or any other appliances, machinery or property of any person engaged in furnishing gas to consumers unless employed by or acting under the authority and direction of such person; or,

7. Open or cause to be opened, or reconnect, or cause to be reconnected any valve lawfully closed or disconnected by a district steam corporation; or,

8. Turn on steam or cause it to be turned on, or re-enter any premises when the same has been lawfully stopped from entering such premises.

1901, c. 735.

Sec. 268 (3667). Engines, boilers, machinery; tampering with.

If any person shall willfully turn out water from any boiler or turn the bolts of any engine or boiler, or meddle or tamper with such boiler or engine, or any other machinery in connection with any boiler or engine, causing loss, damage, danger, or delay to the owner in the prosecution of his work, he shall be guilty of a misdemeanor.

1901, c. 733.

ELKS.

Sec. 269. Unlawful to wear badge of.

Any person who willfully wears the badge, insignia or button of the Benevolent and Protective Order of Elks of the United States of America, incorporated in conformity with the Revised Statutes of the United States, relating to the District of Columbia, enacted the nineteenth day of June, one thousand eight hundred and ninetyfive, a benevolent and social organization which has existed continuously for over forty years in the United States, or willfully uses the name of such order or organization, the titles of its officers, or its insignia, ritual, or ceremonies, unless entitled to use or wear the same under the constitution and by-laws, rules and regulations of such order, shall be deemed guilty of a misdemeanor, and shall, upon conviction, be punished by a fine of fifty dollars or imprisoned for thirty days, in the discretion of the Court.

1907, c, 968.

EMBALMERS.

Sec. 270 (3644). Embalming without license.

If any person shall practice or hold himself out as practicing the art of embalming, without having complied with the provisions of the law as to license, he shall be guilty of a misdemeanor, and

upon conviction thereof shall be fined not less than fifty nor more than one hundred dollars for each offense.

1901, c. 338, s. 14.

EMBEZZLEMENT.

Sec. 271. (3406). Property in possession by virtue of office or employment. If any person exercising a public trust or holding a public office, or any guardian, administrator, or executor, or any officer or agent of a corporation, or any agent, consignee, clerk, servant (except apprentices, and other persons under the age of sixteen years) of any person, shall embezzle or fraudulently or knowingly and willfully misapply or convert to his own use, or shall take, make way with or secrete, with intent to embezzle or fraudulently or knowingly and willfully misapply or convert to his own use any money, goods or other chattels, bank note, check or order for the payment of money issued by or drawn on any bank or other corporation, or any treasury warrant, treasury note, bond or obligation for the payment of money issued by the United States or by any state, or any other valuable security whatsoever belonging to any other person or corporation, which shall have come into his possession or under his care, he shall be guilty of felony, and punished as in cases of larceny.

Code, s. 1014; 1889, c. 226; 1891, c. 188; 1897, c. 31; 1871-2, c. 145, s. 2; 21 Hen. VII., c. 7; 39 Geo. III., c. 85; 7 and 8 Geo. IV., c. 39, s. 47; 24 and 25 vic., c. 96, s. 68.

INDICTMENT. The indictment must allege that defendant is not an apprentice nor within the age of sixteen years. Lanier, 88-658.

The omission of the words "with force and arms," is immaterial. Harris, 106-682.

Where an indictment charges several distinct offenses in different counts, whether felonies or misdemeanors, the state may be required to elect. Harris, 106-682.

INDICTMENT-MISJOINDER.-Where two persons are charged with embezzlement in one count, and in another count one of them is charged with the same offense, this is not a misjoinder, since the latter count, being embraced in the first, is mere surplusage. Harris, 106-682.

CHARGING BOTH EMBEZZLEMENT AND LARCENY.-Where a count for embezzlement contains also a charge of larceny, the charge of embezzlement will be upheld as good and that of larceny treated as surplusage. Harris, 106-682.

