embezzlement .doc

8/9/2019 Embezzlement .doc

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Embezzlement

The fraudulent conversion of another's property by a person who is in a position of trust,such as an agent or employee.

Embezzlement is distinguished from swindling in that swindling involves wrongfullyobtaining property by a false pretense, such as a lie or trick, at the time the property istransferred, which induces the victim to transfer to the wrongdoer title to the property.

Nature

There was no crime of embezzlement under the Common Law. It is a statutory crime thatevolved from Larceny. hereas larceny re!uires a felonious trespassory taking ofproperty at the outset, embezzlement is a wrongful appropriation subse!uent to anoriginally lawful taking. Embezzlement is, therefore, a modi"cation of larceny designedto cover certain fraudulent acts that do not come within its scope. #lthough they aremutually e$clusive crimes, larceny and embezzlement do overlap slightly under statutesin some states.

Embezzlement was created by the English legislature, which designated speci"c personswho might be liable for the o%ense. These were essentially persons entrusted withanother&s property, such as agents, attorneys, bankers, and corporate o'cers.

The English de"nition of the o%ense is followed in the (nited )tates. )tatutes do notusually list the persons who might be liable but, instead, generally describe the o%enderas a person entrusted with, or in possession of, another&s property.

Property

The type of property that must be converted is governed by statute. *enerally, propertyis de"ned as including money, goods, chattels, or anything of value. Intangible +ersonal+roperty Commercial +aper, such as checks, promissory notes, bonds, or stocks andwritten documents, such as deeds or contracts, may also be the sub-ect ofembezzlement.

(nder some statutes, property consists of anything that can be the sub-ect of larceny. Inother states, however, the property re!uirement for embezzlement is broader. ore$ample, the statute might punish the conversion of both real and personal property.

In some states, the embezzlement of public property or public funds is a separateo%ense. The o%ense is characterized by the manner in which the money is received. #court clerk who receives bail money is a recipient of public money and the person can beliable if such money is wrongfully converted by him or her.

The property sub-ect to embezzlement must have some value, even though value is notan element of the o%ense. #lthough a check without a re!uired endorsement does nothave value, the fact that the endorsement can be forged gives it su'cient value to makeit a sub-ect of embezzlement.

Elements
http://legal-dictionary.thefreedictionary.com/Common+Lawhttp://legal-dictionary.thefreedictionary.com/Larcenyhttp://legal-dictionary.thefreedictionary.com/Personal+Propertyhttp://legal-dictionary.thefreedictionary.com/Personal+Propertyhttp://legal-dictionary.thefreedictionary.com/Commercial+Paperhttp://legal-dictionary.thefreedictionary.com/Larcenyhttp://legal-dictionary.thefreedictionary.com/Personal+Propertyhttp://legal-dictionary.thefreedictionary.com/Personal+Propertyhttp://legal-dictionary.thefreedictionary.com/Commercial+Paperhttp://legal-dictionary.thefreedictionary.com/Common+Law


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)tatutes governing the o%ense vary widely throughout the states. To determine e$actlywhat elements comprise the o%ense, it is necessary to e$amine the particular statuteapplicable.

Elements common to embezzlement are as follows/ 012 the property must belong to aperson other than the accused, such as an employer or principal 032 the property mustbe converted subse!uent to the defendant&s original and lawful possession of it 042 thedefendant must be in a position of trust, so that the property is held by him or her

pursuant to some "duciary duty and 052 the defendant must have an intent to defraudthe owner at the time of the conversion.OwnershipThe principal or employer must bethe owner of the property embezzled by an agent or employee at the time the o%ense iscommitted. (nder many statutes, the ownership re!uirement is e$pressed as theproperty of another. It is su'cient if any person, other than the defendant, owns theproperty and it does not matter who has title to it or that it is owned by more than oneperson.

6urisdictions di%er on the !uestion of whether a person can embezzle funds belonging toa spouse. In states that retain the spousal privilege, a person can be prevented fromtestifying to a crime against a spouse therefore, spousal embezzlement will not be

prosecuted.

(nless a statute provides otherwise, co7owners of property, such as -oint tenants ortenants in common, cannot be guilty of the o%ense with respect to the property that is-ointly owned. # co7owner who wrongfully transfers -ointly owned property converts hisor her own property as opposed to that of another therefore, there is no conversion. If aperson has any interest in property held -ointly with another, the person cannot beconvicted of the o%ense relating to that property. or e$ample, a co7owner of anautomobile cannot be guilty of embezzling it if both owners have an e!ual right topossession. # number of states, however, have statutes punishing embezzlement by co7owners, such as partners who wrongfully convey partnership assets.

