21 The accused may always introduce evidence to show he acted in good faith and that he had no intention to convert." He may testify he believed he had authority to use the money as his own,2 as, for example, where his employer owed him a debt and he retained money to offset it.22 He may show that the money he is accused of embezzling was employed to pay the debt of the principal to another with the consent of the owner.23 If the jury are convinced that the accused had appropriated, or applied the property openly, and with an honest belief that he owned it, they should usually, under the statutes, acquit, though the accused was mistaken in his claim of title, and his good faith had nothing for its foundation.25 24 The offense is complete as soon as the property or money is intentionally converted. The subsequent return of the property or the repayment of the money to the owner is not admissible in evidence and does not excuse or extenuate the offense.26 § 283. Proving other acts of embezzlement.-Other similar acts of embezzlement at about the same time are relevant to show the criminal intent.27 514 "Frink v. State (Fla. 1908), 47 So. 83 S. W. 970; Busby v. State, 51 Tex. Cr. App. 289, 103 S. W. 638; State v. Eatman v. State, 48 Fla. 21, 37 Merkel, 189 Mo. 315, 87 S. W. 1186; So. 576. State v. Summers, 141 N. C. 841, 53 * Eatman v. State, 48 Fla. 21, 37 S. E. 856; Guenther v. State, 137 Wis. So. 576. 24 183, 118 N. W. 640; United States v. Gilbert, 25 Fed. Cases 15205; People v. DeLay, 80 Cal. 52, 22 Pac. 90; People v. Lapique, 120 Cal. 25, Shinn v. Commonwealth, 32 Gratt. 52 Pac. 40. (Va.) 899; State v. Leicham, 41 Wis. 565; People v. Britton, 118 N. Y. S. 989. 27 People v. Neyce, 86 Cal. 393, 395, 24 Pac. 1091; People v. Bidleman, 104 Cal. 608, 613, 38 Pac. 502; People v. Connelly (Cal.), 38 Pac. 42; People v. Van Ewan, III Cal. 144, 43 Pac. 520; State v. Kortgaard, 62 Minn. 7, 64 N. W. 51; Bulloch v. State, 10 Ga. 47, 54, 54 Am. Dec. 369; Commonwealth V. Tuckerman, ΙΟ Gray (Mass.) 173, 200; Commonwealth v. Shepard, I Allen (Mass.) 575, 581; So it may be shown that the accused failed to pay over money belonging to other persons aside from the offense in question and also promises by the accused that he would pay money entrusted to him though such evidence tends to prove a distinct offense. 28 § 284. Evidence of demand and refusal.-Whether proof of a demand is necessary to show the conversion depends wholly upon the language of the statute. Even if not absolutely essential it may be relevant and proper to prove a demand, and that compliance was refused to show the intention to convert.29 Proof of a demand is certainly immaterial where the demand would be ineffectual, as when the accused admits he has sold the goods.30 Proof of a demand is not necessary where it would be impossible to make it because the accused disappeared shortly after the embezzlement.31 The same rule applies where before any demand Commonwealth v. Eastman, 1 Cush. (Mass.) 189, 216, 48 Am. Dec. 596; Brown v. State, 18 Ohio St. 496; People v. Hawkins, 106 Mich. 479, 64 N. W. 736; Jackson v. State, 76 Ga. 551, 568; Stanley v. State, 88 Ala. 154, 157, 7 So. 273; Lang v. State, 97 Ala. 41, 46, 12 So. 183; Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782; People v. Gray, 66 Cal. 271, 5 Pac. 240; Reg. v. Richardson, 8 Cox C. C. 448, 2 F. & F. 343. But the court must, on request, instruct the jury that this evidence must be confined to this point. State V. Holmes (Mich., 1896), 68 N. W. 11; Eatman v. State, 48 Fla. 21, 37 So. 576; United States v. Breese, 131 Fed. 915; State v. Dudenhefer, 122 La. 288, 47 So. 614; People v. Robertson, 6 Cal. App. 514, 92 Pac. 498; Kossakowski v. People, 177 Ill. 563, 53 N. E. 115; People v. Rowland (Cal. App., 1909), 106 Pac. 428. ple v. Royce, 106 Cal. 173, 39 Pac. 524, 525; Burnett v. State, 60 N. J. L. 255, 37 Atl. 622; State v. Blackley, 138 N. Car. 620, 50 S. E. 310. See Elliott Evidence, § 2970. The felonious conversion of the property, when complete, constitutes the gist of the crime, and if this is otherwise proved a demand is superfluous. Wallis v. State, 54 Ark. 611, 620, 16 S. W. 821. Cf. State v. Brooks, 85 Iowa 366, 371, 52 N. W. 240; State v. Ross (Ore., 1909), 104 Pac. 596. 