Embezzlement, the felonious appropriation by clerks, servants, or others in a position of trust, of goods, money, or other chattels intrusted to their care, or received in the course of their duty, on account of their employers. It is essential to the crime of embezzlement that the article taken should not have been in the actual or constructive possession of the employer; for if it were, the offence would amount to Larceny (q.v.). Embezzlement is not a felony at common law; hence, persons guilty of this crime sometimes escaped punishment. In consequence of a flagrant instance of this immunity, the Act 39 Geo. III. chap. 85, was passed, whereby embezzlement was made a felony. This act has been repealed, but the law has since been fixed by subsequent enactments, and is now included in the Act 24 and 25 Vict. chap. 96.
Embezzlement by clerks or servants is punishable by penal servitude or imprisonment. If the offender be a male under sixteen, he may also be ordered to be privately whipped, at the discretion of the judge. Questions of much nicety often arose as to whether the facts proved constituted the crime of embezzlement or that of larceny; but this distinction has ceased to be of any importance under recent acts, whereby it is made competent, on an indictment for embezzlement, to convict a man of larceny, and vice versa. And hence, whichever of the two offences is charged against the servant, if the evidence shows he committed the other offence, then he may be found guilty of that other offence, and punished accordingly.
Embezzlement by bankers, brokers, factors, and other agents is now regulated by the statute cited above. Almost every conceivable species of fraudulent misappropriation by bankers and others is now a punishable offence. In particular, by the latter statute, embezzlement by a Bailee (see BAILMENT) is now indictable. A shopkeeper, for example, appropriating goods intrusted for repair, may be tried and convicted (see also FRAUD).
Embezzlement by bankrupts, or rather the pawning or disposing within four months before the bankruptcy of goods or any kind of property obtained on credit, is punishable by two years' imprisonment. See BANKRUPTCY.
Embezzlement of letters and newspapers by servants of the Post-office is also made highly penal by 7 Will. IV. and 1 Vict. chap. 36. The embezzlement of newspapers is punishable by fine or imprisonment; for embezzling a letter the extreme penalty is penal servitude for seven years, or (if the letter contain money or valuables) for life.
Embezzlement of the Queen's stores is punishable by penal servitude for fourteen years. In regard to this species of embezzlement, summary authority was given to comptrollers and other officers named, on proof of embezzlement of government stores below the value of twenty shillings, to fine the offenders to the amount of double the value of the article taken.
The American law is, in principle, the same as the English, but it seems that a person indicted for larceny cannot be convicted of embezzlement, or vice versa. Embezzlement of national property is punishable by the law of the United States; other forms of embezzlement and fraudulent breach of trust are dealt with by the laws of the several states.
In Scotland, the crime of embezzlement, or breach of trust, is punishable at common law. The distinction between this crime and that of theft is substantially the same as between embezzlement and larceny in England. In both countries, the criterion relied upon to distinguish these crimes is the question of possession by the owner; but in Scotland the tendency of the decisions of late years has been to regard the appropriation of articles intrusted for a temporary purpose as amounting to theft. In this respect the law of Scotland agrees with that of England in regard to embezzlement by a bailee.