Russ. & Ry. 516, in which the master had given his servant money to pay taxes which the collector had never received, was, if anything, larceny, though the remarks of the judges were applicable to embezzlement. It is clear that, as there stated, the bare non-application of money in the manner directed is not sufficient whereon to convict a person of embezzlement. For all that appeared in that case, the servant had never appropriated the money at all. The same remarks apply to the case of R. v. Hodgson, 3 C. & P. 423, 14 E. C. L., where it was admitted that the prisoner had made no false entry, and that he had charged himself in the books with all the moneys which he had received, but it was imputed to him that he had not sent the amount of three items to his employers as he ought to have done. But, on the other hand, it is clearly settled that a prisoner, by making an admission in his account that he has received the money, does not thereby necessarily free himself from the charge of embezzlement, if there be other circumstances from which the jury may infer that the money was fraudulently appropriated. R. v. Lister, Dears. & B. C. C. 118. Any doubt on this point arises from not keeping clearly in view the distinction between the offence and the evidence of it. See the next heading, and R. v. Guelder, 30 L. J., M. C. 34. Evidence may be given of other acts of embezzlement in order to show that a wilful embezzlement and not a mere mistake has been committed. See ante, p. 102.

Venue—At what time the offence is committed. There is sometimes difficulty in ascertaining the precise time when the embezzlement takes place, which is important upon the question of venue. In general there can be no evidence of the act of embezzlement until the party who has received the money refuses to account, or falsely accounts for it. Where the prisoner received the money in Shropshire, and told his master in Staffordshire that he had not received it, the question was, whether he was properly convicted for the embezzlement in the former county. On a case reserved, the conviction was held right. Lawrence, J., thought that embezzlement being the offence, there was no evidence of any offence in Shropshire, and that the prisoner was improperly indicted in that county. But the other judges were of opinion, that the indictment might be in Shropshire where the prisoner received the money, as well as in Staffordshire, where he embezzled it, by not accounting for it to his master; that the statute having made receiving money and embezzling it a larceny, made the offence a felony where the property was first taken, and that the offender might, therefore, be indicted in that or any other county into which he carried the property. R. v. Hobson, 1 East, P. C. Add. xxiv.; Russ. & Ry. 56. The doctrine, that the not accounting is the evidence of the embezzlement, was also laid down in the following

do from the principal. People v. Tomlinson, 66 Cal. 344. Under the Rhode Island statute the defendant is liable for embezzlement if money comes into his possession by virtue of his agency, even though he has used fraud to obtain it. ner, 14 R. I. 272.

State v. Tabe

case. The prisoner was indicted for embezzling money in Middlesex. It appeared that he received the money in Surrey, and returning into Middlesex, denied to his master the receipt of the money. It was objected that he ought to have been *indicted in Surrey, *474] and the point was reserved. Lord Alvanley, delivering the opinion of the judges, after referring to the last case, said, "The receipt of the money was perfectly legal, and there was no evidence that he ever came to the determination of appropriating the money until he had returned into the county of Middlesex. In cases of this sort, the nature of the thing embezzled ought not to be laid out of the question. The receipt of money is not like the receipt of an individual thing, where the receipt may be attended with circumstances which plainly indicate an intention to steal, by showing an intention in the receiver to appropriate the thing to his own use. But with respect to money, it is not necessary that the servant should deliver over to his master the identical pieces of money which he receives, if he should have lawful occasion to pass them away. In such a case as this, therefore, even if there had been evidence of the prisoner having spent the money on the other side of the Blackfriars Bridge, it would not necessarily confine the trial of the offence to the county of Surrey. But here there is no evidence of any act to bring the prisoner within the statute, until he is called upon by the master to account. When so called upon, he denied that he had ever received it. That was the first act from which the jury could with certainty say, that the prisoner intended to embezzle the money. There was no evidence of the prisoner having done any act to embezzle in the county of Surrey, nor could the offence be complete, nor the prisoner be guilty within the statute, until he refused to account to his master." R. v. Taylor, 3 Bos. & Pul. 596; 2 Leach, 974; Russ. & Ry. 63. The prisoner was a travelling salesman, whose duty it was to go to Derbyshire every Monday to sell goods and receive money for them there, and return with it to his master in Nottinghamshire every Saturday. He received two sums of money for his master in Derbyshire, but never returned to render any account of them. Two months afterwards he was met by his master in Nottinghamshire, who asked him what he had done with the money, and the prisoner said he was sorry for what he had done; he had spent it. It was held, under these circumstances, that the prisoner was rightly indicted in Nottinghamshire, there being some evidence to go to the jury of an embezzlement in that county. R. v. Murdock, 2 Den. C. C. R. 298; s. c. 21 L. J., M. C. 22. Where there was evidence of a conversion in Yorkshire, and a letter sent by the prisoner to Middlesex, in substance denying the receipt of the money, the prisoner was held to have been rightly tried in Middlesex, though he might have been tried in Yorkshire. R. v. Rogers, 3 Q. B. D. 28; 47 L. J., M. C. 11. See post, "False Pretences." It is impossible to avoid seeing that these decisions are colored with the error, that a denial of the receipt or omission to account is necessary to constitute the crime of embezzlement, and that the distinction already adverted to between the offence and the evidence of it is not

