The term “embezzlement” refers to a crime which involves the wrongful appropriation of personal property of another by one who has been entrusted with it and who has lawful possession of said property.
An embezzlement case generally involves the taking of money over which one exercises control in the course of one’s job.
Case Law Regarding Elements of Embezzlement
State v. Thyfault, 121 N.J. Super. 487, 496 (1972).
“The elements of embezzlement are settled. There must be a relationship such as that of employment or agency between the owner of the money and defendant; the money alleged to have been embezzled must have come into the possession of defendant by virtue of that relationship; there must as well have been an appropriation or conversion of that money, and such must have been intentional and fraudulent.”
Moore v. United States, 160 U.S. 268, 269-270 (1895).
“Embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. It differs from larceny in the fact that the original taking of the property was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking.”
Examples of State Embezzlement Statutes
Black’s Law Dictionary, 2nd Edition (1910) *historical*
“The fraudulent appropriation to his own use or benefit of property or money in trusted to him by another, by a clerk, agent, trustee, public officer, or other person acting in a fiduciary character. Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.”
Encyclopedia Britannica, 11th Edition (1910-1911) *historical*
BEZZLEMENT (A.-Fr. embesilement, from beseler or besillier, to destroy), in English law, a peculiar form of theft, which is distinguished from the ordinary crime in two points:—(1) It is committed by a person who is in the position of clerk or servant to the owner of the property stolen; and (2) the property when stolen is in the possession of such clerk or servant. The definition of embezzlement as a special form of theft arose out of the difficulties caused by the legal doctrine that to constitute larceny the property must be taken out of the possession of the owner. Servants and others were thus able to steal with impunity goods entrusted to them by their masters. A statute of Henry VIII. (1529) was passed to meet this case; and it enacted that it should be felony in servants to convert to their own use caskets, jewels, money, goods or chattels delivered to them by their masters. “This act,” says Sir J.F. Stephen (General View of the Criminal Law of England), “assisted by certain subtleties according to which the possession of the servant was taken under particular circumstances to be the possession of the master, so that the servant by converting the goods to his own use took them out of his own possession qua servant (which was his master’s possession) and put them into his own possession qua thief (which was a felony), was considered sufficient for practical purposes for more than 200 years.” In 1799 a clerk who had converted to his own use a cheque paid across the counter to him by a customer of his master was held to be not guilty of felony; and in the same year an act was passed, which, meeting the difficulty in such cases, enacted that if any clerk or servant, or any person employed as clerk or servant, should, by virtue of such employment, receive or take into his possession any money, bonds, bills, &c., for or in the name or on account of his employers, and should fraudulently embezzle the same, every such offender should be deemed to have stolen the same. The same definition is substantially repeated in a Consolidation Act passed in 1827. Numberless difficulties of interpretation arose under these acts, e.g. as to the meaning of “clerk or servant,” as to the difference between theft and embezzlement, &c.
The law now in force, or the Larceny Act 1861, defines the offence thus (section 68):—“Whosoever, being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant, shall fraudulently embezzle any chattel, money or valuable security which shall be delivered to or received or taken into possession by him for or in the name or on the account of his master or employer, or any part thereof, shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money or security was not received into the possession of such master or employer otherwise than by the actual possession of his clerk, servant or other person so employed, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any time not exceeding fourteen years, and not less than three years,” or imprisonment with or without hard labour for not more than two years. To constitute the offence thus described three things must concur:—(1) The offender must be a clerk or servant; (2) he must receive into his possession some chattel on behalf of his master; and (3) he must fraudulently embezzle the same. A clerk or servant has been defined to be a person bound either by an express contract of service or by conduct implying such a contract to obey the orders and submit to the control of his master in the transaction of the business which it is his duty as such clerk or servant to transact. (Stephen’s Digest of the Criminal Law, Art. 309.)
The Larceny Act 1901, amending sections 75 and 76 of the Larceny Act 1861, also describes similar offences on the part of 308persons, not being clerks or servants, to which the name embezzlement is not uncommonly applied. The act makes the offence of fraudulently misappropriating property entrusted to a person by another, or received by him on behalf of another a misdemeanour punishable by penal servitude for a term not exceeding seven years, or to imprisonment, with or without hard labour, for a term not exceeding two years. So also trustees fraudulently disposing of trust property, and directors of companies fraudulently appropriating the company’s property or keeping fraudulent accounts, or wilfully destroying books or publishing fraudulent statements, are misdemeanants punishable in the same way.
In the United States the law of embezzlement is founded mainly on the English statute passed in 1799, but the statutes of most states are so framed that larceny includes embezzlement. The latter is sometimes denominated statutory larceny. The punishment varies in the different states, otherwise there is little substantive difference in the laws of the two countries.
Statutes have been passed in some states providing that one indicted for larceny may be convicted of embezzlement. But it is doubtful whether such statutes are valid where the constitution of the state provides that the accused must be informed of the nature and cause of the accusation against him. (See also Larceny.)