580, 116 N. E. 205. Oklahoma. Rogers v. State, 14 Okla. Cr. 235, 170 Pac. 269, L. R. A. 1918 E 742. Washington. State v. Ward, 96 Wash. 550, 165 Pac. 794. Wisconsin. Guenther v. State, 137 Wis. 183, 118 N. W. 640. Wyoming. McCann V. States, 2 Wyo. 274. United 57 State V. McWilliams, 267 Mo. 437, 184 S. W. 96; Hanna v. Minnesota Life Ins. Co., 241 Mo. 383, 145 S. W. 412. 58 State v. Adams, 108 Mo. 208, 18 S. W. 1000; Leonard v. State, 7 Tex. App. 417. Though an agent has authority to cash checks and deposit the proceeds to his personal credit, he is guilty of embezzlement if he does this with fraudulent intent. Agar v. State, 176 Ind. 234, 94 N. E. 819. An agent who has a right to convert a draft into money, take out his commission, and pay the balance to his principal, has no right to convert it into money with the intent to appropriate the entire proceeds, and if he sells it with that intent and misappropriates the entire proceeds, embezzlement may be predicated upon the sale. People v. Hanaw, 107 Mich. 337, 65 N. W. 231. Where a check payable to the secretary of a corporation as such or bearer was delivered to him, it was held that it was his duty to turn it over to the treasurer, and that if he cashed it with the intent at the time to convert it, he might be convicted of embezzling it. Shinn v. Com., 32 Gratt. (Va.) 899. 59 Sansberry v. State, 5 Ala. App. 117, 59 So. 340. Where the indictment charges a sale of the property with intent to proceeds is not conceived by him until after the sale has been effected.60 Consent by a person having no authority to authorize the use of money for the purpose for which it is used is no defense,61 nor is the owner's acquiescence after the offense is complete." § 545. Series of acts. Embezzlement may consist of a continuous series of acts of conversion. So where there is an embezzlement of separate amounts by a series of connected transactions from time to time, a charge of embezzlement on a single day will cover and admit evidence of the whole, especially if the embezzlement of the separate amounts is not susceptible of direct proof.63 And there convert it to the defendant's own use, a conviction cannot be had on proof of a sale with intent to appropriate the proceeds. State V. Crosswhite, 130 Mo. 358, 32 S. W. 991, 51 Am. St. Rep. 571. 60 Parkinson v. State, 87 Tex. Cr. 176, 220 S. W. 774; Leonard v. State, 7 Tex. App. 417; Baker v. State, 6 Tex. App. 346. And see Moore v. State, 88 Tex. Cr. 154, 225 S. W. 261; Shinn v. Com., 32 Gratt. (Va). 899. 61 Directors of a corporation have no authority to express the company's consent to the conversion of its money. People v. Lay, 193 Mich. 476, 160 N. W. 467; People v. Butts, 128 Mich. 208, 87 N. W. 224. Nor have the officers or directors of a national bank. Breese V. United States, 106 Fed. 680. And it is no defense to a prosecution of a director for embezzlement of corporate funds by means of fraudulent dividends that all the stockholders were directors and all concurred in the wrongful acts. Taylor v. Com., 119 Ky. 731, 75 S. W. 244. Consent by the board of directors to the use of a bank's funds is no defense unless it was given in good faith and with knowledge of the facts. It is no defense if it is given pursuant to a conspiracy to defraud the bank to which they are parties. McKnight v. United States, 115 Fed. 972. That the members of a board of aldermen know that the town treasurer is using the town funds in his private business is no defense, since they have no power to set aside the statute. Mansur v. Lentz, 201 Mo. App. 256, 211 S. W. 97. It is no defense that an illegal disbursement of city funds by a city treasurer was made in conformity with a custom known to the city authorities. Bolln v. State, 51 Neb. 581, 71 N. W. 444, aff'd 176 U. S. 83, 44 L. Ed. 382, 20 Sup. Ct. 287. 62 Rieger v. United States, 107 Fed. 916; United States v. Youtsey, 91 Fed. 864; Waters v. State, 15 Ga. App. 342, 83 S. E. 200; Union Nat. Bank V. United States Fidelity & Guaranty Co., 143 La. 329, 78 So. 582. 