NOT NECESSARY TO SHOW THAT PROPERTY WAS COMMITTED TO DEFENDANT'S CUSTODY. It is not necessary to aver or prove that the property alleged to have been embezzled had been committed to the custody of defendant, nor any breach of trust or confidence except that which grows out of the relation between the owner and servant or agent. Wilson, 101-730.

AVERMENT THAT DEFENDANT WAS OVER SIXTEEN.-An averment that defendant was not "within the age of eighteen years" is a sufficient negative that he was under sixteen. Wilson, 101-730.

PUBLIC OFFICERS.-This section does not extend to public officers, such as clerks of the superior court and sheriffs. Connelly, 104-794.

(This decision was made before the amendment of 1891, which inserted the words "public officer, clerk of the superior court," etc.)

MEANING OF EMBEZZLEMENT.-To "embezzle" means not only to "appropriate to one's own use," but also to "misappropriate fraudulently." Foust, 114-842.

NOT NECESSARY TO APPROPRIATE TO OWN USE.-Where the indictment charged that defendant "did convert to his own use and embezzle" a check, an instruction that he was guilty if he received the check and misappropriated it fraudulently, whether for his own benefit or not, was proper. Foust, 114— 842.

RESTORATION.-The fact that a party accused of embezzlement intended to restore the property embezzled, or even that the loss has been made good, does not constitute a defense to a criminal prosecution for the embezzlement. Summers, 141-841.

In an indictment for embezzlement where defendant testified that he had in his pocket the amount claimed to have been embezzled and exhibited the money, the court properly excluded a question as to whether the defendant was willing to deposit the money in the clerk's office to await the termination of the civil litigation about the matter. Summers, 141-841.

CONTRACT-PURCHASER.-A contract by which defendant was to get out locust pins from timber on prosecutor's land, and haul and sell the pins and give the prosecutor one-half the net profits, makes the defendant a purchaser of the pins, and he can not be indicted for embezzlement of the money arising from their sale. Barton, 125—703.

One who makes locust pins under a contract by which he is to haul them and pay the owner of the timber one-half the net profits is not guilty of embezzlement where he sells the pins and pays the owner nothing. Barton, 125-702.

LANDLORD AND TENANT.-Landlord and tenant are not embraced in the statute creating the offense of embezzlement. Keith, 126–1114.

A landlord who sells the crop and refuses to account with his tenant for the proceeds is not guilty of embezzlement. Keith, 126-1114.

Larceny—DISTINCTION.-The difference between larceny and embezzlement is that in larceny there must be a trespass, while that is not necessary in embezzlement. McDonald, 133-683.

INTENT.-An appropriation by defendant of money entrusted to him to his own use does not raise a presumption that it was with fraudulent intent. McDonald, 133-682.

Embezzlement is a statutory and not a common law offense. McDonald, 133-683.

INTENT-BURDEN ON STATE.-Even where a conversion is admitted or shown the burden is on the state to show an intent to defraud beyond a reasonable doubt. McDonald, 133-680.

BURDEN. In an indictment for embezzlement the burden is on the state to prove beyond a reasonable doubt the felonious intent. Summers, 141-841. The fraudulent intent is an essential element in embezzlement, and is peculiarly a question for the jury. Dunn, 138-672.

INCORPORATED SOCIETY, FUNDS OF.-A member of an incorporated society who receives money of the society in trust as a fiduciary, may be indicted for embezzlement of the money entrusted to him, and the fact that he is one of the joint owners of the money will not shield him. Dunn, 134-669.

PARTNERSHIP SALE OF MULES.-Where there is evidence that the defendant entered into a contract in another state to bring a car load of mules into this state and sell them for the prosecutor, and, after deducting all expenses, he was to receive one-half of the net profits as his compensation, and that he brought several car loads into this state and sold them for the prosecutor, and at the termination of the business he was short in his returns, a demurrer to the evidence was properly overruled. Blackley, 138–620.

DEMAND.-A demand is not necessary to support a prosecution for embezzlement. Blackley, 138-620.

