such is the case, it must appear, in order to sustain a conviction, that the accused comes within one of the classes so enumerated.84 His being within the intent and spirit of the statute is not enough.35 But a person who obtains the possession, care or control of money or property while occupying such a relationship may be convicted of embezzlement though the conversion does not take place until after the relationship has terminated.36 § 525. Clerks and servants. To be a clerk or servant one must be under the immediate direction and control of his master or employer.37 A statute punishing embezzlement by a "clerk" or "serv v. United States, 45 App. Cas. 112. Maine. State v. Whitehouse, 95 Me. 179, 49 Atl. 869. Michigan. People v. Hiller, 113 Mich. 209, 71 N. W. 630. Mississippi. State v. Gillis, 75 Miss. 331, 24 So. 25. Montana. Smith v. Smith, 45 Mont. 535, 125 Pac. 987. Nebraska. Edmondson v. State, 89 Neb. 797, 132 N. W. 527. Pennsylvania. Com. v. Kaufman, 9 Pa. Super. Ct. 310. Embezzlement by a guardian of the pension of his ward is punished by the federal statutes. United States v. Hall, 98 U. S. 343, 25 L. Ed. 180. 34 Alabama. Pullam v. State, 78 Ala. 31, 56 Am. Rep. 21; Mehaffey v. State, 16 Ala. App. 99, 75 So. 647. Colorado. Simpson v. People, 47 Colo. 612, 108 Pac. 169. Illinois. Lycan v. People, 107 Ill. 423. Indiana. Sherrick v. State, 167 Ind. 345, 79 N. E. 193. Louisiana. State v. Ives, 128 La. 273, 54 So. 796, Ann. Cas. 1912 C 901. Missouri. Hamuel v. State, 5 Mo. 260. Montana. United States v. Upham, 2 Mont. 170. New Hampshire. State v. Butman, 61 N. H. 511, 60 Am. Rep. 332. New York. People v. Allen, 5 Den. 76. S. D. 533, 64 N. W. 548. Tennessee. Dixie Fire Ins. Co. v. Nelson, 128 Tenn. 70, 157 S. W. 416. Texas. Griffin v. State, 4 Tex. App. 390. England. Reg. v. Turner, 11 Cox C. C. 551. The description of the person against whom the penalty is denounced is to that extent descriptive of the offense. Moore v. State, 53 Neb. 831, 74 N. W. 319; State v. Meyers, 56 Ohio St. 340, 47 N. E. 138. 35 State v. Butman, 61 N. H. 511, 60 Am. Rep. 332; State v. Meyers, 56 Ohio St. 340, 47 N. E. 138; State v. Taylor, 7 S. D. 533, 64 N. W. 548. 36 State v. Jennings, 98 Mo. 493, 11 S. W. 980. 37 Florida. Tipton v. State, 53 Fla. 69, 43 So. 684. Indiana. State v. Sarlls, 135 Ind. 195, 24 N. E. 1129. Kansas. State v. Yeiter, 54 Kan. 277, 38 Pac. 320. Ohio. Gravatt v. State, 25 Ohio St. 162. ant" does not apply to a person who stands in the relation of agent or bailee,38 or to a person who is engaged in an independent trade or business, and employed to perform services in the course of such trade or business,39 or to a mere volunteer, who is not employed to perform a service, but who does so by request in a single instance.40 By the weight of authority the employment need not be for any particular length of time, but may be for a single occasion only.41 And it is not necessary that there shall be a formal appointment. One who acts as servant for another, with the other's acquiescence, is a servant de facto, and within the statute.42 An employee may be a clerk or servant though paid by commission, and not by salary, 43 or, according to the better opinion, even though he receives no compensation at all.44 An officer of an unincorporated society may be its servant and may be guilty of embezzling its money as such.45 So it has been held that a cashier of an unincorporated bank conducted by a partner England. Reg. v. Bailey, 12 Cox C. C. 56; Reg. v. Turner, 11 Cox C. C. 551; Reg. v. Bowers, 10 Cox C. C. 250; Reg. v. Walker, 8 Cox C. C. 1. As to the distinction between an agent and a servant, see People v. Treadwell, 69 Cal. 226, 10 Pac. 502. 38 Com. v. Libbey, 11 Metc. (Mass.) 64, 45 Am. Dec. 185; Com. v. Stearns, 2 Metc. (Mass.) 343; People v. Burr, 41 How. Pr. (N. Y.) 293; Reed v. State, 16 Tex. App. 586; Reg. v. Bowers, 10 Cox C. C. 250; Reg. v. Walker, 8 Cox C. C. 1. 39 Com. v. Young, 9 Gray (Mass.) 5; Com. v. Libbey, 11 Metc. (Mass.) 64, 45 Am. Dec. 185; Com. v. Stearns, 2 Metc. (Mass.) 343; People v. Burr, 41 How. Pr. (N. Y.) 293; Reg. v. Hall, 13 Cox C. C. 49. A constable employed to collect certain claims without suit, if possible, and by suit if not, is not the servant or clerk of the creditor. People v. Allen, 5 Den. (N. Y.) 76. 