R. v. Lambert. R. v. Hall. No objection However, in the following case (m), Erle, C. J., allowed a prisoner to be convicted without such specific proof. L. was indicted for embezzling the sum of 2701., part of a sum of 2,7831. 78. 9d., which he had received on account of the Receiver-General of her Majesty's Customs. L. was assistant teller to the Customs. It was his duty to receive money from merchants and others who had to pay money to the Receiver-General and enter such receipts in a cash-book. He had also, in the course of his employment, to make certain payments and enter them on the other side of the same book, and balance the amounts each day, paying over so much of the surplus as was in notes to a superior officer and retaining the cash, which was carried to the next day's account. When he paid over the notes it was his duty to give to the same officer a memorandum of the receipts and disbursements of the day. One day he was ordered, about eleven o'clock, to make up his accounts, but continued to receive money until two, when he left the office and did not return. His desk and books were then examined, and in the latter were found, entered as received, several sums, amounting to 2,783l. 7s. 9d. ; and on the other side payments, amounting to 130l. 138. 3d. The balance found, which ought to have been 2,652l. 148. 6d., was 270l. short. The whole of the money was received between ten and two o'clock on that day. On the part of the prisoner it was contended, that he could not be convicted of embezzlement as there was no evidence showing the appropriation of any particular sum received from any one person. But Erle, C. J., said, "I think the offence is sufficiently made out within the meaning of the statute (n), if the jury are satisfied that the prisoner received in the aggregate the amount with which he appears to have charged himself, and that he absconded, or refused, when called upon, to account, leaving a portion of the gross sam deficient. There would be a constant failure of justice if I were to decide otherwise, since it is impossible, in cases like the present, where a number of different amounts of money have been received, to specify which sum or sums, or the parts of which sum or sums, have been embezzled." Where a clerk received six bank-notes, on his master's account, in payment of a particular debt, and made an entry in his master's book of a smaller sum as received, but afterwards paid over to his master the identical notes which he had received, applying them, in his account, to another debt received by him for his master, he was held to have been rightly convicted of embezzlement in respect of these six notes (o). It is, however, no objection to an indictment for embezzle (m) R. v. Lambert, 2 Cox, C. C. 309; Centr. C. C. Aug. 1847; and see R. v. Moah, Dears. C. C. 626, post. (n) It does not appear from the report whether L. was indicted under 7 & 8 Geo. 4, or 2 Will. 4, c. 4; but most probably the latter. (0) R. v. Hall, 3 Stark. 67; S. C. Russ. & Ry. 463. Such a case as this is not very likely to occur again since 7 & 8 Geo. 4, c. 29, s. 48. ment that the master had no right to the money; if it be received that master by the clerk or servant by virtue of his employment and on had no right account of his master, it will be sufficient (p). to the money, if received And it has been held to be embezzlement in the secretary to a on his ac count. "enrolled. society fraudulently to withhold money received from a member Embezzleto be paid over to the trustees; and that he might be stated to ment by be the clerk and servant of the trustees, and the money might secretary of be stated to be their property, though the society was not enrolled, society not and though the money ought, in the ordinary course, to have R. v. Hall. been received by a steward (q). However, in another case, where a society, in consequence of administering to its members Clerk of illegal society an unlawful oath, was an unlawful combination and confede- cannot be racy under the stats. 39 Geo. 3, c. 79 & 57 Geo. 3, c. 19, convicted of s. 25, it was held that a person charged with embezzlement as ment. clerk and servant to such society could not be convicted (r). R. v. Hunt. The receipt of the money by the prisoner may now be proved Unstamped by an unstamped receipt, although the amount is above 40s. (8). receipt. embezzle ceivers. R. v. Framp A person who receives goods, &c., knowing them to have Indictment been embezzled, may be convicted on a common indictment against recharging him as a receiver of stolen goods. Therefore, where W. and T. were charged on an indictment, first, with embezzling ton. certain oats, secondly, with being servants of A. B. and stealing his oats, and there was a fourth count charging F. with receiving certain oats feloniously stolen, knowing them to have been feloniously stolen; and the jury found W. guilty on the first count of embezzlement, acquitted T. and found F. guilty on the fourth count of receiving, the conviction was held to be good; and Pollock, C. B., said, "It seems very likely that the statute provided that embezzlement should be deemed stealing for the express purpose of providing for