30 United States v. Adams, 2 Dak. 305, 9 N. W. 718; State v. Foley, 81 Iowa 36, 37, 46 N. W. 746; Dean v. State, 147 Ind. 215, 46 N. E. 528; State v. Fellerin, 118 La. 547, 43 So. 159; State v. Knowles, 185 Mo. 141, 83 S. W. 1083. Evidence of demand may be admissible and proper to show a failure to pay over or account for money. State v. Sarlls, 135 Ind. 195, 199, 34 N. E. 1129; State v. Adam Schintz v. People, 178 Ill. 320, 52 son, 114 Ind. 216, 219, 16 N. E. 187; N. E. 903. Evidence of other crimes in prosecution for embezzlement, see 62 L. R. A. 226, 264, 105 Am. St. 996, 1001. 29 State v. Bryan, 40 Iowa 379; Peo Hale v. Richards, 80 Iowa 164, 45 N. 31 Kossakowski v. People, 177 Ill 563, 53 N. E. 115. is made the accused tells a witness that the money is all gone and he supposes he is to be arrested. 32 34 § 285. The existence of the trust relation.-There can be no embezzlement where the relation between the accused and the owner of the property is that of debtor and creditor.33 According to this, there can be no embezzlement as between partners. The evidence must show that a relation of trust existed between the defendant and the true owner of the money or property, and that the thing embezzled came into the defendant's possession by virtue of his employment as an agent or bailee.35 An agent or servant de facto without an express or formal appointment, may be guilty of embezzlement. But one who is in no position of trust or confidence towards the owner cannot be guilty of embezzlement though he may commit larceny. It is sufficient to prove the official character of an officer of a corporation de facto. It is not necessary to produce a written certificate of his appointment, or to show that he was sworn or had given an official bond.36 State v. Blackley, 138 N. Car. 620, 50 S. E. 310. No demand required though it could have been made. State v. Tompkins, 32 La. An. 620; Commonwealth V. Tuckerman, ΙΟ Gray (Mass.) 173; Wallis v. State, 54 Ark. 611, 16 S. W. Rep. 821; State v. New, 22 Minn. 76; State v. Porter, 26 Mo. 201; Hollingsworth v. State, III Ind. 289, 12-N. E. Rep. 490. These cases were under particular statutes. A demand was required to be proved in People v. Tomlinson, 66 Cal. 344, 5 Pac. Rep. 509; People v. Royce, 106 Cal. 173, 39 Pac. Rep. 524; Wright v. People, 61 Ill. 382; State v. Bancroft, 22 Kan. 170. But it need not be in any particular form or language. State v. Bancroft, 22 Kan. 170. App. 496, 502, 103 S. W. 924, 926, 123 35 Bartow v. Feople, 78 N. Y. 377, S. * Mulford v. People, 139 Ill. 586, 28 Fla. 69, 43 So. 684; Walker v. State, N. E. 1096. 117 Ala. 42, 23 So. 149; Cooper v. McCrary v. State, 51 Tex. Cr. State, 101 Ga. 783, 29 S. E. 22; People An entry in the book of the minutes of the board of directors of a corporation, showing the election of the accused as president is sufficient proof of official character with evidence that he acted as president. Whether or not a public official who is accused of embezzlement of public funds was or was not lawfully appointed is immaterial.38 37 But the crime is not proved merely by showing the agency and the conversion. To show the intent, it must appear beyond a reasonable doubt that the agent had no right to use the money or goods in the manner he did. It must be shown to be a conversion which the agent, under his contract, had no right to make.” Ordinarily, the contract of employment, when in writing, ought to be produced. But it seems the principal may testify orally to the fact of agency, and he is then open to cross-examination as to the facts upon which this conclusion is based.40 $286. The ownership of the property.