In most states, an agent authorized to collect money for his or her principal and to keepa certain amount as commission is guilty of embezzlement if he or she wrongfullytransfers the entire sum collected.

Possession or Custody of Property+ossession is the essential element fordistinguishing between embezzlement and larceny. hile larceny re!uires that the thieftake the property out of the victim&s possession, the person must lawfully possess theproperty at the time that it is converted for embezzlement.

It is not necessary for the defendant to have physical or e$clusive possession. It issu'cient if the person has constructive possession, a form of possession that is notactual but that gives the holder power to e$ercise control over the property eitherdirectly or through another person. #lternatively, mere custody is insu'cient forembezzlement. If a master puts a servant in charge of property for purposes of guardingor caring for it, the master is considered to have constructive possession of suchproperty while the servant has mere custody. # servant who wrongfully converts propertyover which he or she has custody may be guilty of larceny, but not embezzlement.

The fact that an accused person lawfully receives property at di%erent times will notnegate an embezzlement charge provided all other elements of the o%ense are met.


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Trust Relationship)ince the o%ense is aimed at punishing persons who convertproperty for their own use when possession is lawfully ac!uired, prosecution is limited toinstances where the parties are in a "duciary, or trust, relationship.

*enerally, a debtor and a creditor, or an agent and a 8roker, do not have a "duciaryrelationship su'cient for the o%ense. There must be some further indication that oneperson has a duty to care for and e$ert some control over the other&s property. The mostcommon type of trust relationships are those e$isting among corporate o'cers, partners,

and employers and their employees.

Conversion of Property

Conversion is an act that interferes with an owner&s right of possession to his or herproperty. or purposes of embezzlement, conversion involves an unauthorizedassumption of the right of ownership over another&s property. It may, for e$ample, occurwhen a person is entrusted with property for one purpose and uses it for anotherpurpose without the consent of the owner. *enerally, any type of conversion that occursafter a person obtains lawful possession of property is su'cient.

#lthough a failure to return property is evidence of conversion, it does not necessarilyconstitute embezzlement9absent proof of criminal intent. :owever, if a statute imposesan absolute duty to return property, the failure to do so is embezzlement, provided allother elements are met.

In certain circumstances, a demand is re!uired before a person can claim that his or herproperty has been converted. (sually, no demand is re!uired if it would be futile, such aswhen an accused has ;ed the -urisdiction with the property. If, however, there is node"nite time speci"ed for the return of the property, a demand might be necessary. Thedemand is merely a re!uest that the wrongdoer return the property. The re!uest doesnot have to be formal, and there is no re!uirement that the word demandbe used.

hen an agent is given authority to sell property and thereafter converts the proceeds ofthe sale, he or she is guilty of embezzlement of the proceeds, as distinguished from theproperty sold. # person with authority to cash a check but who converts the cash is,likewise, guilty of embezzlement of the cash and not of the check. The person, might,however, be guilty of embezzling the check if at the time of cashing it, the person has afraudulent intent to convert it.

IntentIn a ma-ority of -urisdictions, a fraudulent intent to deprive the owner of his or herproperty is necessary for embezzlement. It is characterized as intent to willfully andcorruptly use or misapply another&s property for purposes other than those for which theproperty is held. The defendant&s motive is not relevant to the intent element.

#lthough it is not essential that the intent e$ist at the time possession is "rst taken, itmust be formed at the time the property is converted. The o%ense is not committed ifthere is an intent to return the speci"c property taken within a reasonable period of time.If, however, there is a fraudulent intent at the time the property is converted, asubse!uently formed intent to return the property will not e$cuse the crime. #n o%er torestore the property will not bar a prosecution for embezzlement. )ome courts haveheld, however, that an o%er of restoration can be considered on the !uestion of intent. #person who believes that the property to be transferred is his or hers is considered to act
http://legal-dictionary.thefreedictionary.com/Brokerhttp://legal-dictionary.thefreedictionary.com/Broker


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pursuant to a claim of right. The possibility that the belief is mistaken, or unreasonable,is not important. If one has a *ood aithbelief that one has a right to withhold propertyor devote it to one&s own use, the conversion cannot be fraudulent, and there is noembezzlement.

The validity of a claim of right is a


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Philippine Laws and Cases - tty! "anuel #! Laserna #r!