40 Reg. v. Mayle, 11 Cox C. C. 150; Reg. v. Hoare, 1 Fost. & F. 647; Rex v. Nettleton, 1 Moody C. C. 259. 41 Delaware. State v. Aceto, 5 England. Reg. v. Thomas, 6 Cox C. C. 403; Reg. v. Winnall, 5 Cox C. C. 326; Rex v. Smith, Russ. & R. 384. Contra, Johnson v. State, 9 Baxt. (Tenn.) 279; Rex v. Freeman, 5 Car. & P. 534. 42 Tipton v. State, 53 Fla. 69, 43 So. 684; State v. Heath, 8 Mo. App. 99, rev'd 70 Mo. 565; Rex v. Rees, 6 Car. & P. 606; Rex v. Beacoll, 1 Car. & P. 457. 43 Reg. v. Bailey, 12 Cox C. C. 56; Reg. v. Turner, 11 Cox C. C. 551; Reg. v. Tite, Leigh & C. 29; Rex v. Carr, Russ. & R. 198. 44 State v. Brooks, 85 Iowa 366, 52 N. W. 240; State v. Barter, 58 N. H. 604; Reg. v. Hoare, 1 Fost. & F. 647. 45 Faggard v. State, 3 Okla. Cr. 159, 104 Pac. 930. ship is a clerk or servant.46 But it has been held that a cashier of a corporation is not a clerk.47 A person employed as collector may be a clerk or servant.48 But it has been held that a mere servant or employee is not a clerk.49 A person may be a servant of a particular person although he is employed by other persons and for different purposes at the same time.50 But a person employed by an agent of a company, who is under the direction and control of the agent exclusively, and ac"ountable to him alone, is not the servant of the company.51 And a hotel clerk is not the clerk or servant of a guest who gives him money to put in the hotel safe for safe-keeping.52 § 526. Agents. A statute punishing embezzlement by agents applies only to persons who stand in the legal relation of agent of another. An agent is one to whom is delegated authority to act for and in the name of his employer, and who is not under his employer's immediate direction and control.53 The relation may exist without 46 A cashier of an unincorporated bank conducted by a partnership is a clerk or servant. State v. Yeiter, 54 Kan. 277, 38 Pac. 320. 47 Miller v. State, 88 Tex. Cr. 77, 225 S. W. 382; Miller v. State, 88 Tex. Cr. 69, 225 S. W. 379. 48 State v. Sarlls, 135 Ind. 195, 34 N. E. 1129. 49 Mehaffey v. State, 16 Ala. App. 99, 75 So. 647. 50 Reg. v. Tite, 8 Cox C. C. 458. The fact that a person was county auditor was held not to prevent him from being the agent and servant of the county in handling funds which he was not authorized to receive as auditor, and for handling which he received additional compensation. State v. Heath, 8 Mo. App. 99, rev'd 70 Mo. 565. 51 Tipton v. State, 53 Fla. 69, 43 So. 684. 52 Chanock v. United States, 267 Fed. 612. 53 Alabama. Echols v. State, 158 Ala. 48, 48 So. 347; Pullam v. State, 78 Ala. 31, 56 Am. Rep. 21. California. People v. Treadwell, 69 Cal. 226, 10 Pac. 502. Colorado. Simpson v. People, 47 Colo. 612, 108 Pac. 169. Delaware. State v. Curtin, 5 Boyce (28 Del.) 518, 95 Atl. 232; Foster v. State, 2 Pennew. 111, 43 Atl. 265, aff'g 1 Pennew. 289, 40 Atl. 939. Illinois. People v. Ehle, 273 Ill. 424, 112 N. E. 970. Kansas. State v. Yeiter, 54 Kan. 277, 38 Pac. 320. Massachusetts. Com. v. Young, 9 Gray 9. Missouri. State v. Brown, 171 Mo. 477, 71 S. W. 1031. New Mexico. Territory v. Maxwell, 49 Pa. St. 478. I. 112. People v. Hopkins, 126 111 N. Y. Supp. 423. Com. v. Newcomer, State v. Snell, 9 R. Cosser, 13 Cox C. England. Reg. v. The term is used in its popular sense as meaning one who undertakes any formal appointment.54 And a person may be an agent, and within the statute, though he may be paid by commissions out of the moneys received by him for his employer; 55 though he may receive no compensation at all; 56 and though he may be employed, not for any particular length of time, but for a particular occasion only.57 to transact some business or to manage some affair for another by authority and on account of the latter, and to render an account of it. Pullam v. State, 78 Ala. 31, 56 Am. Rep. 21; Hall v. State, 21 Ariz. 261, 187 Pac. 577; Tipton v. State, 53 Fla. 69, 43 So. 684. That the contract of agency is entered into by the defendant under an assumed name is immaterial. State v. Gross, alias Kimble, 91 Ohio St. 161, 110 N. E. 466. The secretary of a local lodge of Odd Fellows cannot be convicted of embezzling money as agent of the grand lodge, where he collected the money after the local lodge had been suspended by the grand lodge, and hence after his agency for the grand lodge had ceased. Grice v. State, 88 Tex. Cr. 106, 225 S. W. 172. 