or loans, either with or without interest; or deposits with any person or persons, corporation or corporations, contrary to law; or exchanges for other funds, except as allowed by law, any portion of such money, funds, securities, bonds, choses in action, or other property-is guilty of embezzlement, and upon conviction thereof, shall be imprisoned in the state prison not more than twenty-one years nor less than two years, fined not exceeding double the value of the money or other property embezzled, and disfranchised, and rendered incapable of holding any office of trust or profit for any determinate period.

See section 2029.

2020. (1943.) Embezzlement by officers.-42. Any county treasurer, county auditor, sheriff, clerk, or receiver of any court, township trustee, justice of the peace, mayor of a city, constable, marshal of any city or incorporated town, or any officer or agent of any county, civil or school township, city, or incorporated town, who shall fraudulently fail or refuse, at the expiration of the term for which he was elected or appointed, or at any time during such term, when legally required by the proper person or authority; to account for, deliver, and pay over to such person or persons as may be lawfully entitled to receive the same, all moneys, choses in action or other property which may have come into his hands by virtue of his said office, shall be deemed guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the state prison for any period not more than five years nor less than one year, and fined in any sum not exceeding one thousand dollars, and rendered incapable of holding any office of trust or profit for any determinate period.

This section was not repealed by the act of March, 1883 (Acts 1883, p. 106; Ell. Supp., section 340, being the next succeeding section), modifying the case of State v. Mason, 108 Ind. 48; State v. Wells, 112 Ind. 237.

An indictment against a county treasurer for embezzlement need not state the fund to which the money embezzled belonged. Hollingsworth v. State, 111 Ind. 289. No demand need be made by the successor of an officer for the payment of the funds embezzled before a prosecution for the offense. Hollingsworth v. State, 111 Ind. 289. An indictment against an officer for failing to pay over money to his successor must allege that such failure was either unlawful or felonious. Stropes v. State, 120 Ind. 562. In charging an officer for failure to pay over money required by law to be paid at stated times, such facts must be stated as will show a clear violation of his duty. State *. Record, 56 Ind. 107.

An indictment against an officer for failing to pay over money to his successor must allege that the term of such officer has expired, and that he failed to pay over to his successor a sum received by such officer during his term, and which he should have State v. Hebel, 72 Ind. 361.

paid over.

Drainage commissioners who fail to pay over money at the expiration of their terms, as required by law, are guilty of embezzlement. State v. Wells, 112 Ind. 237.

Prosecutions are barred in two years after the expiration of the term of the officer, and a demand made after the expiration of such term will not extend the time for beginning the prosecution. State v. Mason, 108 Ind. 48.

[Acts 1883, p. 106. In force June 5, 1883.]

2021. (E. S. 340.) Embezzlement-County officers.-1. That it

shall be the duty of each clerk, sheriff and treasurer of the several counties in this state, and every other officer receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, taking the receipt of such successor therefor; and such successor and his sureties shall be liable therefor on his official bond, as if the same had been originally collected by him; and any clerk, treasurer or sheriff so failing to pay over such moneys, or any successor, or clerk, treasurer or sheriff who shall fail to pay over any moneys to parties entitled to receive the same, when called on to do so, shall be deemed guilty of embezzlement, and, on conviction thereof, shall be fined in any sum not exceeding one thousand dollars, and be imprisoned at hard labor in the state prison not less than one nor more than five years.

This section does not repeal the next preceding section, modifying the statement to that effect in the case of State v. Mason, 108 Ind. 48; State v. Wells, 112 Ind. 237. As to the necessary allegations in an indictment under this section, see State v. Hebel, 72 Ind. 361; Hollingsworth v. State, 111 Ind. 289; Stropes v. State, 120 Ind. 562. As to embezzlement by school officers under the school-book law, see section 10 of such law as set forth under the title of education, vol. 2.

[1881 S., p. 174. In force September 19, 1881.]