BURDEN NOT ON STATE AS TO AGE OR APPRENTICESHIP.-It is not incumbent on the state to prove that the defendant is not an apprentice, nor under the age of 16 years, though these are necessary allegations in the indictment. Such facts simply show a status, peculiarly within the knowledge of the defendant, and constitute a defense to be shown by him. Blackley, 138–620.

PROPERTY RECEIVED IN ANOTHER STATE, CONVERTED IN THIS.-The fact that the contract under which the defendant received the property of his principal was made in another state, makes no difference where the conversion took place in this state. Blackley, 138–621.

WHAT NECESSARY TO CONVICT.-Four things are necessary to a conviction for embezzlement: (1) that the defendant was the agent of the prosecutor; (2) that he received the property of his principal by the terms of his employment; (3) that he received it in the course of his employment; (4) that e converted it to his own use knowing it was not his own. Blackley, 138–

620.

Sec. 272 (3403). By railroad officers.

If any president, secretary, treasurer, director, engineer, agent or other officer of any railroad company shall embezzle any moneys, bonds or other valuable funds or securities, with which such president, secretary, treasurer, director, engineer, agent or other officer shall be charged by virtue of his office or agency, or shall in any way, directly or indirectly, apply or appropriate the same, for the use or benefit of himself, or any other person, state, or corporation, other than the company of which he is president, secretary, treasurer, director, engineer, agent or other officer, for every such offense the person so offending shall be guilty of a felony, and on conviction in the superior or criminal court of any county through which the railroad of such company shall pass, shall be imprisoned in the state's prison not less than three nor more than ten years, and fined not less than one thousand nor more than ten thousand dollars. Code, s. 1018; 1870-1, c. 103, s. 1.

Sec. 273 (3404). Conspiracy for.

If any person shall agree, combine, collude, or conspire with the president, secretary, treasurer, director, engineer or agent of any railroad company to commit any offense specified in the preceding section, such person so offending shall be guilty of a felony, and on conviction in the superior or criminal court of a county through which the railroad of any company against which such offense

may be perpetrated passes, shall be imprisoned in the state's prison for not less than three nor more than ten years, and fined not less than one thousand nor more than ten thousand dollars.

Code, s. 1019; 1870-1, c. 103, s. 2.

Sec. 274 (3405). Partner, surviving, converting assets.

If any surviving partner shall willfully and intentionally convert any of the property, money or effects belonging to the partnership to his own use, and refuse to account for the same on settlement, he shall be guilty of a felony, and upon conviction shall be punished by fine or imprisonment in the state's prison in the discretion of

the court.

1901, c. 640, s. 9.

Sec. 275 (3407). State's bonds and securities by officer.

If any officer, agent or employee of the state, or other person having or holding in trust for the same any bonds issued by said state, or any security, or other property and effects of the same, shall embezzle or knowingly and willfully misapply or convert the same to his own use, or otherwise willfully or corruptly abuse the said trust, such offender and all persons aiding and abetting, or otherwise assisting therein, shall be guilty of a felony, and fined not less than ten thousand dollars, or imprisoned in the state's prison not less than twenty years, or both, at the discretion of the court.

Cod, s. 1015; 1874-5, c. 52.

Sec. 276 (3408). Trust funds by officers.

If any officer, agent, or employee of any city, county, or incorporated town, or of any penal, charitable, religious or educational institution; or if any person having or holding any moneys or property in trust for any city, county, incorporated town, penal, charitable, religious or educational institution, shall embezzle or otherwise willfully and corruptly use or misapply the same for any purpose other than that for which such moneys or property is held, such person shall be guilty of a felony, and fined and imprisoned in the state's prison in the discretion of the court. If any clerk of the superior court, any sheriff, treasurer, register of deeds or other public officer of any county or town of the state shall embezzle or wrongfully convert to his own use, or corruptly use, or shall misapply for any purpose other than that for which the same are held, or shall fail to pay over and deliver to the proper persons entitled to receive the same when lawfully required so to do, any moneys, funds, securities or other property which such officer shall have received by virtue or color of his office in trust for any person