54 As where a person acts as agent for another and receives compensation for services rendered as such. State v. Heath, 8 Mo. App. 99, rev'd 70 Mo. 565. A person who assumes to act as agent for another, and in that assumed capacity receives from him property to be delivered to a third person, and fraudulently appropriates the same to his own use, is guilty of embezzlement. People v. Pyle, Cal. App. -, 185 Pac. 1019. And see § 538, infra. 55 Massachusetts. Cơm. v. Smith, 129 Mass. 104; Com. v. Foster, 107 Mass. 221. Minnesota. State v. Phillips, 105 Minn. 375, 117 N. W. 508. Nebraska. Morehouse v. State, 35 Neb. 643, 53 N. W. 571. Ohio. Campbell v. State, 35 Ohio St. 70. Pennsylvania. Com. v. Shober, 3 Pa. Super. Ct. 554. The fact that he is to be so paid has been held to be a circumstance of great weight tending to prove that the relation is one of agency. Foster v. State, 2 Pennew. (Del.) 111, 43 Atl. 265, aff'g 1 Pennew. 289, 40 Atl. 939. He must not have the right to mingle the money received for his principal with his own funds so as to make the relation one of debtor and creditor. See § 534, infra. 56 Arizona. Hall v. State, 21 Ariz. 261, 187 Pac. 577. Iowa. State v. Brooks, 85 Iowa 366. New Mexico. well, 2 N. M. 250. West Virginia. State v. Fraley, 71 W. Va. 100, 76 S. E. 134, 42 L. R. A. (N. S.) 498. Territory v. Max And see Goldsberry v. State, 92 Neb. 211, 137 N. W. 1116. 57 Alabama. Eggleston v. State, 129 Ala. 80, 30 So. 582, 87 Am. St. Rep. 17; Pullam v. State, 78 Ala. 31, 56 Am. Rep. 21. Arizona. Hall v. State, 21 Ariz. 261, 187 Pac. 577. Delaware. State v. Acéto, 5 Boyce (28 Del.) 597, 96 Atl. 206; Foster v. State, 2 Pennew. (18 Del.) 111, 43 Atl. 265, aff'g 1 Pennew. 289, 40 Atl. 929. Nebraska. See Goldsberry v. State, 92 Neb. 211, 137 N. W. 1116. The term "agent" has been held to include bank officers, 58 attorneys at law,59 an errand boy,60 the driver of a delivery truck,61 a pledgor of notes who retains them for collection for the benefit of the pledgee,62 an agent of the state,63 and agents de facto.64 And one of three trustees of a school district may be the agent and employee of the other two in the expenditure of the funds of the district.65 A receiver is not an agent.66 And partners are not agents of each other within the meaning of such a statute.67 A mere servant or employee is not within a statute punishing embezzlement by agents.6 And it has been held that a mere naked bailee is not an agent within the meaning of some of the statutes,69 although other statutes have been held broad enough to include such bailees.70 Contra, Johnson v. State, 9 Baxt. (68 Tenn.) 279. 58 State v. Kortgaard, 62 Minn. 7, 64 N. W. 51. 59 Dick v. State, 107 Md. 11, 68 Atl. 286, 576. 60 A person who is given money by the owner to be delivered to a third person is an agent. Hall v. State, 21 Ariz. 261, 187 Pac. 577. A person to whom a draft is intrusted for the purpose of getting it cashed, and who cashes it, holds the money as the owner's agent. Goldsberry v. State, 92 Neb. 211, 137 N. W. 1116. Contra, Johnson v. State, 9 Baxt. (68 Tenn.) 279. 61 Canellos v. State, 17 Ala. App. 278, 84 So. 396. 62 Jackson v. State, 2 Ala. App. 226, 57 So. 110. 63 State v. Bancroft, 22 Kan. 170. 68 64 Tipton v. State, 53 Fla. 69, 43 So. 684; People v. Hawkins, 106 Mich. 479, 64 N. W. 736. See also § 538, infra. 65 Adams v. State, 75 Tex. Cr. 516, 172 S. W. 219. 66 State v. Hubbard, 58 Kan. 797, 51 Pac. 290, 39 L. R. A. 860. 67 State v. Butman, 61 N. H. 511, 60 Am. Rep. 332; and see Kent v. State, 143 Ark. 439, 220 S. W. 814; State v. Snell, 9 R. I. 112. 68 Mehaffey v. State, 16 Ala. App. 99, 75 So. 647. 69 State v. Castleton, 255 Mo. 201, 164 S. W. 492; State v. Meyers, 68 Mo. 266. It was so held in Alabama under a former statute. Pullam v. State, 78 Ala. 31, 56 Am. Rep. 21. But it has been doubted whether this is true under the present Code. Barr v. State, 10 Ala. App. 111, 65 So. 197. And see Eggleston v. State, 129 Ala. 80, 30 So. 582, 87 Am. St. Rep. 17, holding that a person to whom money is given to change is an agent. 70 One to whom the owner of money intrusts it to keep for him. Wynegar v. State, 157 Ind. 577, 62 N. E. 38. |