the case of receivers, there being no statute in terms applicable to receiving goods knowing them to have been embezzled" (t). INDICTMENT (u). ment may be dictment. By 7 & 8 Geo. 4, c. 29, s. 48, for preventing the difficulties Distinct acts that had been experienced in the prosecution of the last-men- of embezzletioned offenders, it is enacted that it shall be lawful to charge charged in in the indictment and proceed against the offender for any the same innumber of distinct acts of embezzlement, not exceeding three, which may have been committed by him against the same master within the space of six calendar months from the first to the last of such acts (x); and in every such indictment, except As to allewhere the offence shall relate to any chattel, it shall be suffi- gation and cient to allege the embezzlement to be of money, without speci- property em (p) R. v. Beacall, 1 C. & P. 312, 454. (q) R. v. Hall, 1 Moo. C. C. 474. (r) R. v. Hunt, 8 C. & P. 642. (s) 17 & 18 Vict. c. 83, s. 27. Formerly it could not: R. v. Hall, 3 Stark. 67; see R. v. Wortley, 21 L. J., M. C. 44; C. 2 Den. C. C. 333. S. (t) R. v. Frampton, 27 L. J., M. C. 229; S. C. Dears. & B. 585. (u) The indictment must show a larceny, R. v. M'Gregor, 3 B. & P. 106; R. v. Johnson, 3 M. & S. 540; see R. v. Moah, Dears. C. C. 626. (x) And see 14 & 15 Vict. c. 100, s. 16, ante, p. 295. P proof of the bezzled. Object of that act. fying any particular coin or valuable security, and such allegation, so far as regards the description of the property, shall be sustained if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved, or if he shall be proved to have embezzled any piece of coin or valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned accordingly. This provision was intended to remove considerable difficulties which formerly beset a prosecutor, and often prevented a prosecution under the repealed statute (y). It was found, however, on the other hand, that it frequently caused great hardships to prisoners, who, from the general mode in which indictments are framed under it, could not obtain any satisfactory information as to the specific charges made against them (z). Particulars. To remedy this evil, it has become the practice for judges, on motion supported by affidavit (a), to grant an order for particulars, which ought at least to contain the names of the persons from whom the sums of money are alleged to have been received (b). Prosecutor confined to one sum where gross And it has been held (c), that if a servant be indicted under this act of Geo. 4, for embezzlement, and the indictment contain only one count, charging the receipt of a gross sum on a sum charged particular day, if it turn out that the money was received in different sums on different days, the prosecutor must make his election and confine himself to one sum and one day. and several sums proved. Three counts advisable. R. v. Purchase. In an indictment under this section it is the safest course to have three separate counts, each of the two last of which should aver that the money was not only received, but embezzled within six months from the day mentioned in the first count. Where an indictment contained only one count, which charged that within six calendar months the prisoner received three sums, laying a day to the receipt of each, and that "on the several days aforesaid" the prisoner embezzled these sums, it was held bad, because it did not show that the sums were embezzled R. v. Noake. within six months of each other (d). And where an indictment contained three counts, the first of which was in the usual form, but the second stated "that within six calendar months from the day mentioned in the first count of this indictment," to wit, (y) 2 Russ. on Crimes, 168; see R. v. Moah, Dears. C. C. 631. (z) It is conceived that this observation applies with twofold force since 14 & 15 Vict. c. 100, s. 13, post. (a) The affidavit should state that the prisoner does not know the charges intended to be brought against him, that it is necessary for his defence to be furnished with the particular charges, and that he has applied to the prosecutor for a particular and been refused, see 2 Russ. on Crimes, 189, note. (b) R. v. Hodgson, 3 C. & P. 422; R. v. Bootyman, 5 C. & P. 300. (c) R. v. Williams, 6 C. & P. 626. (d) R. v. Purchase, Carr. & M. 617. &c. at &c. the said N. being then and there employed, &c. did by virtue of his employment, &c. receive, &c. and the said lastmentioned money, to wit, on the day and year last aforesaid, at &c. feloniously did embezzle, &c., and the third was in the same form, Cresswell, J., held the second and third counts bad, and confined the prosecutor to evidence on the first count only (e). c. 100, s. 13. dicted for clerk, &c., turn out to verså. By the 14 & 15 Vict. c. 100, it is enacted, sect. 13, That if 14 & 15 Vict. upon the trial of any person indicted for embezzlement as a clerk, servant or other person employed for the purpose or in Persons inthe capacity of a clerk or servant, it shall be proved that he embezzletook the property in question in any such manner as to amount ment as a in law to larceny, he shall not by reason thereof be entitled