The People vs. Hennessey, 15 Wend. 147

By the Court, Savage, Ch. J. In this case two questions ■ arise : 1. Whether the indictment charges an offence under the statute; 2. Whether the conviction was proper ? The statute is in substance as follows: If any clerk or servant of any private person or corporation shall embezzle or convert to his own use, without the assent of his master or employer, any money, goods, rights in action, or other valuable security or effects whatever, belonging to any other, person, which shall have come into his possession,' by virtue of such employment, he shall, upon conviction, be punished,&c.

The defendant’s counsel insists, that to bring the offence within the statute, the property embezzled should belong to some person other than the master; and he contends that such is the true construction of the statute ; that the words “ belonging to any other person,” mean belonging to any person other than the master, or employer. To my mind it is very clear that they mean, belonging to any person other than the servant who is guilty of the embezzlement.

The idea is, that he shall be punished for unlawfully converting or appropriating to his own use any money, goods, dzc. of any person other than his 1 own, which shall come to his hands by reason of the relation in which he stands as clerk or servant to his employer. Any other construction would impute to the legislature an absurdity. The very term “ embezzlement” is peculiarly applicable to a fraudulent appropriation made by a servant of goods entrusted to him by his master.

By the common law it was not larceny in a servant fraudulently to dispose of his master’s goods committed to him to keep, but only a breach of trust. The statute 21 H. 8, ch. 7, recites that it was doubtful whether such an offence was felony, and it enacts that servants being over eighteen years of age, and not apprentices, to whom caskets, jewels, money, goods or chattels of their masters shall be delivered to keep, and who shall embezzle the same, or convert the same to their own use, with intent to steal, shall be adjudged guilty of felony, and punished accordingly.

This statute, in terms, made the offence of embezzling property delivered by the master, felony; the property of others was not expressly embraced,and it was held,in Bazeley’s case,2 East’s P. C., 571, that where a banker’s clerk received money and notes paid in by a customer, and embezzled the notes, that the offence was not larceny, but only a breach of trust. This decision produced the statute 39 Geo. 3, ch. 85, which is entitled “

an act to protect masters against embezzlement by their clerks or servants.” It recites, that whereas bankers, merchants and others are obliged to entrust their clerks and servants with receiving, paying, negotiating, exchanging or transferring money, goods, bonds, bills, notes, banker’s drafts, and other valuable effects and securities; and whereas doubts have been entertained whether the embezzling of the sam amounts to felony, it enacts that the person so embezzling the same shall be deemed to have feloniously stolen the same from his master or employer, for whose use, or on whose account the same was delivered to him, or possession taken by him.

The statute 21 Henry 8, ch. 7, was substantially enacted in this state, in 1788, 1 R. L. 112, which was confined to the embezzlement of money, goods or chattels delivered to be safely kept. The act of February 25, 1813, extends the offence to the embezzling of not only money, goods and chatties, but also bills of exchange, bonds orders," warrants, bills or promissory notes for payment of money, or any public securities.

The act of April 13, 1819, declares that officers, agents, clerks or servants of banks, or any person employed in such capacity, who shall embezzle any money, goods, bonds, bills, .checks:, noteg? banker’s drafts, or other valuable security or effects whatsoever, belonging to such bank, or to any person having lodged the same with such bank or such officer or servant, ■ shall be guilty of felony, &c. The revised statutes, 2 R. S. 678,§ 59, were no doubt intended to embrace, and do embrace the pith and substance of both our previous statutes,, and also of the 39th Geo. 3. ch. 85.

Can it be believed that when the whole course of legislation on this subject has been aimed at the protection of the master or employer against the frauds of those necessarily entrusted with their property, the legislature, when revising and embodying previous statutes into a more simple form of enactment, should lose sight of the great object in view, and protect every person except those most liable to be defrauded ? The 60th

section shows that it was the intention of the legislature to go farther in favour of the master or employer than of other persons, by making it an offence to embezzle any instrument executed by such master, but > not yet issued; a note, for instance, drawn and signed for the purpose of being discounted, or delivered in the course of business, but not actually put in circulation.

It is very clear, therefore, that the offence consists in embezzling the money, goods, rights in action or other valuable security or effects whatever, belonging to any person other than the person guilty of the embezzlement,which shall have come to his possession, or under his care, by virtue of his employment as clerk or servant of a private person ; or as officer, agent, clerk or servant of any incorporated company. The next point arising upon the bill of exceptions is whether the defendant was properly convicted upon his own confessions made to his master, uncoroborated by any other fact or circumstance ?