2022. (1944.) Embezzlement by employes.-43. Every officer, agent, attorney, clerk, servant, or employe of any person or persons, or corporation or association, who, having access to, control, or possession of any money, article, or thing of value, to the possession of which his or her employer or employers is or are entitled, shall, while in such employment, take, purloin, secrete, or in any way whatever appropriate to his or her own use, or to the use of others, or knowingly permit any other person to take, purloin, secrete, or in any way appropriate to his or her own use, or to the use of others, any money, coin, bills, notes, credits, choses in action, or other property or article of value, belonging to or deposited with, or held by such person or persons, or corporation or association, in whose employment said officer, agent, attorney, clerk, servant, or employe may be, shall be deemed guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the state prison for not more than fourteen years nor less than two years, fined in any sum not more than one thousand dollars nor less than one dollar, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.

This section was only intended to declare and make criminal acts not before punishable as such, and where the act constitutes larceny a prosecution will not lie under this section. Smith v. State, 28 Ind. 321. See State v. Wingo, 89 Ind. 204.

Embezzlement and larceny may be included in the same indictment. Griffith r. State, 36 Ind 406.

An indictment for embezzlement by an employe need not set out the facts as to the employment, as "employe" has a well defined meaning. Ritter v. State, 111 Ind. 324. The consignee of property may be alleged to be the owner thereof in a prosecution under this section. Waterman v. State, 116 Ind. 51.

If an employe in possession of the employer's goods feloniously sells the same, he is

guilty of embezzlement, and not of larceny. State v. Wingo, 89 Ind. 204; Jones v. State, 59 Ind. 229.

An agent collecting money for a foreign insurance company can not set up as a defense, to a prosecution for embezzlement, that the business done by such company was illegal. State v. Tumey, 81 Ind. 559.

An agent who is prosecuted for embezzling money of his principal can not show as a defense that he received the money in an illegal business. Woodward v. State, 103 Ind. 127.

There must be some intention to commit a wrong in order to constitute embezzlement, but there need not be both a wrong or felonious intent at the time of the appropriation. Fowler v. Wallace, 131 Ind. 347.

2023. (1945.) Embezzlement by lawyers and collectors.-44. Any attorney-at-law or person engaged in making collections for others, who, having money or other thing of value in his possession, or under his control, received for his or her client or employer, shall fraudulently refuse to pay over or deliver the same to his or her client or employer, or the person or persons by them designated to receive the same, less the charges thereon, on reasonable demand, shall be deemed guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the state prison not more than fourteen years nor less than two years, fined in any sum not more than one thousand dollars nor less than one dollar, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.

The consignee of property may be alleged to be the owner thereof in a prosecution under this section. Waterman v. State, 116 Ind. 51.

2024. (1946.) Embezzlement by railroad employes.-45. Every conductor, clerk, or other employe of a railroad company, who shall, in the course of his employment, come into the possession of a local or coupon railroad ticket, belonging to such railroad company, and shall sell or barter the same, give the same away, or appropriate the same to his own use, with intent to defraud the railroad company whose employe he is, or to defraud any other railroad company, shall be deemed guilty of embezzlement, and, upon conviction thereof, shall be fined in any sum not more than five hundred dollars nor less than one dollar, and imprisoned in the state prison not more than five years nor less than one year.

2025. (1947.) Embezzlement by innkeepers and carriers.—46. Any innkeeper intrusted by his guest or boarder with anything of value for safe-keeping, or any person intrusted with anything of value to be carried for hire, who embezzles or fraudulently converts the same to his or her own use, is guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the state prison not more than fourteen years nor less than six months, fined not more than one thousand dollars nor less than one dollar, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.

2026. (1948.) Embezzlement by bailee.-47. A storage, forwarding, or commission merchant, carrier, warehouseman, factor, auc

tioneer, or his clerk, agent, or employe, who, with intent to defraud, sells or in any way disposes of, or applies or converts to his own use, any bill of lading, custom-house permit, or warehouse receipt, intrusted to or possessed by him, or any property intrusted or consigned to him, or the proceeds or profits of any sale of such property, or fraudulently fails to pay over such proceeds, deducting charges and usual commissions; and a consignor of any property or his agent, not being the absolute owner thereof, who, with intent to defraud, after delivery thereof for transportation on any wharf-boat, water-craft, or vehicle, in any way stops, countermands, or changes the consignment thereof, or sells, disposes of, or incumbers such property during transit or after the delivery thereof, or in any way converts the same to his own use,—is guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the state prison not more than five years nor less than one year, fined in any sum not more than one hundred dollars, and disfranchised and rendered incapable of holding any of fice of trust or profit for any determinate period.

