bezzle" as used in a statute describing what must be done to constitute the offense implies a conversion.1 Statutes in some states, however, provide for the punishment of fiduciaries who secrete, withhold or make way with money or property with intent to embezzle or convert it.2 § 540. What constitutes conversion or embezzlement-In general. To constitute a conversion, so as to make out a case of embezzlement, the owner must be deprived of his money or property by an adverse using or holding, and the defendant, therefore, must have 3 An agent who checks out funds of his principal for his own purposes is not guilty of embezzlement if before he does so he holds money or checks, or has deposited these to the credit of his principal, in amounts equal to those so drawn, since in such case there is no conversion. State V. Schumacher, 162 Iowa 231, 143 N. W. 1110. 1 Schell v. United States, 261 Fed. 593; Wall v. State, 2 Ala. App. 157, 56 So. 57; State v. Dudenhefer, 122 La. 288, 47 So. 614; State v. Pellerin, 118 La. 547, 43 So. 159; State v. Wolff, 34 La. Ann. 1153; State v. Palmer, 32 La. Ann. 565. 2 See the statutes of the various states and the following cases: Alabama. Knight v. State, 152 Ala. 56, 44 So. 585; Penny v. State, 88 Ala. 105, 7 So. 50. Florida. Rast v. State, 79 Fla. 772, 84 So. 683; Middleton v. State, 74 Fla. 234, 76 So. 785. Idaho. State v. Sage, 22 Idaho 489, 126 Pac. 403, Ann. Cas. 1914 B 251. Maine. State v. Cates, 99 Me. 68, 58 Atl. 238. Missouri. State v. Stevens, 281 Mo. 639, 220 S. W. 844; State v. Burgess, 268 Mo. 407, 188 S. W. 135. 3 State v. Jones, 25 Idaho 587, 138 Pac. 1116; Com. v. Este, 140 Mass. 279; 2 N. E. 769; Nelson v. State, 86 Neb. 856, 126 N. W. 518; State v. Hill, 47 Neb. 456, 66 N. W. 541; McAleer v. State, 46 Neb. 116, 64 N. W. 358; Chaplin v. Lee, 18 Neb. 440, 25 N. W. 609; Dickey v. State, 65 Tex. Cr. 374, 144 S. W. 271. "There must be shown a fraudulent conversion which amounts to depriving the owner of dominion over his property, with the felonious intent so to deprive such owner thereof." State v. Britt, 278 Mo. 510, 213 S. W. 425. The defendant must deprive the owner of the property by destroying or alienating his title to it. Higbee v. State, 74 Neb. 331, 104 N. W. 748. An officer of a company does not commit embezzlement by taking its money out of a bank and putting it in a safe deposit box which he has hired for the company, in order to prevent its loss in time of panic. People v. Barnes, 158 N. Y. App. Div. 712, 143 N. Y. Supp. 885, appeal dismissed, 210 N. Y. 612, 104 N. E. 1136. An attorney who collects money for his client and is entitled to a fee for so doing is not subject to prosecution for embezzlement where the money is paid over to the client, and the client has given a general receipt and release before any demand or complaint has been made. People v. Ehle, 273 II. 424, 112 N. E. 970. exercised some dominion over it inconsistent with the owner's rights.1 A mere unexecuted intent to convert or embezzle is not embezzlement.5 Nor is the mere secreting of property with intent to convert it, except where the statute so provides. A distinct act of taking is not necessary, however. A person may commit the offense by merely keeping the money or property intrusted to him himself with the intention of permanently depriving the owner of it, and hence it is not necessary to show what has become of it, or that any disposition has been made of it.10 But generally proof of some physical act or omission is necessary in order to sustain a conviction, since the necessary adverse holding cannot otherwise be shown.11 4 Knight v. State, 152 Ala. 56, 44 So. 585; Penny v. State, 88 Ald. 105, 7 So. 50; People v. Wyman, 102 Cal. 552, 36 Pac. 932; Fitzgerald v. State, 50 N. J. L. 475, 14 Atl. 746. In order to convict an express agent for embezzling money orders it is not necessary to show that the company has paid the orders, but it is sufficient if it is legally obligated to do so. Kossakowski v. People, 177 Ill. 563, 53 N. E. 115. 5 Nelson v. State, 86 Neb. 856, 126 N. W. 518; People v. Fitzgerald, 195 N. Y. 153, 88 N. E. 27, aff'g 130 App. Div. 124, 114 N. Y. Supp. 476. 6 McAleer v. State, 46 Neb. 116, 64 N. W. 358. 7 State v. Sage, 22 Idaho 489, 126 Pac. 403, Ann. Cas. 1914 B 251. 8 Territory v. Monroe, 10 Ariz. 53, 85 Pac. 651; State v. Sage, 22 Idaho 489, 126 Pac. 403, Ann. Cas. 1914 B 251. 