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ship or duty to
for amount only.
repair, and many other similar delinquencies which DISTINCTION are spoken of in our treatises as breaches of trust only, are now held to be thefts.
Felonious appropriation is breach of trust and qualities of embezzlement, where there is a limited ownership on Limited ownerthe part of the accused—as by pledge or protracted account loan-or where the actual possession of the property is with the accused, and his duty to the owner is only to account for it. Where it is not the duty of the As distinguished person in whose hands the property is, to deliver it up deliver in specific in the specific form in which he received it,—or in a form to change it into which was the express purpose of his receiving it—but where his duty is only to hold
an agent and to account, failure to account is breach of trust and not theft. Again, Duty to account the appropriation of money is breach of trust and embezzlement, where it is not mere notes or gold or silver which have come into the accused's hands, as a servant, and which it is his duty to deliver at once, but where what is appropriated is an amount which he is bound to account for only. If a tradesman set up a Manager of branch establishment for the sale of his goods, and place a person in charge of it, giving him the control over the stock, on the footing that he is to account for his intromissions periodically, appropriation of any part of the price paid for goods constitutes breach of trust and embezzlement and not theft. It is not the notes and coin which he receives that he is bound to hand to his master, his duty is only to account for the value of the goods (1). On the same principle the actual title to possession which a pawn- Pawnbroker. broker obtains over goods pledged, precludes his offence from being held theftuous, if he appropriate pledges before the period of forfeiture (2).
1 Hurne i. 61. -Alison i. 356.More ii. 388.
2 Catherine Crossgrove or Bradley, H.C., Feb. 6th 1850; J. Shaw,
The same rule applies to appropriation of rents by a factor (1), or of the funds of a society by the treasurer, trust-funds by a trustee or executor (2), or the like. It is breach of trust and embezzlement if a Public officer. public officer keep a sum of money received in his official capacity, and for his department. Where a woman gave the amount of a fine to a constable as constable," to be paid to the procurator-fiscal, he was held properly charged with breach of trust (3). A sheriff-officer who appropriates the proceeds of a poinding and sale, is guilty of breach of trust and embezzlement (4). And an official commits breach of trust and embezzlement if, having the money of his employers in his hands for the purpose of making payments to their creditors, he take credit for sums so paid away, when he has not paid the money, but kept it for his own purposes (5).
But there are cases that come much nearer to theft than any of those above mentioned. In one, the
Postmaster keeping money
charge was that a postmaster received money, on the
for p. o. order. understanding that he was to write and address a
letter for the person who gave him the money, and to enclose in the letter a post-office order for the amount, and that he failed to do so. The charge was put alternatively as theft or embezzlement, but it was sustained as a good objection to the charge of theft, that the money was here given on a footing of agency and negotiation, and not to be directly handed over to a Person entrusted third party (6). Again, where the accused was
with sum to pay
separate charged with receiving "£17, or thereby," for the
special purpose of "paying
1 Hume i. 60.-Alison, i. 355.
3 Macdonald v. Macdonald, H. C.,
4 Malcolm M'Kinlay and David Macdonald, Glasgow, Sept. 15th
£9" to one person, and 1836; 1 Swin. 304.-Jas. Campbell, H.C., March 14th 1845; 2 Broun 412.
5 John M'Leod, Inverness, April 28th 1858; 3 Irv. 79 and 30 S. J. 521.
6 Case of John M'Leod, in preceding note.
“of paying £8, being the balance of said sum of £17 QUALITIES OF sterling" to another, it was held that these averments did not constitute a case of theft (1). The division of the sum into two parts made it difficult to apply the rule of a duty to deliver in forma specifica, particularly as the sums to be paid were charged merely as “ £9,” not“ £9 thereof,” and as “ £8 being the balance," &c. It would undoubtedly have been theft if two separate parcels had been given to the accused, the one containing £9 and the other £8, with express instructions to deliver the £9 parcel to one person, and the £8 parcel to another. There would then have been two distinct acts of stealing, each being a theft of certain notes or coins given to him to carry. But in the case of a general delivery of a sum like £17, to be divided between two people, the payment to the first person might necessitate a change of the specific form of part of the balance. If there were three £5 notes and two £1 notes the specific form of the money would require to be altered before the first payment of £9 could be made. There being thus a power of administration given to the accused, he not being used as a mere hand, his crime was held not to be theft. It certainly came very near it, showing how fine is the distinction between the one crime and the other (2).