2027. (1949.) Embezzlement by tenants.-48. Whoever, being a tenant, with intent to defraud his landlord, unlawfully disposes of, or applies or converts to his own use, without the authority or consent of such landlord, so much of the crop growing or raised on the leased premises, as belongs to the landlord under his contract of leasing with such tenant, is guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the state prison not more than three years nor less than one year.

2028. (1950.) Embezzlement by treasurers.-49. If the treasurer of state, or any county treasurer or city treasurer, or the treasurer of any town shall use the money of any particular fund, or the money appropriated by law for any particular purpose, to pay any warrant drawn upon any other fund or appropriation, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county jail not more than six months nor less than one month, and fined in any sum not more than five thousand dollars nor less than one hundred dollars.

2029. (1951.) Embezzlement of public funds.-50. A member of the common council of any city or of the board of school trustees of any city or town, or the board of trustees of any town, or the mayor, president, officer, agent, attorney, clerk, or servant of such corporation, or any township trustee, who knowingly diverts, appropriates, or applies any funds or a part of any fund, raised under any law by taxation or otherwise, to any other use or purpose than that for which it was raised or appropriated; or who knowingly diverts, appropriates, or applies, or assists in diverting, appropriating, or applying, any money, borrowed on any bond of the corporation, or any part of the proceeds of such bond, to any other use or purpose than that for which such loan was made or bond issued, or to any use or purpose than is authorized by the charter or law governing such corporation, shall be deemed guilty of embezzlement, and, upon conviction thereof,

shall be imprisoned in the state prison not more than five years nor less than one year, fined not more than one thousand dollars nor less than one dollar, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.

See section 2019.

2030. (1952.) Embezzlement by fiduciaries.-51. Whoever, being the administrator of the estate of a decedant, or the executor of a last will, or guardian of any minor or insane person, or trustee or other person acting in any fiduciary capacity, without good cause, fails or refuses, when legally required by the proper person or authority, to account for or pay over to such person or persons as may be lawfully entitled to receive the same, any money, choses in action, or other property which may have come into his hands by virtue of his office, duty or trust, shall be deemed guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the state prison not more than five years nor less than one year, fined not exceeding one thousand dollars, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.

If sureties on the bond of an administrator are compelled to pay money to cover his defalcation, a demand by them for repayment of such money and a refusal by such administrator, does not make him guilty of embezzlement. Such a demand, to make a refusal embezzlement, must be made by a person who is entitled to receive the trust estate from the administrator. State v. Adamson, 114 Ind. 216.

A surviving partner, while engaged in winding up the partnership business, is acting in a fiduciary capacity, and may be prosecuted for embezzling the funds of the partnership. State v. Matthews, 129 Ind. 281.

Guardians may be prosecuted for the embezzlement of the funds of their wards. Colvin v. State, 127 Ind. 403.

[Acts 1891, p. 395. In force June 3, 1891.]

2031. Embezzlement by bankers and brokers.-1. If any banker, or broker, or person or persons doing a banking business, or any officer of any banking company, or incorporated bank doing business in this state, shall fraudulently receive from any person or persons, firm, company or corporation, or from any agent thereof, not indebted to said banker, broker, banking company or incorporated bank any money, check, draft, bill of exchange, stocks, bonds, or other valuable thing which is transferable by delivery, when, at the time of receiving such deposit, said banker, broker, banking company or incorporated bank is insolvent, whereby the deposit so made shall be lost to the depositor, said banker, broker or officer, so receiving such deposit, shall be deemed guilty [of] embezzlement, and upon conviction thereof, shall be fined in a sum double the amount of the sum so embezzled and fraudulently taken, and in addition thereto may be imprisoned in the state prison not less than one, nor more than three years.

The failure, suspension or involuntary liquidation of banker, broker, banking company or incorporated bank, within thirty days from and after the time of receiving such deposit, shall be prima facie