63 Alabama. Willis v. State, 134 Ala. 429, 33 So. 226. Idaho. State v. Dawe, 31 Idaho 796, 177 Pac. 393. Illinois. Ker v. People, 110 Ill. 627, 51 Am. Rep. 706. Louisiana. State v. Dudenhefer, 122 La. 288, 47 So. 614. Mississippi. Davis v. State, 108 is but a single offense where money or property received from different persons or at different times is appropriated by one act.64 But where there are separate appropriations of separate amounts at separate times, each appropriation is a distinct offense.65 And, under such circumstances, a demand for payment of a general balance will not consolidate into one offense the several embezzlements previously committed.66 § 546. Effect of restitution, etc. The offense is complete at the time of the conversion, and is not tolled by subsequent efforts at atonement,67 nor by any subsequent arrangement between the parties.68 Miss. 710, 67 So. 178. And see Starling v. State, 90 Miss. 255, 43 So. 952, 13 Ann. Cas. 776. Missouri. State v. Noland, 111 Mo. 473, 19 S. W. 715. Nebraska. Bolln v. State, 51 Neb. 581, 71 N. W. 444, aff'd 176 U. S. 83, 44 L. Ed. 382, 20 Sup. Ct. 287. North Dakota, State v. Bickford, 28 N. D. 36, 147 N. W. 407, Ann. Cas. 1916 D 140. Ohio. Brown v. State, 18 Ohio St. 496. Oklahoma. See Fulkerson v. State, Okla. Cr. 189 Pac. 1092. Oregon. State v. Reinhart, 26 Ore. 466, 38 Pac. 822. West Virginia. State v. Moyer, 58 W. Va. 146, 52 S. E. 30, 6 Ann. Cas. 344. Wyoming. See Edelhoff v. State, 5 Wyo. 19, 36 Pac. 627. So where a collector takes money collected from different persons on different days, there is a single embezzlement of the whole committed by a series of connected transactions, and where the statute makes the offense punishable in the manner prescribed for stealing property of the same value, the total amount taken determines the punishment. State v. Gibson, 37 Utah 330, 108 Pac. 349. 64 California. People v. Hatch, 13 Cal. App. 521, 109 Pac. 1097. District of Columbia. Henry v. United States, 263 Fed. 459. Missouri. State v. Shour, 196 Mo. 202, 95 S. W. 405; State v. Wise, 186 Mo. 42, 84 S. W. 954; State v. Noland, 111 Mo. 473, 19 S. W. 715. Ohio. Campbell v. State, 35 Ohio St. 70; Gravatt v. State, 25 Ohio St. 162; Shelley v. State, 19 Ohio Cir. Ct. (N. S.) 164, aff'd 85 Ohio St. 481, 98 N. E. 1134. Wyoming. Edelhoff v. State, 5 65 Storm v. Territory, 12 Ariz. 26, 94 Pac. 1099; People v. Hatch, 13 Cal. App. 521, 109 Pac. 1097; Myers v. State, 4 Ohio Cir. Ct. 570. And see Ker v. People, 110 Ill. 627, 51 Am. Rep. 706; Gravatt v. State, 25 Ohio St. 162. As where rent is collected monthly, and each month's rent is converted as received. Edelhoff v. State, 5 Wyo. 19, 36 Pac. 627. Or where there are several separate and distinct bailments for different purposes, and as many separate and distinct conversions with intent to steal. Trask v. People, 35 Colo. 83, 83 Pac. 1010. 66 People v. Hatch, 13 Cal. App. 521, 109 Pac. 1097. 67 Hanna v. Minnesota Life Ins. Co., 241 Mo. 383, 145 S. W. 412. 68 State v. Aceto, 5 Boyce (28 Del.) 597, 96 Atl. 206. So it is no defense that after the conversion the money or property appropriated is restored, or the loss made good by the defendant or others acting in his behalf, or that he offers 70 or promises 71 to restore it to the owner. Nor is it a defense that after the offense was committed the owner offered to compromise, even if he was there 69 Alabama. Wall v. State, 2 Ala. App. 157, 56 So. 57. Arkansas. Russell v. State, 112 Ark. 282, 166 S. W. 540. California. People v. Royce, 106 Cal. 173, 37 Pac. 630, 39 Pac. 524. Georgia. Orr v. State, 6 Ga. App. 628, 65 S. E. 582. Illinois. Meadowcroft v. People, 163 Ill. 56, 45 N. E. 991, 35 L. R. A. 176, 54 Am. St. Rep. 447. Iowa. State v. Schumacher, 162 Iowa 231, 143 N. W. 1110. Kansas. State v. Eastman, 62 Kan. 353, 63 Pac. 597. Louisiana. State v. Pellerin, 118 La. 547, 43 So. 159. Missouri. State v. Noland, 111 Mo. 473, 19 S. W. 715. New York. People v. Shears, 158 App. Div. 577, 143 N. Y. Supp. 861, aff'd 209 N. Y. 610, 103 N. E. 1129. North Carolina. State v. Summers, 141 N. C. 841, 53 S. E. 856. North Dakota. State v. Bickford, 28 N. D. 36, 147 N. W. 407, Ann. Cas. 1916 B 140. Ohio. State v. Cameron, 91 Ohio St. 50, 109 N. E. 584; State v. Baxter, 89 Ohio St. 269, 104 N. E. 331, 52 L. R. A. (N. S.) 1019, Ann. Cas. 1916 C 60. the infliction of a fine in double the amount embezzled, for the use of the owner of the money. State v. Cameron, 91 Ohio St. 50, 109 N. E. 584. The fact that after state funds deposited with a trust company were converted by its officers the company gave the state treasurer collateral security was held no defense, where the statute required the giving of security for such deposits. State v. Ross, 55 Ore. 450, 104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601, 613. It is no defense that the defendant's sureties have made good the loss. Fleener v. State, 58 Ark. 98, 23 S. W. 1; Robson v. State, 83 Ga. 166, 9 S. E. 610; Busby v. State, 51 Tex. Cr. 289, 103 S. W. 638. 70 United States. United States v. Harper, 33 Fed. 471. Illinois. Meadowcroft v. People, 163 Ill. 56, 45 N. E. 991, 35 L. R. A. 176, 54 Am. St. Rep. 447. Iowa. State v. Wilson, -, 179 N. W. 305. Iowa |