always kept in view. R. v. Davison, 7 Cox, C. C. 158, and see the judgment of Huddleston, B., dissenting from the majority of the court in R. v. Rogers, supra. It is, however, only reasonable where there is no indication of the time at which the money was appropriated, to conclude that this act took place at the same time as the first indication of it, viz., the refusal to account, or the omission to do so at the proper time.1 As to falsification of accounts, see the statute, ante, p. 462.

*Where a claim is set up, though unfounded. Upon an indictment for embezzlement, it appeared that the prosecutors [*475 were owners of a vessel, and the prisoner was in their service as the master. The vessel carried culm from Swansea to Plymouth, which, when weighed at Plymouth, weighed 215 tons, and the prisoner received payment for the freight accordingly. When he was asked for his account by the owner, he delivered a statement acknowledging the delivery of 210 tons, and the receipt of freight for so much. Being asked whether this was all that he had received, he answered that there was a difference of five tons between the weighing at Swansea and Plymouth, and that he had retained the balance for his own use, according to a recognized custom between owners and captains in the course of business. But there was no evidence of the alleged difference of weight, or of the custom. Cresswell, J., held that this did not amount to embezzlement. Embezzlement necessarily involved secrecy; the concealment, for instance, by the defendant of his having appropriated the money. If instead of his denying his appropriation, a defendant immediately owned it, alleging a right or an excuse for retaining the sum, no matter how frivolous the allegation, and although the fact itself on which the allegation rested were a mere falsification; as if, in the present case, it should turn out that there was no such difference as that asserted by the defendant between the tonnage at Swansea and at Plymouth, or that there was no such custom as that set up, it would not amount to embezzlement. R. v. Norman, Carr. & M. 501, 41 E. C. L. Perhaps this case may be explained on the ground that the claim set up, though it might be frivolous, was accepted by the master. The prisoner could then be indicted for obtaining money by false pretences.

Absconding evidence of embezzlement. Where the prisoner was sent to receive money due to her master, and on receiving it went off to Ireland, Coleridge, J., held that the circumstance of the prisoner having quitted her place and gone off to Ireland, was evidence

1 Proof that defendant received the money in the county named in the indictment is enough in the first instance in the absence of evidence from the defendant that he carried the money into another county in the course of his duty and before any unlawful conversion of it. State v. New, 22 Minn. 76.

2 On an indictment under the National Banking Act for embezzlement the accused cannot prove as a defence that his appropriation of the funds was not for his own benefit, and that it was known to and sanctioned by the President and Directors of the Bank. United States v. Taintor, 11 Blatchf. 374.

i

from which the jury might infer that she intended to embezzle the money. The prisoner was convicted. R. v. Williams, 7 C. &. P. 331, 32 E. C. L.

Particularity with which the crime must be laid and proved. Where the prisoner received several sums of money, and his accounts do not fix him with the embezzlement of any specific sum at a specific time, the crime is very difficult of proof. In R. v. Hall, Russ. & Ry. 463; 3 Stark. 671, 3 E. C. L., the prisoner received on account of his masters 187. in one-pound notes; he immediately entered in the books of his employers 121. only as received, and accounted to them only for that sum. In the course of the same day he received 104. on their account, which he paid over to them that evening with the 127. It was urged for the prisoner that this money might have included all the 187. in one-pound notes, and if so, he could not be said to have embezzled any of them. The prisoner being convicted, on a case reserved, nine of the judges held the conviction right, being of opinion that from the time of making the false entry, it was an embezzlement. Wood, B., doubted whether it could be considered an embezzlement, and Abbott, C. J., thought that the point should have been left to the jury, and that the conviction was wrong.

