or corporation, such officer shall be guilty of a felony. The provisions of this section shall apply to all persons who shall go out of office and fail or neglect to account to or deliver over to their successors in office or other persons lawfully entitled to receive the same all such moneys, funds and securities or property aforesaid. The punishment shall be imprisonment in the state's prison or county jail, or fine, in the discretion of the court.

Code, s. 1016; 1891, c. 241; 1876-7, c. 47.

This section does not embrace the unlawful appropriation of the property of private individuals, but is limited to the embezzlement of property held in trust for any city, county, etc. Connelly, 104–794.

Sec. 277 (3409). Treasurer of benevolent society.

If any treasurer or other financial officer of any benevolent or religious institution, society or congregation shall lend any of the moneys coming into his hands to any other person or association without the consent of the institution, association or congregation, to whom such moneys belong; or, if he shall fail to account for such moneys when called on, he shall be guilty of a misdemeanor, and punished by fine or imprisonment, or both, in the discretion of the court.

Code, s. 1017; 1879, c. 105.

If an officer of a benevolent association use the money of the association in his private banking business, without the knowledge or consent of the association and appropriate it to his own use with a fraudulent intent, he would be guilty of embezzlement, and neither the fact that he became insolvent and suspended his banking business, nor that he afterwards had an agreement with the society as to the time when he was to pay the indebtedness, would be any defense. Dunn, 138-672.

Where the money of a benevolent society was deposited by the defendant, who was its treasurer, in his private bank as a general deposit and put in general use as other bank deposits, with the consent of the society, the defendant is not guilty, though he became insolvent and could not settle on demand. Dunn, 138-672.

Two offenses are created by the statute; one the lending of the money of a benevolent or religious institution by the officers thereof without the consent of such institution, and the other the failure to account for such money. Dunn, 138-672.

An association organized solely for the benefit of its members is not a benevolent or religious one. Dunn, 134-663.

Where the treasurer of an association renders a statement of his receipts and expenditures this is a compliance with the requirement of the statute that he should render an account. Dunn, 134-663.

The words "benevolent" and "religious" qualify the words "society" and "congregation" as well as "institution." Dunn, 134-664.

Sec. 278 (3252). Indictment for embezzlement.

In indictments for embezzlement, except when the offense shall relate to a chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security; and such allegation, so far as regards the description of the property, shall be sustained if the offender shall be proved to have embezzled any amount, although the particular species of coin of valuable security of which such amount was composed shall not be proved.

Code, s. 1020; 1871-2, c. 145, s. 2.

Sec. 279 (3594). Officer failing to pay over fines, penalties, etc.

If any officer who receives or collects a fine, penalty or forfeiture in behalf of the state, or any tax imposed on licenses to retailers of wines, cordials, malt or spirituous liquors, and auctioneers, shall not, within thirty days after such reception or collection, pay over and account for the same to the treasurer of the county board of education for the benefit of the fund for common schools in such county, he shall be guilty of embezzlement, and may be punished not exceeding five years in the state's prison, and fined, at the discretion of the court.

Code, s. 3678; 1872-3; c. 144, subc. 6, ss. 6, 77; 1883, c. 136, s. 48.

INDICTMENT. An indictment under this section charging embezzlement in "willfully, knowingly and corruptly" failing to pay over a fine to the school fund, is sufficient without using the word "feloniously." Hill, -91—561.

Sec. 280 (5194). Fines go to school fund.

Whenever any officer, including justice of the peace, receives or collects a fine, penalty or forfeiture in behalf of the state, he shall, within thirty days after such reception or collection, pay over and account for the same to the treasurer of the county board of education for the benefit of the fund for establishment and maintaining the free public schools in such county. Whenever any fine or penalty is imposed by any officer, the said fine or penalty shall be at once docketed and shall not be remitted except for good and sufficient reasons, which shall be stated on the docket.

1905, c. 588, s. 87.

Sec. 281 (5195). Misappropriation of taxes deemed embezzlement.

Any officer, including justices of the peace, violating the preceding section or appropriating to his own use any state, county, school, city or town taxes shall be guilty of embezzlement, and upon conviction shall be punished by imprisonment in the state's prison for not less than six months nor more than five years, at the discretion of the court.

1905, c. 588, s. 88.

Sec. 282 (3410). Taxes.

If any officer appropriates to his own use the state, county, school, city or town taxes, he shall be guilty of embezzlement, and may be punished not exceeding five years in the state's prison, at the discretion of the court.

Cod, s. 3705; 1883, c. 136, s. 49.

EMBRACERY.

The indictment charged that defendant, who was counsel for certain defendants on trial for larceny, after the jury had retired, approached the officer in charge of the jury and inquired as to their opinion, saying that "he had come to give them instructions," and asked the officer if any instructions were needed to let him know, and he would give them: Held, that the indictment was fatally defective for failure to charge an attempt to carry into effect the corrupt purpose. Brown, 95-685.

Embracery consists in such practices as tend to unduly influence the administration of justice by improperly working upon the minds of the jurors. To constitute the offense there must be an attempt to carry into effect the corrupt purpose-to form the purpose and give it expression merely in words is not sufficient. Brown, 95-685.

ENTERING GRAND JURY ROOM.

The solicitor has no authority to enter the grand jury room. None but witnesses are allowed to enter there. Lewis v. Coms., 74-198.

ENTICING MINORS.

Sec. 283 (3630). Enticing minors out of the state.

