it appears that they were made at his instance and with his knowledge."

$288. Circumstantial evidence to prove the venue.-Circumstantial evidence is usually all that can be obtained to prove the venue because of the customary secrecy of the act of conversion. If it appears that the accused received the property in the county alleged, and that, when it was last seen in his custody, he was in that county, the venue is proved.51 This prima facie proof of venue may be rebutted by showing that the money was taken to another county and fraudulently converted there.52

$289. Value of the property.-The value of the property involved need not be shown unless to ascertain whether the crime is a felony or misdemeanor.53 If the value of several articles is alleged in a lump sum, the value of each may be shown separately. Proof of the embezzlement of any part of the sum alleged is sufficient.55 But proof of the embezzlement of a draft or check does not sustain an allegation of the embezzlement of money. The crime of embezzlement is peculiar in some respects.

54

It is usually impossible to prove it with much preciseness of detail, particularly in the case of superior executive, public or private officials, who have no one to watch their manner of doing business. The statute against embezzlement would be a dead letter if it were required in every case to show precisely when the accused received the funds or to prove their character, whether

53 Gerard v. State, 10 Tex. App. 690, 692.

State v. Mook, 40 Ohio St. 588, 590. Under a statute permitting the money embezzled to be described as gold, silver or paper in the indictment proof of the amount of money taken is enough and the jury may presume it was in gold, silver or paper from this proof. Storms v. State, 81 Ark. 25, 98 S. W. 678.

State v. Foster, 1 Penn. (Del.) 389, 40 Atl. 939.

5 State v. Mispagel, 207 Mo. 557, 106 S.W. Rep. 513.

ddrafts, bank-notes or coin. Embezzlement usually consists of a !continuous series of acts of conversion, done at various times but with a common design, and resulting in the principal and important fact of a shortage. Proof of such a series of criminal acts is sufficient to sustain a verdict that the aggregate amount, as alleged, was embezzled."7

$290. Admissions by the defendant.-A confession to be admissible must relate specifically to the matter charged in the indictment. A confession, in general terms, that accused had been taking money "all along, ever since he began to work for him, and could not say how much he had taken," should be rejected, as it does not refer to names, dates, amounts or any other specific details.58 Admission by the accused, of relevant facts, are always competent, though they may tend to prove him guilty of another act of embezzlement."0

59

61

63

A draft paid to the defendant, or a receipt signed by him in his official capacity, is admissible against him."2 The check by which the accused drew the money he embezzled is competent. But statements of accounts and letters passing between the principal and the agent are not generally received as independent evidence, unless they can be construed as constituting a part of the res gesta.

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§ 291. Documentary evidence.-The admissibility and effect of transcripts of public records are frequently under consideration

57

Jackson v. State, 76 Ga. 551, 573; State v. Pratt, 98 Mo. 482, 489, 11 S. W. 977; State v. Ring, 29 Minn. 78, 84, 11 N. W. 233; Bolln v. State, 51 Neb. 581, 71 N. W. 444.

52 N. W. 246. Though not payable to him. People v. McBride, 120 Mich. 166, 78 N. W. 1076.

62

People v. Van Ewan, 111 Cal. 144, 43 Pac. 520; Denton v. State, 77 Md.

Commonwealth v. Sawtelle, 141 527, 529, 26 Atl. 1022. Mass. 140, 144, 5 N. E. 312.

Butler v. State, 91 Ala. 87, 9 So. 191; State v. Mims, 26 Minn. 183, 2 N. W. 494; Smith v. State, 34 Tex. Cr. 265, 30 S. W. 236, 237; State v. Davison (N. H., 1906), 64 Atl. 761.

80

63

De Leon v. Territory, 9 Ariz. 161,
Pac. 348.

State v. Adams, 108 Mo. 208, 18 S. W. 1000; Eatman v. State, 48 Fla. 21, 37 So. 576. The fact that the defendant does not reply to a letter requesting a settlement is evidence with the letter. State v. Adams, 108 State v. Brooks, 85 Iowa 366, 371, Mo. 208, 213, 214, 18 S. W. 1000.

Bode v. State, 80 Neb. 74, 113 N. W. 996.

65

in the trial of public officials for embezzling public property or funds. The general rule is that public records are admissible as evidence of all facts which are contained therein, and which were required by statute to be recorded by the official who made the entry. So the failure of a public officer to pay over money which he has collected may be shown by a transcript of an official register in which the payment should have been entered. Such records are not, however, conclusive against the defendant. He may endeavor to explain or to impeach them unless he had already examined them and appeared satisfied with the entries. Under these circumstances he may be regarded as estopped by them.“ Entries made by the accused himself in his own hand in books kept by him are received against him as admissions to show the receipt of the money and a failure to pay over." But entries in his books by others are not admissible unless there is preliminary proof that his attention was called to them." An expert accountant may testify orally to the result of his examination of voluminous books and accounts containing the amount of money received and paid by the accused when it is not convenient to bring. the books into court.69

Shivers v. State, 53 Ga. 149, 152; State v. King, 81 Iowa 587, 47 N. W. 775. See Elliott Evidence, § 2968.

"People v. Flock, 100 Mich. 512, 514, 59 N. W. 237; Bork v. People, 16 Hun (N. Y.) 476; Hockenberger v. State, 49 Neb. 706, 68 N. W. 1037. A check drawn by an official is admissible against him to show the manner in which he embezzled public funds, though it may not be formally correct, or a sufficient voucher as between the government and the bank upon which it is drawn. State v. Noland, III Mo. 473, 19 S. W. 715.

So. 183; People v. Burnham, 106 N.
Y. Sup. 57, 120 App. Div. 388.

