3 Shan. Cas. 754 | Tenn. | 1877
delivered tRe opinion of tRe court;
TRe prisoner appeals in error from a judgment of tRe criminal court of Shelby county, upon a conviction of the crime of embezzlement. TRe facts are, tRat tRe- prisoner, in October, 1873, was in tRe service of tRe SontRem Express Co., a corporation operating its franchise on tRe Mississippi & Tennesee Kailroad, whose northern terminus was at Memphis, where there was an office and agency' of said express company. TRe particular duties assigned to the defendant were the custody, carriage, and delivery of express packages between the cities of Memphis, Tenn., and Grenada, Miss. About the 21st of October, 1873, tRe defendant received at the city of Grenada certain packages to be delivered at the agency in Memphis, and receipted
The indictment contains three counts, the first charging embezzlement, the second a fraudulent breach of trust, and the third larceny, each count charging the ownership of the money to he in the express company. He was convicted of embezzlement under the first count, and adjudged to confinement in the penitentiary for a period of eight years. It is insisted on behalf of the defendant that the money packages having been thus receipted for by the defendant, were then in possession of the company, and whether he was to he regarded as the agent or servant of the company, the fraudulent appropriation of them under the facts could not he embezzlement, and that he has been convicted of the wrong offense. It is also insisted that
It is impossible to tell when the fraudulent intent in such a case was conceived, but it is enough to. know .that the crime was not consummated until the book of entries was handed over to the Memphis agency with these packages unaccounted for, and this, in the opinion, of the court, determines the question of jurisdiction. 2 Bish. Cr. Law, p. 360. But the principle is invoked in behalf of the defendant that if it appear that the money was ever even constructively in the possession of the master, the offense amounts to larceny at common law. 2 Whart. Cr. Law, sec. 1941; Archibold’s C. P., 266. The offense charged against the prisoner is purely statutory, and the statutes creating the offense are derived from the English statutes 21 Hen. 8, ch. 7; 39 Geo. 3, ch. 86, and 7 and 8 Geo. 4, ch. 29, modified by the late statute 24 and 25 Vict., ch. 96.
The object of these statutes as [well as that] of our own, was to meet and obviate the defects in the law of larceny. Under these statutes it was held that the money
The English as well as the American statutes contain the like saving in favor of apprentices and persons under eighteen years of age, and it has been held that the age of the defendant must in such ease be proved by testimony. The jury cannot look to the appearance of the defendant to determine whether or not he comes within the excepted age. Stephenson v. The State, 28 Ind., 272; 4 City Hall Recorder, 159. But we hold the sounder rule to be, that this is more properly matter of defense, and that proof of age or apprenticeship being peculiarly within