-The ownership of the goods must be proved to be in some other person than the accused. When it is laid in a corporation, proof of a corporation de facto is enough." The charter or certificate of incorporation need not be produced.*2 v. Cobler, 108 Cal. 538, 41 Pac. 401; State v. Mims, 26 Minn. 183, 2 N. W. 494; Fortenberry v. State, 56 Miss. 286. taxes. State v. Dudenhefer, 122 La. 288, 47 So. 617. 40 State v. Brooks, 85 Iowa 366, 372, 52 N. W. 240. But compare, contra, * McKnight v. United States, 122 People v. Bidleman, 104 Cal. 608, 613, Fed. 926, 61 C. C. A. 112. 3 People v. Sanders, 139 Mich. 442, 102 N. W. 959; State v. Ring, 29 Minn. 78, 11 N. W. 233. State v. Wallick, 87 Iowa 369, 373, 54 N. W. 246; State v. Hill, 47 Neb. 456, 66 N. W. 541; People v. Page, 116 Cal. 386, 48 Pac. 326; Busby v. State, 51 Tex. Cr. App. 289, 103 S. W. 638; McCrary v. State, 51 Tex. Cr. App. 502, 103 S. W. 924, 123 Am. St. 905. A tax collector withholding settlement raises a presumption of embezzlement. It may not be necessary to prove he has collected any 38 Pac. 502; Thalheim v. State, 38 Fla. 169, 20 So. 938. "Fleener v. State, 58 Ark. 98, 102, 23 S. W. 1; Burke v. State, 34 Ohio St. 79; Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121; State v. Turner, 119 N. Car. 841, 25 S. E. 810; Kossakowski v. Feople, 177 Ill. 563, 53 N. E. 115. 42 An immaterial variance in proving the name of the owner may be disregarded. Jackson v. State, 76 Ga. 551, 567; Commonwealth v. Dedham, 16 Mass. 141, 147; Eatman v. State, 48 Fla. 21, 37 So. 576. Contra, Washington v. State, 72 Ala. 272, 276. 43 The ownership of money by a corporation is proved by evidence that the corporation owned certain real estate and that such real estate had been sold. The conversion of the funds of the local lodge of an unincorporated benevolent association is embezzlement under a statute which punishes embezzlement by officials or members of benevolent organizations and a local lodge has such an ownership of the funds collected from its members to be forwarded to the grand lodge as will justify alleging it to be the owner." The ownership of the money or property embezzled must be proved substantially as laid in the indictment. Proof of ownership in a corporation does not sustain an allegation of ownership by a partnership. But an allegation of ownership by an express company is supported by proof that the money appropriated belonged to parties who had delivered it to the express company for transportation. So proof that money was paid to a bank through checks drawn by the agent of the state and collected by the bank is sufficient to show that the money was the property of the state." 45 48 § 287. Evidence of efforts to conceal or dispose of property or money. It is always relevant, and, indeed, indispensable to prove some kind or degree of concealment by the accused, either of the property or of the facts regarding its disposal. Fraudulent vouchers and false statements, and false entries in books containing a record of the transaction in question are always relevant. It need not be shown that the false entries were made at the time of the embezzlement, or that they were made by the accused, if 49 Fields v. United States, 27 App. 181; State v. Tompkins, 32 La. Ann. D. C. 433. 620; State v. Fain, 106 N. Car. 760, "State v. Knowles, 185 Mo. 141, 83 764, 1II S. E. 593; Stallings v. State, S. W. 1083. 29 Tex. App. 220, 15 S. W. 716, 717. 15 State v. Morgan, 28 Oreg. 578, 42 But facts showing a conversion are Pac. 128. enough. It need not be shown how defendant finally disposed of the money. State v. King, 81 Iowa 587, 47 N. W. 775; State v. Pierce, 77 Iowa 245, 42 N. W. 181. 40 State v. Cowan, 74 Iowa 53, 55, 36 N. W. 886; Commonwealth v. Moore, 166 Mass. 513, 44 N. E. 612. |