9 Knight v. State, 152 Ala. 56, 44 So. 585; Woodward v. United States, 38 App. Cas. (D. C.) 323; Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551; People v. Birnbaum, 114 N. Y. App. Div. 480, 100 N. Y. Supp. 160. The crime may be committed by a fraudulent failure to account for funds as well as by their physical confiscation. State v. Bickford, 28 N. D. 36, 147 N. W. 407, Ann. Cas. 1916 D 140. As where an attorney, who has deposited money collected for a client to his own credit, retains a part of it with intent to defraud her of it, and falsely represents that he has fully accounted for all that he has received. People v. Birnbaum, 114 N. Y. App. Div. 480, 100 N. Y. Supp. 160. "The crime of embezzlement by a public officer does not consist in failing to turn over all moneys due to the state at the time of the relinquishment of the office, but in having fraudulently converted money or securities while in that office." State v. Bickford, 28 N. D. 36, 147 N. W. 407, Ann. Cas. 1916 D 140. 10 Knight v. State, 152 Ala. 56, 44 So. 585; People v. Royce, 106 Cal. 173, 37 Pac. 630, 39 Pac. 524; Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551; Campbell v. State, 35 Ohio St. 70. 11 The conversion may consist in a mere act of the mind whereby the character of the possession is changed and the holding becomes adverse to the owner. The defendant commits embezzlement when he mentally begins to hold the money adversely though it remains in his possession, though he does not spend it or otherwise deal with it, but he cannot be The The means used to effect the conversion are immaterial.12 exercise of any act of dominion over the money or property by the defendant, with the intent, at the time, of making it his own, is sufficient.13 So an agent, officer, bailee or other fiduciary may commit the offense by depositing money intrusted to him to his individual credit,14 or by pledging for his own benefit property intrusted to him when he has no authority to do so,15 or by appropriating or refusing convicted until by some physical act or omission he has furnished evidence of such adverse holding. Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551. "Generally, there is a conversion only when there is a refusal, or at least a failure, to pay, or there are circumstances from which such refusal or failure can be implied." People v. Ehle, 273 Ill. 424, 112 N. E. 970. There must be at least some act indicating an intent to segregate the property from that held by the defendant in a fiduciary capacity, and to hold it for himself, or to deprive the owner of it, or to convert it to his own use. Knight v. State, 152 Ala. 56, 44 So. 585. 12 Reeves v. State, 95 Ala. 31, 11 So. 158; State v. Kortgaard, 62 Minn. 7, 64 N. W. 51; State v. Ezzard, 40 S. C. 312, 18 S. E. 1025; Leonard v. State, 7 Tex. App. 417. Giving orders for grain in a warehouse. Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121. 13 Woodward v. United States, 38 App. Cas. (D. C.) 323; State v. McWilliams, 267 Mo. 437, 184 S. W. 96; State v. Ross, 55 Ore. 450, 104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601, 613. "An embezzlement is accomplished by any act which shows an unmistakable intention on the part of the party to convert the property to his own use and deprive the owner thereof." State v. Collins, 4 N. D. 433, 61 N. W. 467. Where a servant, sent on an errand by his master, is intrusted with a horse to ride, but goes to a place other than the one to which he was sent and there endeavors to sell the horse, there is a sufficient conversion, although the sale is not consummated. Wilson v. State, 47 Tex. Cr. 159, 82 S. W. 651. Securing funds for a specific purpose by drawing a draft through a bank and securing credit for the amount thereof, and then fraudulently appropriating the same, is embezzlement. State v. Gillaspie, 11 Okla. Cr. 631, 150 Pac. 96. 14 Dixie Fire Ins. Co. v. Nelson, 128 Tenn. 70, 157 S. W. 416. The deposit by an officer of a corporation of its funds to his individual credit is prima facie a wrongful conversion and throws upon him the burden of showing that it was done for the benefit of the corporation. Mangham v. State, 11 Ga. App. 427, 75 S. E. 512. Where a claim was assigned to the defendant for the purpose of collection only, and he collected it and deposited the money to his own account, and failed to deliver it when called upon to do so by his principal, and admitted that he did not have it, it was held that he was properly convicted. People v. Schroeder, Cal. App. -, 185 Pac. 507. 