33 P. 890 | Cal. | 1893
Defendant was convicted of the crime of embezzlement, and appeals from the judgment and from an order denying a motion for a new trial.
The indictment charges that at the county of Alameda one Richard C. Beggs, a clerk, agent and servant of the “Oakland Consolidated Street Railway Company” (a corporation), embezzled $8,500, the personal property of said company, and that the defendant, B. F. Gallagher, did aid and abet said Beggs in such embezzlement.
The first point made by appellant is that Beggs did not commit the crime of embezzlement, as charged in the information. “Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted”: Pen. Code, sec. 503. Section 508 of the Penal Code is in the following language: “Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement.” The crime of embezzlement is a statutory offense, and was unknown to the common law. It is said that in the common-law definition of larceny there were two gaps through which, in the expansion of business, many criminals escaped. The first of these gaps was caused by tire rule that to sustain a charge of larceny it was necessary that the stolen goods should have been at some time in the prosecutor’s possession. The second was in the assumption that when possession of goods was acquired by a bailee no subsequent fraudulent conversion constituted larceny while the bailment lasted, save in a few excepted cases. It was to meet these defects in the common law that statutes have been passed in most, if not all, of the states of our Union, in some of which an offense is created known as embezzlement larceny, and in others, as in our own statute, designating the offense as embezzlement. The case at bar relates to the remedy for the
These preliminary remarks with a view to the better understanding of the initial points in the case, and we proceed to a review of the contention of appellant, the underlying theory of which is that the money alleged to have been embezzled did not come into the control or care of Beggs by virtue of his employment as a clerk, agent, or servant. The uncontradicted evidence was to the effect that the Oakland Consolidated Street Railway Company (a corporation) was doing business, at Oakland, in the county of Alameda, was indebted to two companies in several sums of money aggregating say $2,500; that Richard C. Beggs was secretary of the corporation, and as such secretary his duties were, among other things, to beep the books of the company, to receive all the coin due the company, and deposit it (except small sums, kept to pay off discharged workmen) in the First National Bank of the city of Oakland; to draw and sign checks as secretary, which checks were also to be signed by the president or vice-president; that the corporation had in the bank aforesaid some $8,000 to $10,000 and credit for an overdraft of $10,000; that on or about June 3, 1892, J. E. McElrath, vice-president of the corporation, for the purpose of paying off the indebtedness of the corporation to the two companies aforesaid, and not lmowing the precise amount thereof, signed and delivered to Beggs two checks, payable to his (Beggs’) order, on said bank, leaving the amount to be paid thereon and on each of them in blank. The evidence is contradictory as to whether Beggs was to indorse the checks and deliver them to the creditors or to draw the money thereon from the bank and pay them. . As there was evidence to that effect, we must, in favor of the verdict, assume the latter theory to have met the approbation of the jury. On the sixth day of July, 1892, Beggs filled up the checks, one for $4,000 and the other for $4,519.20, signed them as secretary, drew the full amount thereof, aggregating $8,519.20, from the First National Bank, converted $1,300 thereof into currency, left $2,500 with his wife, and fled with the residue to the northern part of the state, where he was arrested two or three days later, and thereupon confessed his guilt. The connection of defendant with the transaction is
It is further urged that Beggs had no authority to draw the money from the bank, and hence it did not ‘ ‘ come into his control or care by virtue of his employment,” within the purview of the statute. The earlier English authorities are not uniform on this proposition. In Rex v. Snowley, 4 Car. & P. 390, the prisoner was hired to perform certain services, and was authorized to receive not less than twenty shillings in each case. In a single instance he charged only six shillings, which he received, and did not account for. Held, that there was no embezzlement of the six shillings, inasmuch as it was his duty to take no sum less than twenty shillings, and therefore the six shillings were not received by the prisoner in the course of his employment. There are other English cases of like import, while perhaps an equal number of eases in the same courts hold a contrary doctrine. Bishop, in his work on Criminal Law, in commenting upon Bex v. Snowley, uses the following language: ‘ ‘ That in reason, whenever a man claims to be a servant while getting into his possession by force of this claim the property to be embezzled he should be held to be such on his trial for the embezzlement. Why should not the rule of estoppel, known throughout the entire civil department of our jurisdiction, apply in the criminal? If it is applied here, then it settles the question; for by it, when a man has received a thing from another under a claim of agency, he cannot turn round and tell the principal asking for the thing, ‘Sir, I was not your agent in taking it, but a deceiver
Appellant further insists that there is no evidence whatever that defendant aided and abetted in the appropriation and conversion of the money. In the light of the testimony this claim seems somewhat extraordinary. There was testimony tending to show that by previous appointment defendant repaired to a saloon in the vicinity of the bank while Beggs procured the money; that they immediately met, and came to San Francisco with the funds, procured a private room at the Lick House, where defendant registered under a fictitious name; that he procured currency for $1,300 of the coin, took all of the funds except $2,500, in a valise, to the Oakland station, procured tickets for himself and Beggs to Sacramento, paying therefor from the appropriated funds, had access to and carried the money at least a portion of the time, and when arrested had $50 or $60 of the money on his person, coupled with the fact that they did not pursue the usual course of
Defendant, Gallagher, was a witness in his own behalf at the trial, and upon cross-examination certain questions were propounded by the court, against the objection of defendant’s counsel, and this action is assigned as error. Beggs was a witness for the prosecution, and had testified at length in the case, and as to all, or nearly all, of the facts therein. Among other things, he related that after he received the two checks defendant saw them, and advised filling them up, drawing the money, and fleeing to Seattle, or some foreign port; that they met on Saturday, June 4th, again on Sunday, and talked the matter over, and finally agreed that on Monday, June 6th, at 12 o’clock, the witness was to draw the money, and defendant to wait outside until Beggs came out, and, if detained long, defendant was to go to a certain saloon across the street, and wait for him; that he drew the money, and met the defendant at the saloon. Beggs further detailed their acts from thence until arrested. As a witness in his own behalf, defendant "
We concur: Belcher, C.; Temple, C.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and a new trial ordered.