in the regular course of business, and without any felonious intent, in so doing.50 It does not apply where the agency is a special one and the right of property and the possession remain in the principal.51 And of course it does not apply where the embezzlement statutes are broad enough to include agencies of this character.52 It has been said by some courts to apply in the case of money collected by attorneys for their clients.58 But other courts hold that the relation in such case is one of agency or bailment, and not that of debtor and creditor, since it is not part of the business of an attorney to use the money of his client.54 And in some states the misappropriation of money so collected is made embezzlement by statute.55

ployed to sell notes, receive the proceeds and pay over the same specifically, without any authority to mix them with his own funds. Com. v. Foster, 107 Mass. 221.

And the fact that an agent receives for the goods of his principal a check payable to his own order does not vest in him the title to the check or its avails, or create the relation of debtor and creditor between, him and his principal, so long as the fund is capable of identification. Com. V. Smith, 129 Mass. 104.

Whether a person has such authority is a question of fact for the jury. The fact that the defendant is a broker may be considered, but is not decisive as to the character of the relationship. Com. v. King, 202 Mass. 379, 88 N. E. 454.

50 Where defendant mixed $5,179.39 collected for seven persons with 13 cents which he had on deposit in the bank, and then checked out the most of it in small sums, for his own benefit, it was held that the jury were justified in finding that he deposited it with intent to defraud the owners. Com. v. Hutchins, 232 Mass. 285, 122 N. E. 275.

51 Com. v. Moore, 166 Mass. 513, 44 N. E. 612; Com. v. Libbey, 11 Metc. (52 Mass.) 64, 45 Am. Dec. 185.

As in the case of an agent who

embezzles machines which are sent to him to sell for the owner. State v. Leicham, 41 Wis. 565.

52 A statute in terms covering auctioneers, commission merchants, factors, brokers and agents includes a collection agent engaged in the general collection of claims on commission. State v. Lanyon, 83 Conn. 449, 76 Atl. 1095. And see § 526, supra.

53 See Com. v. Moore, 166 Mass. 513, 44 N. E. 612; Com. v. Libbey, 11 Metc. (52 Mass.) 64, 45 Am. Dec. 185; Campbell v. State, 35 Ohio St.

70.

54 Wallace v. State, 54 Ark. 542, 16 S. W. 571. And see § 526, supra.

An assignment of a judgment to an attorney by his client does not change their relation to that of debtor and creditor so as to prevent his conviction of embezzlement, where he collects the judgment and converts the proceeds, especially where he admits that the assignment was only intended to cover his own interest to the extent of his fee. Patterson v. United States, 39 App. Cas. (D. C.) 84.

55 An attorney converting money collected for his client is within a statute punishing embezzlement by attorneys although the relation is that of debtor and creditor because of the attorney's right to a contingent fee.

§ 535. Bankers and brokers. The ordinary relation of a banker and his customer with relation to a general deposit is that of debtor and creditor. The money becomes the property of the bank, and the banker therefore, cannot be guilty of embezzling it.56 A special deposit, on the other hand, remains the property of the depositor, and its conversion by the banker renders him guilty of embezzlement.57 And a general deposit may, by agreement, be turned into a special one within this rule.58 Statutes in some states, however, make it embezzlement for a banker or officer of a bank to receive deposits with knowledge that the bank is insolvent.59 Both general and special deposits may be embezzled by officers, agents or servants of a bank, since in neither case is the ownership in them.60 But if the deposit is a general one, the defendant should be charged with embezzling the money of the bank rather than the money of the depositor.61

Where money is deposited with a broker as margin, the relation of debtor and creditor exists, and the customer has no property in the money, and therefore there can be no embezzlement of it.62 Nor is

People v. Birnbaum, 114 N. Y. App.
Div. 480, 100 N. Y. Supp. 160.

See also Com. v. King, 202 Mass. 379, 88 N. E. 454.

In Indiana the statute makes it embezzlement for any attorney at law or person engaged in making collections for others to fraudulently refuse to pay over money, etc., received for his client or employer. State, 147 Ind. 215, 46 N. E. 528; State v. Sarlls, 135 Ind. 195, 34 N. E. 1129.