15 State v. Stevens, 281 Mo. 639, to return money or property delivered to him as security for the performance of a contract after the contract has been fully performed.16 And a guardian is guilty of embezzlement where he uses the funds of his ward as his own.17 A public officer may commit embezzlement by securing credit for the amount of a claim by falsely representing that he has paid it out of public funds in his hands.18 And under many of the statutes he is guilty of embezzlement if he loans such funds in violation of law,19 or uses them in his private business, or for his own private benefit.20 Under some of the statutes, however, a mere using of the money is not enough, but to constitute the offense there must be a failure on the part of the officer to account for or pay it over at the time, in the manner, and for the purpose required by law 21 It is not embezzlement for a public officer to deposit public money to the credit of a wrong public fund,22 or to pay a claim out of a wrong fund.23 Nor is a town officer who borrows money on notes of the 220 S. W. 844; Morehouse v. State, 35 Neb. 643, 53 N. W. 571; People v. Atwater, 229 N. Y. 303, 128 N. E. 196, rev'g 191 App. Div. 345, 181 N. Y. Supp. 742. Where a contract between the owner of bonds and a broker gave the latter the right to retain certain of the bonds on paying certain calls for money by the owner, and not before, the pledging of such bonds by the broker and the conversion of the proceeds prior to any call was held to be embezzlement. Hayes v. State, 35 Ohio Cir. Ct. 57, aff'd 83 Ohio St. 490, 94 N. E. 1107. 16 People v. Ward, 14 Cal. App. 143, 111 Pac. 265; People v. Labor, 290 Ill. 234, 124 N. E. 866; State v. Jaku bowski, 77 Wash. 78, 137 Pac. 448. 17 Edmondson v. State, 89 Neb. 797, 132 N. W. 527. 18 State v. Baumhager, 28 Minn. 226, 9 N. W. 704. 19 Russell v. State, 112 Ark. 282, 166 S. W. 540; Korth v. State, 46 Neb. 631, 65 N. W. 792; State v. Cameron, 91 Ohio St. 50, 109 N. E. 584. 20 Russell v. State, 112 Ark. 282, 166 S. W. 540; State v. Manley, 107 Mo. 364, 17 S. W. 800; Mansur v. Lentz, 201 Mo. App. 256, 211 S. W. 97. By such use he becomes ipso facto criminally responsible without demand or refusal to account. State v. Shuman, 101 Me. 158, 63 Atl. 665. 21 While he stands bound and ready to account for or pay it over when legally required, there cannot be an embezzlement. Com. v. Lewis, 11 Ky. L. Rep. 421, 12 S. W. 266. Under the New Mexico statute it is not embezzlement for an officer to use, loan, or convert public funds unless, as a result, he is not able to meet the demands of any person lawfully demanding the same. Territory v. Abeyta, 14 N. M. 56, 89 Pac. 254. 22 This is true even though his purpose is to cover up a defalcation in the latter fund. Dickey v. State, 65 Tex. Cr. 374, 144 S. W. 271. 23 In re Huston, 27 Idaho 231, 147 Pac. 1064. town and uses it in paying obligations of the town guilty of embezzlement, though he represented to the town that such payments were made from a balance in his hands, and they were a means of embezzling other money in the future, or covered up his embezzlement of other money in the past.2 24 Directors or officers of a bank or other corporation may commit. embezzlement by fraudulently converting its funds to their own. use under the form of loans or overdrafts,25 or dividends, 26 or under the guise of salaries voted to themselves pursuant to a conspiracy as a cover for their defalcations,27 or by using corporate funds to pay their individual debts.28 And by statute in some states a banker or officer of a bank who receives a deposit while the bank is insolvent is deemed guilty of embezzlement if the deposit is thereby lost to the depositor.29 An officer of a bank who takes its funds and appropriates them to his own use is none the less guilty of conversion because he deposits in place of them securities which he knows to be worthless.30 § 541. Failure or refusal to account or pay over. It is not embezzlement merely to fail to return property borrowed at the precise time agreed upon,31 or to use property in one's possession for a longer period than authorized.32 Nor as a rule is the mere failure of an agent, servant or bailee to pay over or account for money or property intrusted to him,33 or a failure or refusal to pay or deliver the same 24 Com. v. Este, 140 Mass. 279, 2 N. E. 769. 25 McKnight v. United States, 115 Fed. 972; Reeves v. State, 95 Ala. 31, 11 So. 158; State v. Kortgaard, 62 Minn. 7, 64 N. W. 51. 26 Taylor v. Com., 119 Ky. 731, 75 S. W. 244. 27 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. 28 State v. Newman, 74 N. H. 10, 64 Atl. 761. 29 Meadowcroft v. People, 163 Ill. 56, 45 N. E. 991, 35 L. R. A. 176, 54 Am. St. Rep. 447. 30 As where he gives the bank his own promissory note when he knows that he is insolvent. People v. Leonard, 106 Cal. 302, 39 Pac. 617. |