In cases of breach of trust and embezzlement, the Frandulent de guilty party usually resorts to fraudulent devices, such defalcations. as making false entries in books, or failing to make entries, in order to conceal his defalcations. But this Concealment is not necessary to constitute the offence. The crime
1 Hugh Climie, H.C., May 21st 1838 ; 2 Swin. 118 and Bell's Notes 11.
2 The indictment in the case of Jas. Simpson, Glasgow, Sept. 27th 1847, was found relevant, the charge being theft. It shows well the distinction between the
ahove case and a true case of theft.
is complete if he appropriate what is in his possession in virtue of the trust reposed in him, even though he in no way conceal it. Thus where the treasurer of a Friendly Society allowed a balance beyond that which by its rules he was entitled to have in hand, to accumulate for several months, it was held not to be a defence that the society knew that he was in arrear, and that it was a question for the jury, in the whole circumstances, whether he was criminally in arrear, by appropriating the society's money, and that the fact of his accounts having been docqueted from time to time, with a statement of the balance due, implied no consent on the part of the society that the accused might
continue to hold the sums which he was in arrear (1). Trust may result This crime may be committed though the trust from fraud.
which is broken was itself created by a fraud on the Pretending to be part of the accused. If a person who is not a sheriff
officer, induces another, on pretence that he is so, to intrust him with a warrant of sale, and appropriates
the proceeds of the sale, he may be charged with Partner using breach of trust (2). Where a partner of a firm used signature of firm.
the signature of the firm to obtain funds, which he appropriated, he was charged with breach of trust and embezzlement, in so far as he did not apply the money
to the use of firm, but embezzled and appropriated it Post officer mak- (3). A post-office official, being accused of embezzling ing overcharge.
the postage "chargeable or charged by you upon the “said letter," the objection that the words
charged,” were irrelevant was repelled, as the postage received, whether an overcharge or not, was a payment made to him, and with which he was intrusted in virtue of his office (4).
1 Walter Duncan, Perth, Sept. ment). The relevancy was not dis26th 1849 ; J. Shaw 270.
cussed, as the accused failed to 2 Malcolm M‘Kinlay and David appear. But it is thought that the Macdonald, Glasgow, Sept. 15th charge would undoubtedly have 1836; 1 Swin. 304 (Indictment). been held relevant.
3 George Smith, Glasgow, Sept. 4 John Reeves, Glasgow, Sept. 15th 1836; 1 Swin. 301 (Indict- 22d 1843; 1 Broun 612.
Two cases must be noticed, which were held to be DOUBTFUL CASES embezzlements, but which might now be charged as thefts, in accordance with subsequent decisions. In the first (1), the appropriation by a bookbinder Bookbinder
appropriating of books left with him to be bound, was held books. to be breach of trust and embezzlement, and the reporter remarks that though no objection was stated, the question whether the offence was properly so described, or was theft, was maturely considered. It seems impossible to distinguish this case from that of a watchmaker appropriating watches left with him for repair, which was held to be theft by the whole Court (2).
And two of the judges who tried the case of the bookbinder (3), in giving their opinions in this latter case, admitted that the judgment must deprive the former decision of all authority. The other case Custodier of a (4) was one in which a person entrusted with a locked box, containing money and papers, belonging to a society, appropriated the box and its contents. This, it was laid down, was breach of trust and embezzlement, and not theft. But the accused had no control or administration of any kind. He had a bare custody, and his duty was to deliver the box as he received it. The subsequent decisions make it impossible to hold the offence to have been anything else than theft (5). The judge (6) who held otherwise was afterwards, in the watchmaker's case, in the minority.
Aggravations are seldom charged in cases of breach AGGRAVATIONS. 1 Rob. Sutherland, H.C., March 3d 1836; 1 Swin. 294 and Bell's 21st 1836; 1 Swin. 162 and Bell's Notes 11. Notes 9.
6 See also Craig v. Ponton, H.C., 2 George Brown, H.C., July 3d Nov. 16th 1829 ; 2 S. J. 31, where 1839; 2 Swin. 394.
the accused was held properly 3 Lords Moncrieff and Medwyn. convicted of theft, having broken Lord Gillies, who presided in the open a box which had been left case of tbe bookbinder, had been in his charge, and abstracted the removed to the Court of Exchequer contents. before the case of Brown.
6 Lord Justice General, then 4 David Walker, Stirling, Sept. Lord Justice Clerk Boyle.