Oct. 19, 1864, 546. Breaking and constitutes. § 1762. [551.] Every unlawful entry of a dwellinghouse, with intent to commit a crime therein, shall be entering, what deemed a breaking and entering of such dwelling-house within the meaning of sections 1758 [547] and 1759 [548], and every unlawful entry of any building, booth, tent, railway car, vessel, boat, or other structure or erection mentioned in section 1760 [549], with intent to steal or commit any felony therein, shall be deemed a breaking and entering of the same within the meaning of such section 1760 [549]. Dec. 19, 1865, $1, p. 413. Larceny. § 1763. [552.] If any person shall steal any goods or chattels, or any government note or bank note, promissory note, or bill of exchange, bond, or other thing in action, or any book of accounts, order, or certificate, concerning money or goods, due or to become due, or to be delivered, or any deed or writing containing a conveyance of land, or any interest therein, or any bill of sale, or writing containing a conveyance of goods or chattels, or any interest therein, or any other valuable contract in force, or any receipt, release, or defeasance, or any writ, process, or public record, the property of another, such person shall be deemed guilty of larceny, and upon conviction thereof, if the property stolen shall exceed in value thirty-five dollars, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years; but if the property stolen shall not exceed the value of thirty-five dollars, such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than twenty-five nor more than one hundred dollars. Larceny. The intention of these Asportation and intent to steal are sists in the felonious and fraudulent taking of property with intent to deprive the owner thereof: State v. Lee Yan, 10 Or. 365; even though the defendant did not intend to convert the property to his own use: People v. Juarez, 28 Cal. 380. Money collected by a sheriff for taxes is the property of the county in the hands of the sheriff, and he may be guilty of larceny by converting the same to his larceny under this section to allege Dec. 19, 1865, The offense of larceny committed Possession of stolen property as evidence: See note to § 1364 [165], ante, p. 799. $518. Larceny in or public 10 Or. 367. § 1764. [553.] If any person shall commit the crime oct. 19, 186-4, of larceny in any dwelling-house, banking-house, office, store, shop, or warehouse, or in any ship, steamboat, or house, boat, other vessel, or shall break and enter in the night or building. day time any church, court-house, meeting-house, townhouse, college, academy, or other building erected or used for public uses, and commit the crime of larceny therein, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less. than one nor more than seven years. $549. Larceny, by the person. § 1765. [554.] If any person shall commit the crime Oct. 19, 1864, of larceny by stealing from the person of another, such person shall, upon conviction thereof, be punished by stealing from imprisonment in the penitentiary not less than one nor more than five years, or by imprisonment in the county 20 Or. 239. jail not less than six months nor more than one year, or by fine not less than one hundred nor more than five hundred dollars. stealing horse, punishment § 1766. [555.] If any person shall commit the crime Feb. 25, 1889, § 1. of larceny by stealing any horse, gelding, mare, mule, Larceny, by ass, jenny, or foal, bull, steer, cow, calf, hog, or sheep, mule, ass, etc., such person, upon conviction thereof, shall be punished of. by imprisonment in the penitentiary not less than one st. 1891, p. 39. nor more than ten years, or by imprisonment in the Feb. 25, 1889, §1. county jail not less than three months nor more than one year, or by fine of not less than fifty nor more than one thousand dollars. Oct. 16, 1878, 01. p. 9. Driving domestic animals from their range. Oct. 16, 1878, $2. p. 9. Penalty for violating the preceding section. Oct. 19, 1864, $551. Larceny, by § 1767. It shall be unlawful for any person not the owner or owners to take or drive from the range or place where the same may be lawfully grazing, pasturing, or ranging, any horse, gelding, mare, foal, mule, ass, jenny, or bull, cow, heifer, steer, calf, sheep, hog, or any other description of domestic animal or animals, from where the same may be lawfully grazing or in the habit of ranging, or where the same may have been herded or placed by the owner or owners thereof, for a distance of more than ten miles from such place where the same may have been so located or placed by the owner or owners thereof, or where the same may be in the habit of grazing or ranging. § 1768. Every person who shall take, drive, or cause to be taken or driven, or who shall assist in driving or taking away from the range any of the domestic animals enumerated in section 1767, shall, upon conviction thereof, be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be fined in any sum not less. than fifty dollars nor more than four hundred dollars, and shall be liable to the owner or owners of such animal or animals for all damages sustained by reason of such driving or taking away of such domestic animal. "Section 1" referred to in this section is the last preceding section, which is the first section of the act of October 16, 1878, entitled "An act to protect the stock-growing interests of the state of