Hollingsworth v. State, 111 Ind. 289, 297, 12 N. E. 490; State v. Findley, 101 Mo. 217, 14 S. W. 185, 187; Busby v. State, 51 Tex. Cr. 289, 103 S. W. 638. Where the defendant was accused of embezzling the money of a bank of which he was cashier, and the point at issue was whether he had conspired with others to get the money of the bank into his possession that he might convert it to his own use, evidence is relevant to show that the bank became insolvent, its financial condition at that date, its stock and liabilities, that defendant and his brother were insolvent and owed the bank large sums, that defendant had drawn large sums on his own account, Lang v. State, 97 Ala. 41, 46, 12 and that a person whose draft had

07 State v. Ring, 29 Minn. 78, 83, II N. W. 233; Commonwealth v. Pratt, 137 Mass. 98, 105; Hockenberger v. State, 49 Neb. 706, 68 N. W. 1037.

As against the claim of the accused that he accounted for the proceeds of a check which he is accused of embezzling, it is permitted to the state to give oral testimony showing the history of the check from the time it was made out and mailed to the accused to the date when it was returned by the bank paying it.70 The true character of a check which the accused is charged to have used fraudulently may always be shown by parol evidence."1 Though a contract of hiring be in writing, parol evidence is received to show how the money to become due thereunder was to be used. To refresh the memory of the prosecuting witness a memorandum may be referred to if it was properly made from information within the recollection of the witness at the time it was made.73

72

74

§ 291a. Definition of larceny.-Larceny may be defined as the unlawful or wrongful taking and carrying away of the personal property of another with the intent to convert it to the use of the accused or to the use of some third person without the owner's consent. If the accused, intending to steal another's goods, persuades the owner to consent to give him the goods in any manner showing an intention to pass title to him, it is not larceny." Larceny and robbery are distinct in that in the case of robbery the taking is by physical force and without the consent of the owner. So where the accused was discovered to have his hand in the pocket of the prosecuting witness, and a struggle ensued between them which ends in the taking of the money by force, a robbery is committed, though in the beginning the accused intended only to commit a larceny." But the taking of a purse from the pocket

been discounted for the defendant was also insolvent. Reeves v. State, 95 Ala. 31, 11 So. Rep. 158. Evidence to show that the bondsmen of the accused had settled and paid the shortage is irrelevant. Fleener v. State, 58 Ark. 98, 105, 23 S. W. 1; Morehouse v. State, 35 Neb. 643, 646, 53 N. W. 571; State v. Pratt, 98 Mo. 482, 492, II S. W. 977; State v. Leicham, 41 Wis. 565.

of the prosecuting witness secretly and without his knowledge and without force and violence is larceny only."

§ 292. Larceny-The felonious intention.-The felonious and larcenous intention which was present in taking the goods must be shown beyond a reasonable doubt.78

It may, of course, be inferred from circumstances indicating motive. The intent is for the jury, and if it can fairly be inferred on all the evidence a conviction must be affirmed."

To rebut the inference of a felonious intent the accused must be permitted to testify that he had, or believed he had, and claimed in good faith a title to the property derived from its owner, or that he took the property for any innocent purpose."1 or in an open manner, to satisfy a claim against the owner, or because he believed it to be his own.83 The intoxication or

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"Morris v. State, 125 Ga. 36, 53 S. E. 564. For further definitions of the crime, the reader is referred to the cases cited in § 292 and § 293.

18 Long v. State, 11 Fla. 295, 297; Phelps v. People, 55 Ill. 334; Britt v. State, 2 Tex. App. 215, 222, 17 S. W. 255; Waidley v. State, 34 Neb. 250, 252, 51 N. W. 830; Micheaux v. State, 30 Tex. App. 660, 18 S. W. 550; Fence v. State, 110 Ind. 95, 99, 10 N. E. 919; State v. Fitzpatrick, 9 Houst. (Del.) 385, 32 Atl. 1072; Green v. State (Tex., 1896), 33 S. W. 120; Truslow v. State, 95 Tenn. 189, 31 S. W. 987; State v. Ravenscraft, 62 Mo. App. 109; People v. Hendrickson, 18 App. Div. (N. Y.) 404, 46 N. Y. S. 402; People v. Frankenberg, 236 Ill. 408, 86 N. E. 128; State v. Allen, 34 Mont. 403, 87 Pac. 177; Todd v. Commonwealth, 29 Ky. L. 473, 93 S. W. 631; Flagg v. State, 51 Tex. Cr. 602, 103 S. W. 855; Stoddard v. State, 132 Wis. 520, 112 N. W. 453; McMahan v. State, 50 Tex. Cr. 244, 96 S. W. 17; Malone v. State, 169 Ind. 72, 81 N. E. 1099; Ladeaux v. State, 74 Neb. 19,

103 N. W. 1048. See Elliott Evidence, 88 3055, 3056. Evidence of good character of defendant in prosecution for larceny, 103 Am. St. 901. Comprehensive note on proof of the corpus delicti in criminal cases, 68 L. R. A. 33.

Robinson v. State, 113 Ind. 510, 512, 16 N. E. 184; Malone v. State, 169 Ind. 72, 81 N. E. 1099; Jefferson V. State (Ark.), 115 S. W. 1140. See, also, Talbert v. State, 121 Ala. 33, 25 So. 690.

So State v. Williams, 95 Mo. 247, 250, 8 S. W. 217, 6 Am. St. 46; Commonwealth v. Stebbins, 8 Gray (Mass.) 492, 495.

81 Brooks v. State (Tex., 1894), 27 S. W. 141. The declaration of a deceased owner of property alleged to have been stolen that he gave it to the accused is admissible. People v. Doyle, 58 Hun (N. Y.) 535, 538, 12 N. Y. S. 836.