It was held upon the repealed statute 39 Geo. 3, c. 85, that the *indictment ought to set out specially some article of the prop

*476] erty embezzled, and that the evidence should support that

statement. Therefore, where the indictment charged that the prisoner embezzled the sum of one pound eleven shillings, and it did not appear whether the sum was paid by a one-pound note and eleven shillings in silver, or by two notes of one pound each, or by a two-pound note, and change given by the prisoner; on a case reserved, the judges were of opinion that the indictment ought to set out specifically, at least, some articles of the property embezzled, and that the evidence should support the statement, and they held the conviction wrong. R. v. Furneaux, Russ. & Ry. 335; R. v. Tyers, Id. 402. But by the repealed statute 7 & 8 Geo. 4, c. 29, s. 48, and now by the 24 & 25 Vict. c. 96, s. 71, it is sufficient to allege the embezzlement to be of money, without specifying any particular coin, or valuable security, and such allegation, so far as it regards the description of 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. But where an indictment alleged an embezzlement of money, and the evidence was that the prisoner had embezzled a cheque, but there was no evidence that he had converted it into money; it was held that the evidence did not support the indictment. Reg. v. Keena, L. R., 1 C. C. R. 113; 37 L. J., M. C. 43.

It was the duty of the prisoner, who was a banker's clerk, to receive money and to put it either into a box or a till, of each of which he kept the key, and to make entries of his receipts in a book; the balance of each evening being the first item with which he debited

himself in the book the next morning. On the morning of the day in question he had thus debited himself with 1,762l., and at the close of business on the latter day he made the balance in the "money book" 1,3097. On being called upon in the evening by one of his employers to produce his money, he threw himself upon his employers' mercy, saying he was about 900/. short. On examination it was found that the prisoner, instead of having 1,3097. had only 3457., making the actual deficiency 9647. The jury having found the prisoner guilty, upon an indictment of embezzling "money to a large amount, to wit, 500l." a majority of the judges (eight to seven), after very considerable doubts, were of opinion that there was sufficient evidence to go to the jury, of the prisoner having received certain moneys on a particular day, and for them to find he had embezzled the sum mentioned in the indictment. R. v. Grove, 7 C. & P. 635, 32 E. C. L.; 1 Moo. C. C. 447. But in a subsequent case, Alderson, B., after stating that the determination in the above case proceeded more upon the particular facts than upon the law, said, "It is not sufficient to prove at the trial a general deficiency in account. Some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen." R. v. Jones, 8 C. & P. 288, 34 E. C. L. It was the duty of a clerk to receive money for his employer, and pay wages out of it, to make entries of all moneys received and paid in a book, and to enter the weekly totals of receipts and payments in another book, upon which last book he, from time to time, paid over his balance to his employer. Having entries of weekly payments in his first book amounting to 25l. he entered them in the second as 351.; and two months after, in accounting with his employer, by these means made his balance 107. too little, *and paid it over accordingly. Williams, J., held that the clerk could not, on these facts, be convicted of embezzlement, [*477 without its being shown that he had received some particular sum on account of his employer, and had converted either the whole or part of it to his own use. R. v. Chapman, 1 C. & K. 119, 47 E. C. L.; and see R. v. Wolstenholme, 11 Cox, C. C. 313.

There is still likely to be much difficulty on this point. Where a person is employed in the receipt and payment of money it is almost impossible to prove anything more than a deficiency in account, and if the words of Alderson, B., in R. v. Jones, supra, were to be taken in their strict sense, it would be impossible ever to procure a conviction for embezzlement where there were running accounts between the parties. It is suggested that there is some misapprehension of the principles of law applicable to this question. As has already been said, the first statute of embezzlement, 39 Geo 3, c. 38 (now repealed), was passed to meet a particular case which was held not to be larceny, namely, the appropriation of money by a clerk received by him from a customer on account of his master, supra, p. 470. Very strong arguments could be used to show that this was larceny at common law, the only difficulty that the judges had in the case referred to being about the trespass, and they seemed timid about extending the doctrine of constructive possession. But now that that difficulty has