Oregon." Section 3 provides the disposition to be made of fines under the act, and appears in the appropriate title. Section 4 simply provides that prosecutions under this act may be had "before any of the courts having competent jurisdiction," - etc., which it may be assumed is the case irrespective of that section. § 1769. [556.] If any person shall willfully and knowingly make, alter, or deface any artificial ear-mark or altering marks brand upon any horse, mare, gelding, foal, mule, ass, upon animals. jenny, sheep, goat, swine, bull, cow, steer, or heifer, the property of another, with intent thereby to convert the or brands $551. same to his own use, such person shall be deemed guilty Oct. 19, 1864 $552. by servant. § 1770. [557.] If any officer, agent, clerk, employee, Oct. 19, 1864, or servant of any private person or persons, copartner- Larceny by ship, or incorporation, shall embezzle or fraudulently embezzlement convert to his own use, or shall take or secrete, with intent to embezzle or fraudulently convert to his own use, any money, property, or thing of another which may be the subject of larceny, and which shall have come into his possession, or be under his care, by virtue of such employment, such officer, agent, clerk, employee, or servant shall be deemed guilty of larceny, and upon conviction thereof shall be punished accordingly. Embezzlement. - Embezzlement is the proper name for the crime where an agent fraudulently converts the money of his employer: State v. Sweet, 2 Or. 127. The word "embezzlement" describes the offense charged, and it was not the intention of the legislature to abolish the name of embezzlement from the catalogue of crimes, but only to say that the crime of embezzlement should be equal in degree to larceny, and have the same penalty attached to its commission: Îd. In order to convict one as agent with having embezzled the property of his principal, four distinct propositions of fact are to be made out: 1. That he was such agent; 2. That he received the property of his principal; 3. That he received it in the course of his employment; and 4. That he converted it to his own use, with intent to steal: Ex parte Hedley, 31 Cal. 108; Griffin v. State, 4 Tex. App. 390. Money received by a clerk from collections on bills, intrusted to him to collect by his employer, is money in trusted to him: Ex parte Ricord, 11 Nev. 287. The disposal of collateral security by the holder before the debt is due, which it secures, has been held not to be embezzlement: Commonwealth v. Butterick, 100 Mass. 1. Where one places his money in the Mere The chief distinction between larceny and embezzlement is that in the case of embezzlement the guilty party has possession of the property at the time of the commission of the offense, while in the case of larceny the tak ing of the property constitutes one of the elements of the offense: People v. Belden, 37 Cal. 51; People v. Abbott, 53 Id. 284; People v. Jersey, 18 Id. 337; People v. Smith, 23 Id. 280; People v. Bogart, 36 Id. 245; People v. Dalton, 15 Wend. 581. Laws of 1882, § 1771. [558.] If any bailee, with or without hire, Oct. 26, 1882, § 1 shall embezzle, or wrongfully convert to his own use, or p. 44. Laws of 1882, P. 44. bailee. Oct. 26, 1882.1. shall secrete, with intent to convert to his own use, or shall fail, neglect, or refuse to deliver, keep, or account for, according to the nature of his trust, any money or property of another delivered or intrusted to his care or control, and which may be the subject of larceny, such bailee, upon conviction thereof, shall be deemed guilty of larceny, and punished accordingly; and if any such bailee shall receive grain of any kind from different bailors, and mix the same and store it together in bulk, in such case, in an indictment charging such bailee so mixing and storing grain with committing, with reference to said grain, the crime defined and made penal in this section, it shall not be necessary to charge in said indictment or prove on the trial that the ownership of said grain is in more than one of said bailors. And every mortgagor of personal property having possession of property mortgaged shall be deemed a bailee within the provisions of this section. Oct. 19, 1864, 554. Larceny of 8 Or. 235. § 1772. [559.] If any person shall receive any money whatever for this state, or for any county, town, or other public money. municipal or public corporation therein, or shall have in his possession any money whatever belonging to such state, county, town, or corporation, or in which such state, county, town, or corporation has an interest, and shall in any way convert to his own use any portion thereof, or shall loan, with or without interest, any portion thereof, or shall neglect or refuse to pay over any portion thereof, as by law directed and required, or when lawfully demanded so to do, such person shall be deemed guilty of larceny, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than one nor more than fifteen years, and by fine equal to twice the amount so converted, loaned, or neglected, or refused to be paid, as the case may be. Id., $555. Same subject. cannot set up § 1773. [560.] The amount of the money converted, loaned, or neglected, or refused to be paid, must be ascerclaim against tained by the verdict of the jury as near as may be, and no person in any proceeding against him under section state, etc., as a defense to action. |