Dean v.

56 Carr v. State, 104 Ala. 43, 16 So. 155; Collins v. State, 33 Fla. 429, 15 So. 214; People v. Wadsworth, 63 Mich. 500, 30 N. W. 99; State v. Deutsch, 77 N. J. L. 292, 72 Atl. 5; Com. v. Stone, 236 Pa. 35, 84 Atl. 659; State v. Grills, 35 R. I. 70, 85 Atl. 281.

57 Carr v. State, 104 Ala. 43, 16 So. 155; Collins v. State, 33 Fla. 429, 15 So. 214; State v. Deutsch, 77 N. J. L. 292, 72 Atl. 5; State v. Grills, 35 R. I. 70, 85 Atl. 281.

58 State v. Grills, 35 R. I. 70, 85 Atl. 281.

59 Com. v. Rockafellow, 163 Pa. St. 139, 29 Atl. 757.

The term "deposits" in the Illinois statutes includes "all deposits, of every kind and character, made in a bank in the usual and ordinary course of its business, whether in the form of general, special, time or demand deposits." People v. Belt, 271 Ill. 342, 111 N. E. 93.

60 Reeves v. State, 95 Ala. 31, 11 So. 158.

61 State v. Pate, 268 Mo. 431, 188 S. W. 139; Ballew v. State, 11 Okla. Cr. 598, 149 Pac. 1070.

62 People v. Flynn, 64 N. Y. Misc. 276, 118 N. Y. Supp. 533.

Where money is deposited with a broker for margins, which, when deposited, loses its identity as the money of the depositor, and which it is proper for the broker to place in his general account in a bank or with another broker, to be used the same as he uses his other money in his business, the right of the depositor to the specific money is lost, and he cannot claim that the broker has re

a broker guilty of embezzlement where he converts stock transferred to him as collateral security for an existing indebtedness.68 Nor can he be charged with embezzling as agent money sent to him to purchase a commodity which he himself is to sell the customer.64 But a broker is guilty of embezzlement where he sells specific stock deposited with him as collateral security against loss on certain transactions, at a time when there has been no such loss,65 or where he converts money sent to him by a customer to pay for stock which the customer has ordered the broker to purchase for him outright, and which the latter represents has been so purchased,66 or money given him to be sent as margin to a firm from whom a customer directs him to purchase grain.67 And statutes sometimes specifically provide for the punishment of stock brokers who pledge or dispose of stock, bonds, or other evidences of corporate indebtedness, in their possession for safe-keeping or otherwise, and belonging to customers, without the customer's consent.68

§ 536. Receipt by virtue of office. The statutes punishing embezzlement by officers of private corporations or associations generally in terms require that the money or property shall have come into their possession by virtue of their office, and, where such is the case, an indictment cannot be sustained unless it was so received.69 The

ceived it in a fiduciary capacity. People v. Thomas, 83 N. Y. App. Div. 226, 82 N. Y. Supp. 215; People v. Goldenberg, 110 N. Y. Misc. 548, 181 N. Y. Supp. 916.

63 Under such circumstances the broker receives the stock not by virtue of his employment as agent to purchase stock previously purchased, out of which transaction the indebtedness arose, but by virtue of the debt created by such purchase. Buddeke v. State, 31 Ohio C. C. 529, aff'd 83 Ohio St. 451, 94 N. E. 1115.

64 State v. Brown, 171 Mo. 477, 71 S. W. 1031.

65 People v. Flynn, 64 N. Y. Misc. 276, 118 N. Y. Supp. 533.

66 People v. Meadows, 199 N. Y. 1, 92 N. E. 128, aff'g 136 App. Div. 226, 121 N. Y. Supp. 17.

67 State v. Cunningham, 154 Mo. 161, 55 S. W. 282.

68 People v. Atwater, 229 N. Y. 303, 128 N. E. 196, rev'g 191 N. Y. App. Div. 345, 181 N. Y. Supp. 742; People v. Goldenberg, 110 N. Y. Misc. 548, 181 N. Y. Supp. 916.