If any person shall employ and carry beyond the limits of this state any minor, or shall induce any minor to go beyond the limits of this state for the purpose of employment without the consent in writing, duly authenticated, of the parent, guardian or other person having authority over such minor, he shall be guilty of a misdemeanor, and on conviction thereof shall be fined not less than five hundred and not more than one thousand dollars for each offense. The fact of the employment and going out of the state of the minor, or of the going out of the state by the minor, at the solicitation of the person for the purpose of employment, shall be prima facie evidence of knowledge that the person employed or solicited to go beyond the limits of the state is a minor.

1891, c. 45.

ENTICING SERVANTS.

Sec. 284 (3365). Enticing servant to leave master.

If any person shall entice, persuade and procure any servant by indenture, or any servant who shall have contracted in writing or orally to serve his employer, to unlawfully leave the service of his master or employer; or if any person shall knowingly and unlawfully harbor and detain, in his own service and from the service of his master, or employer, any servant who shall unlawfully leave the service of such master, or employer, then, in either case, such person and servant shall be guilty of a misdemeanor and fined not exceeding one hundred dollars or imprisoned not exceeding six months.

Code, ss. 3119, 3120; 1866, c. 58; 1866-7, c. 124; 1881, c. 303.

SERVANTS LEAVING MASTER'S EMPLOYMENT.-A servant is not indictable under this statute for willfully leaving the employment of one whom he had agreed to serve. The statute has reference only to persons enticing servants to leave the service of their employer. Daniel, 89-553.

TENANTS.-Where a person agrees to cultivate land for another, and, in addition to the payment of the stipulated rent, to work for the other whenever he can leave his own crop and is needed by the other, the relation of master and servant is not created by the contract, but that of landlord and tenant, and a person employing the tenant is not guilty of enticing a servant. Hoover, 107-795.

INDICTMENT. The indictment is sufficient if it alleges a contract with the servant, or those who may be authorized to contract on his behalf, without specifying whether it was in writing or oral; nor is it necessary to set forth the means by which the enticing was accomplished where the words employed in the statute are used in the indictment in describing the offense. Harwood, 104-724.

INFANTS. A stranger or third person who unlawfully interferes and induces a servant to leave his employer, is guilty, though the servant is an infant. The contract is voidable only at the election of the infant, and can not be treated as a nullity by third persons. Harwood, 104-724.

CONSTITUTION.-This statute is not in conflict with the constitution because limited to laborers and servants. Harwood, 104-724.

PARENTS NOT GUILTY.-A parent, who commands his minor son, who has entered into the contract with his employer without his parents' consent to quit work and leave his employer, is not guilty under the act. 104-771.

Anderson,

ESCAPE.

Sec. 285 (3577). Escape; officer indictable for; proof.

If any person charged with a crime or sentenced by the court upon conviction of any offense shall be legally committed to any sheriff, constable or jailer, or shall be arrested by any sheriff, deputy sheriff or coroner acting as sheriff, by virtue of any capias issu

ing on a bill of indictment information, or other criminal proceeding, and such sheriff, deputy sheriff, coroner, constable or jailer, willfully or negligently, shall suffer such person, so charged, or sentenced and committed, to escape out of his custody, the sheriff, deputy sheriff, coroner, constable or jailer so offending, being thereof convicted, shall be removed from office, and fined or imprisoned, or both, at the discretion of the court before whom the trial may be had; and in all such cases it shall be sufficient, in support of the indictment against such sheriff or other officer, to prove that such person so charged or sentenced was committed to his custody, and it shall lie upon the defendant to show that such escape was not by his consent or negligence, but that he had used all legal means to prevent the same, and acted with proper care and diligence: Provided, that such removal of a sheriff shall not affect his duty or power as a collector of the public revenue, but he shall proceed on such duty and be accountable, as if such conviction and removal had not been had.

Code, s. 1022; R. C., c. 34, s. 3; 1791, c. 343 s. 1; 1905, c. 350.

INDICTMENT.—An indictment charging that defendant "negligently" permitted the escape is sufficient without using the word "willfully." The use of the disjunctive "or" shows that the mischief intended to be suppressed is two-fold; one where the escape is the result of negligence, and the other where it is the willful act of the officer in promoting the escape. McLain, 104— 894.

An indictment for assisting prisoners to break jail, which does not allege that such prisoners had committed any offense, or state facts or circumstances from which the court can see that they were lawfully in prison, is fatally defective. Jones, 78-420.

VARIANCE.-Where the charge is that defendant escaped from arrest made under an indictment against him and another for an affray, and the proof is that the indictment was for assault and battery, the variance is immaterial, since the gravamen of the charge is the escape from custody, and, besides, one may be convicted of assault and battery under a bill charging an affray. Brown, 82-585.

EVIDENCE-BURDEN ON DEFENDANT TO SHOW WANT OF NEGLIGENCE.-Where the escape is proven or admitted, the burden is shifted to defendant to show that there was no negligence on his part, and that he used all legal means for the safe keeping of the prisoner. Hunter, 94-829.

FAILURE TO HANDCUFF PRISONER.-The failure to handcuff the prisoner is not per se negligence, but the jury must decide whether the failure to do so contributed to the escape, and whether defendant had used due diligence in attempting to guard the prisoner without them. Hunter, 94-829.

ESCAPE FROM ARREST ON BASTARDY WARRANT.-An indictment lies at common law, independent of the statute, against an officer who permits the escape of one arrested on a bastardy warrant. Ritchie, 107-857.

ESCAPE PENDING APPEAL, CASE CONTINUED.-Where a defendant convicted of larceny escapes pending the appeal, the appeal will not be dismissed, but will be continued, to be called when defendant shall be retaken. Pickett, 94–971. HEARING IN SUPREME COURT AFTER PRISONER'S ESCAPE.-Where a person who has been convicted of an offense appeals from the judgment and escapes