Generally speaking, the admission of a fact renders it unnecessary to prove it. Of admissions or confessions there are several kinds: 1. A confession in open court of the prisoner’s guilt, which is conclusive, and renders any proof unnecessary ; 2. The next highest kind of confession is that which is made before a magistrate; 3. The lowest is that which is made to any other person.

All these confessions, if voluntary, are competent evidence, and it is said, by most writers on the law of evidence, that a confession out of court is sufficient evidence to warrant a conviction, although there is no positive proof aliunde that the offence was committed, 1 Macnally, 51. 1 Phil. Ev. 86. Archb. Cr. Pl. 55. It is stated by Mr. East, in his Crown Law, 1 East’s P.

C. 133, that in the case of Francis Francia, in 1716, it was agreed, at a conference of the judges, preparatory to his trial, among other things, that in all cases the confession of a criminal may be given in evidence against him; and that in cases of treason, if such confession be proved by two witnesses, it is proper evidence to be left to the jury. Mr. Justice Foster thought this decision wrong, though he admitted it might be too late to controvert the authority of it. He insists that the rule should never be carried further than to a confession made during the solemnity of an examination before a magistrate.

For he observes, hasty confessions made to persons having no authority to examine, are the weakest and most suspicious of all evidence; words are often misreported, and extremely liable to misconstruction, and withal, he says, this evidence is not, in the ordinary course of things, to be disproved by negative evidence, as proof of plain facts may be, and often is confronted.

It. will be found, I think, that however broadly judges and elementary writers have laid down the rule, yet most, if not all the reported cases show that very few convictions have taken place without some evidence that a crime has been committed, independent of the confession of the accused. The case of John Bernish, Foster’s Cr. L. 10, is an instance of a conviction upon the confession of the prisoner.

There was, however, one witness who proved him to have been in arms with the rebels; and the two witnesses who swore to his confession, also saw him among the officers of the rebels, who were confined apart from the common men, and he there gave in his name as a lieutenant. See Lambe’s case, 2 Leach, 625; Thomas’ case, id. 728 ; Wheeling’s case, 1 Leach, 349. In the case of Rex v. White, Russell & Ryan, 508, the defendants were indicted and tried for stealing four bushels of oats, the goods of William Pearce. On the trial, Pearce could not swear that he had lost any oats.

There was other evidence: Pearce found that the door of his granary had keen forcec|. Another witness saw two men coming from Pearce’s yard about two in the morning, each with a sack on his shoulders. Another swore that the prisoner White asked ^ can-y 0ats to a Mr. Johns, who swore that he bought oats at the time mentioned of White; and it was also proved that those oats were of the same kind with Pearce’s., The confessions of the prisoner before a magistrate were then produced and given in evidence, although Mr.

Justice Burrough doubted the propriety of it, as Pearce was unable to prove that a felony had been committed. The point was reserved for the judges, vvho'afterwards held the conviction right. Another prisoner was tried at the same time, (John Tippet,) for a similar offence, and upon similar testimony, together with his confession. The judges were of opinion that the conviction was right, as there was not only the confession but the evidence of Pearce, which made it probable that oats had been stolen, and also evidence that the door of the granary had been broken.

Most of the judges thought the confession alone sufficient; but they laid stress upon the fact that there was other evidence, though not sufficient, perhaps, to prove that a felony had been committed. So, too, in Rex v. Eldridge, Russell & Ryan, 440, the prisoner was convicted upon his confession for stealing a mare ; but it was proved that he had the mare in his possession, under very suspicious circumstances, and sold her for £12, she being worth £35. The judge who presided thought there was not evidence of a felony having been committed, independent of the confession which had been taken before a magistrate.

The case was referred to the judges, who were of opinion that there was sufficient evidence to confirm the confession, and that the conviction was right. Rex v. Falkner & Bond, Russell & Ryan, 481. The defendants were-convicted upon their confession of the robbery of one Halliday. Halliday did not appear upon his recognizance ; and there was evidence that Falkner had been desir-, ous of preventing Halliday’s appearing. The conviction was held right.

These convictions were in 1822 and 1823; and if the rule had been settled by previous cases, where was the necessity for producing any evidence beside the confessions ? The truth is, no court will ever rely upon the confession alone, when it is apparent that there is evidence aliunde to prove that an offence has been committed. In the case now before us it was manifest that there were witnesses not before the court, who could have given material testimony to prove facts essential to the body of the offence.

In all the cases in Russell Sf Ryan, an attempt was made to prove the felony by testimony other than the* confession of the prisoner; and in most of them the court were of opinion that the confession was sufficiently corroborated. In this case there was no corroboration ; no confession before a magistrate, nor to any person but the prosecutor, and then not under circumstances to show that he was charged with being guilty of a felony. In our opinion such a conviction ought not to be sustained. New trial granted.