69 Alabama. Peters v. State, 12 Ala. App. 133, 67 So. 723; Gleason v. State, 6 Ala. App. 49, 60 So. 518.

California. People v. Gallagher, 100 Cal. 466, 35 Pac. 80.

Missouri. State v. Silva, 130 Mo. 440, 32 S. W. 1007.

New York. Bartow v. People, 78 N. Y. 377.

Texas. State v. Johnson, 21 Tex. 775; Loving v. State, 44 Tex. Cr. 373, 71 S. W. 277.

Thus, an officer of a corporation or association cannot be indicted for em

same is true of statutes punishing embezzlement by a public officer of money or property received by virtue of or under color of or in the execution of his office,70 or in his possession or under his control by virtue of his trust,71 or the embezzlement of public money by persons charged with the receipt, safe-keeping or disbursement of the same," or the embezzlement by a fiduciary of money or property which may have come into his hands "by virtue of his office, duty, or trust," 78 or by a receiver of money or property coming into his possession by virtue of his office.74

Some courts have held that an officer who converts money received by him ostensibly in his official capacity, but which he has no lawful authority to collect or receive, does not come within a statute of this character.75 But other courts have held to the contrary

bezzlement with respect of funds received and converted by him before he became an officer. Lee v. Com., 8 Ky. L. Rep. 53, 1 S. W. 4.

The money of a corporation is in the possession of the directors and of each of them, where they are charged with the control of its property, and their individual checks upon its funds are honored. People v. Lay, 193 Mich. 476, 160 N. W. 467. 70 Corbin v. United States, 205 Fed. 278; United States v. Allen, 150 Fed. 152; Rast v. State, 79 Fla. 772, 84 So. 683; State v. Bolin, 110 Mo. 209, 19 S. W. 650; Dickey v. State, 65 Tex. Cr. 374, 144 S. W. 271; Warswick v. State, 36 Tex. Cr. 63, 35 S. W. 386.

"By virtue or under color of his relation as an officer' means the obtaining of money or property by reason or because of such official relation. Hendee v. State, 80 Neb. 80, 113 N. W. 1050.

71 People v. Shearer, 143 Cal. 66, 76 Pac. 813.

72 Arizona. Storm v. Territory, 12 Ariz. 26, 94 Pac. 1099.

Idaho. In re Huston, 27 Idaho 231, 147 Pac. 1064.

Indiana. Sherrick v. State, 167 Ind. 345, 79 N. E. 193.

Nebraska. Moore v. State, 53 Neb. 831, 74 N. W. 319; Mills v. State, 53 Neb. 263, 73 N. W. 761.

Nevada. State v. Nevin, 19 Nev. 162, 7 Pac. 650, 3 Am. St. Rep. 873.

Ohio. State v. Pierson, 83 Ohio St. 241, 93 N. E. 967; State v. Carter, 67 Ohio St. 422, 66 N. E. 537.

Such a provision has been held not to apply to a deputy county treasurer. State v. Meyers, 56 Ohio St. 340, 47 N. E. 138.

73 A surviving partner settling up the partnership business, whose duties and liabilities are, by statute, similar to those of an executor or administrator, holds the partnership assets by virtue of his trust from the time when he files an inventory and bond required by the statute and enters upon the discharge of the duties imposed upon him by law, and they will be deemed to have come into his hands at that time. State v. Matthews, 129 Ind. 281, 28 N. E. 703.

74 Fields v. United States, 27 App. Cas. (D. C.) 433, certiorari denied 205 U. S. 292, 51 L. Ed. 807, 27 Sup. Ct. 543.

75 To warrant a conviction under a statute providing that "whoever being charged or in any manner intrusted with the collection, receipt,

view.76 It has been held by some courts that the officer is estopped to deny his authority under such circumstance, although as to this there is also a conflict of authority."7

§ 537. Receipt by virtue of employment. Where the statute punishes embezzlement by a clerk, servant, or employee of money or