to not to be be acquitted, but the jury shall be at liberty to return as their acquitted if verdict that such person is not guilty of embezzlement but is the offence guilty of simple larceny, or of larceny as a clerk, servant or be larceny, person employed for the purpose, or in the capacity of a clerk and vice or servant, as the case may be, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such larceny; and if upon the trial of any person indicted for larceny it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of larceny, but is guilty of embezzlement, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such embezzlement, and no person so tried for embezzlement or larceny as aforesaid shall be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts. of masters in Other Acts of Parliament have also at various times been Special acts passed for the protection of masters in trade from frauds and for protection embezzlements of property by their servants. In this place, however, it is unnecessary to do more than refer to those acts, most of which will be found in the Appendix. some trades. master may When a servant who has robbed his master has been prose- After trial cuted and tried for the offence, the master may, if he thinks for crime, proper, sue him for the damages he has sustained thereby. But sue servant; he cannot proceed by action until after the trial of the servant, as public policy requires that offenders against the law should be brought to justice, and for that reason a man is not permitted to abstain from prosecuting an offender by receiving back stolen property or any equivalent or composition for a felony without suit, and of course therefore he cannot be allowed to maintain a suit for that purpose. It would not prejudice the civil remedy that the offender was acquitted of the crime, if he was tried (f). And it would seem that if the servant die or after his (e) R. v. Noake, 2 Carr. & K. 620. (f) Crosby v. Leng, 12 East, 409; Stone v. Marsh, 6 B. & C. 551; Marsh v. Keating, 1 B. N. death his executors. Statute of Teed v. Security given on agreement not to prosecute set aside. Mere threat before conviction the master might maintain a suit in equity against the servant's executors (g). And where a barrister filed a bill to recover out of the assets of a deceased clerk an amount of fees which the clerk had received and embezzled in his lifetime, it was held in equity(h), that the Statute of Limitations could not be set up as a defence; for, said Stuart, Vice-Chancellor, "the clerk was clearly a receiver and agent by whom money was received in confidence, and therefore under the same implied contract as that supposed to arise out of the duty of trustees, assignees and executors, of faithfully, diligently and accurately accounting when called upon to his principal (¿). That being so the money must be considered as money of the employer in the hands of his confidential agent. There had therefore been all along possession by the agent, but no adverse possession, and therefore the bar of the statute, which was founded on adverse possession, did not apply." If a warrant of attorney is given to his master by a servant charged with embezzlement upon a distinct agreement by the master not to prosecute the charge, the agreement is illegal, and the court would upon a summary application set aside the warrant of attorney (k). But where a warrant of attorney was not sufficient. obtained from a servant upon a threat by his master that if he did not go to his attorney and give satisfactory security for an amount which he ought to have accounted for, he would prosecute him for unlawfully making use of his money, the Court of Common Pleas refused to set it aside as there did not appear to have been any agreement not to prosecute. "Such an agreement," said Coltman, J., " is not to be inferred from hasty expressions used by a man when seeking to obtain security for a just debt” (1). Ward v. 50 Geo. 3, c. 59, s. 2. ing in false statements of money entrusted OFFENCES COMMITTED BY PERSONS EMPLOYED By stat. 50 Geo. 3, c. 59, s. 2, it is enacted, that if any officer, collector or receiver, entrusted with the receipt, custody Officers giv- or management of any part of the public revenues, shall knowingly furnish false statements or returns of the sums of money collected by him, or intrusted to his care, or of the balances of money in his hands, or under his control, such officer, collector misdemean- or receiver so offending, and being thereof convicted, shall be adjudged guilty of a misdemeanor, and shall be adjudged to suffer the punishment of fine and imprisonment, at the discretion of the court, and be rendered for ever incapable of holding or enjoying any office under the Crown. to their care, or, &c. 2 Will. 4, c. 4, s. 1. And by stat. 2 Will. 4, c. 4, after repealing the first section (g) Wickham v. Gattrell, 23 L. J., Ch. 783. (h) Teed v. Beere, 28 L. J., Ch. 782. (i) The Earl of Hardwicke v. Vernon, 14 Ves. 504; Dinwiddie v. Bailey, 6 Ves. 136. (k) Ex parte Critchley, 3 D. & L. 527; and see Collins v. Blantern, 1 Smith's L. C. 155; Keir v. Leeman, 6 Q. B. 308; 9 Q. B. 371. (1) Ward v. Lloyd, 6 M. & G. 785. |