36 Tex. 353 | Tex. | 1872
The appellant was tried and convicted of theft, 'and the material question for determination presented by the record and brief of appellant, is, whether the offense of which he has been convicted is theft or embezzlement. '
.• The appellant sought and obtained employment as a clerk in Livingston’s store, and ón the night after his employment, being left in charge of the store, he took therefrom money and goods, the property of Livingston, and attempted to make his escape with the same. There is no assignment of errors, and the only question in regard to the verdict of the jury and judgment of the court presented in the .record, is raised in the motion for a new trial, and that claims'that the defendant, if guilty at all, is guilty of embezzlement, and cannot, therefore, he punished for theft.
The English and American laws are by no means felicitous in defining the difference between larceny or theft, and embezzlement. Indeed the statute of 7th and 8th George IVth, and 24th and 25th Victoria, declare the embezzlement of clerks and servants to be larceny, and most of the American States have followed one or the other of these statutes, and declare the embezzlement of any officer, agent, clerk, or servant, to he either larceny, or declare that the offense shall be punishable as for larceny.
Our statute, Article 2421, Paschal’s Digest, provides, in substance, that any clerk, or other person therein named, who shall embezzle or misapply, or convert to his own use, without the consent of his principal, any money or other property of such principal or employer which shall have come into his possession or shall be under his control by virtue of such office, agency, or employment, he shall be punished as prescribed for theft. This statute includes many offenses which, at common law, and by the statutes of many of the States, would be punishable as an act of larceny, and Mr. Bishop, in his work on Criminal Law, p. 368, contends that under these different statutes against embezzlement, the prosecuting power has the election to indict the offender for embezzlement or larceny.
But we do not consider it- necessary to ascertain the precise difference between theft and embezzlement, as made by the stat
The defendant in this case obtained employment as a clerk, and on the first opportunity, and within a few hours after his employment, he absconded with a large amount of money and goods, and was in- the stage leaving the country when apprehended, and from the facts proven, we think the charge of the court a very clear, succinct, and complete exposition of the law applicable to the case. It instructed the jury that if they believed the defendant sought employment as a clerk, for the purpose and with intent of stealing the property of Livingston, and further, if they believed from the evidence, that in carrying out that purpose and intent, he did take the property of Livingston as charged, then the taking would be theft, and they should find him guilty. There was no error in the charge, and under it the jury found him guilty, and we are not willing to say that their verdict is contrary to the law and the facts of the case, and the judgment is therefore affirmed.
Affirmed.