$uali%ed theft de%ned& proper penalty e'plained

The elements of the crime of theft as provided for in #rticle 4>?@of the Aevised

+enal Code are as follows/ 012 that there be taking of personal property 032 that said

property belongs to another 042 that the taking be done with intent to gain 052 that the

taking be done without the consent of the owner and 0B2 that the taking be

accomplished without the use of violence against or intimidation of persons or force

upon things.1>Theft becomes !uali"ed when any of the following circumstances under

#rticle 41>11is present/ 012 the theft is committed by a domestic servant 032 the theft is

committed with grave abuse of condence 042 the property stolen is either a motor

vehicle, mail matter or large cattle 052 the property stolen consists of coconuts taken

from the premises of a plantation 0B2 the property stolen is "sh taken from a "shpond or

"shery and 02 the property was taken on the occasion of "re, earth!uake, typhoon,

volcanic eruption, or any other calamity, vehicular accident or civil disturbance.13

:ere, the prosecution was able to prove beyond reasonable doubt that the amount

of +D@D,1?D.?B taken does not belong to petitioner but to CCI and that petitioner took it

without CCIFs consent and with grave abuse of con"dence by taking advantage of her

position as accountant and bookkeeper. The prosecutionFs evidence proved that

petitioner was entrusted with checks payable to CCI or iva by virtue of her position as

accountant and bookkeeper. )he deposited the said checks to the -oint account

maintained by CCI and 6e%erson Tan, then withdrew a total of+D@D,1?D.?B from said

-oint account using the pre7signed checks, with her as the payee. In other words, the

bank account was merely the instrument through which petitioner stole from her

employer CCI.

$ $ $

e "nd no cogent reason to disturb the above "ndings of the trial court which werea'rmed by the C# and fully supported by the evidence on record. Time and again, theCourt has held that the facts found by the trial court, as a'rmed in totoby the C#, areas a general rule, conclusive upon this Court14in the absence of any showing of grave

abuse of discretion. In this case, none of the e$ceptions to the general rule onconclusiveness of said "ndings of facts are applicable.15The Court gives weight andrespect to the trial courtFs "ndings in criminal prosecution because the latter is in abetter position to decide the !uestion, having heard the witnesses in person andobserved their deportment and manner of testifying during the trial.1B#bsent anyshowing that the lower courts overlooked substantial facts and circumstances, which ifconsidered, would change the result of the case, this Court gives deference to the trialcourtFs appreciation of the facts and of the credibility of witnesses.
http://attylaserna.blogspot.com/http://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.htmlhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote9symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote10symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote11symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote12symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote13symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote14symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote15symhttp://attylaserna.blogspot.com/http://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.htmlhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote9symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote10symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote11symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote12symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote13symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote14symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote15sym


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Goreover, we agree with the C# when it gave short shrift to petitionerFs argumentthat full ownership of the thing stolen needed to be established "rst before she could beconvicted of !uali"ed theft. #s correctly held by the C#, the sub-ect of the crime of theftis any personal property belonging to another. :ence, as long as the property taken doesnot belong to the accused who has a valid claim thereover, it is immaterial whether saido%ender stole it from the owner, a mere possessor, or even a thief of the property.1Inany event, as stated above, the factual "ndings of the courts a !uo as to the ownershipof the amount petitioner stole is conclusive upon this Court, the "nding being ade!uately

supported by the evidence on record.

:owever, notwithstanding the correctness of the "nding of petitionerFs guilt, amodi"cation is called for as regards the imposable penalty. =n the imposition of thecorrect penalty, People v. Mercado1Dis instructive. +ursuant to said case, in thedetermination of the penalty for !uali"ed theft, note is taken of the value of the propertystolen, which is +D@D,1?D.?B in this case. )ince the value e$ceeds +33,>>>.>>, the basicpenalty isprision mayorin its minimum and medium periods to be imposed in thema$imum period, that is, eight 0?2 years, eight 0?2 months and one 012 day to ten 01>2years ofprision mayor.

To determine the additional years of imprisonment to be added to the basic penalty, theamount of+33,>>>.>> is deducted from+D@D,1?D.?B, which yields a remainderof +DDB,1?D.?B. This amount is then divided by +1>,>>>.>>, disregarding any amountless than+1>,>>>.>>. The end result is that DD years should be added to the basicpenalty. :owever, the total imposable penalty for simple theft should not e$ceed 3>years. Thus, had petitioner committed simple theft, the penalty would be 3> yearsof reclusion temporal. #s thepenalty for !uali"ed theft is two degrees higher, the trialcourt, as well as the appellate court, should have imposed the penalty ofreclusionperpetua.H
http://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote16symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote17symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote16symhttp://sc.judiciary.gov.ph/jurisprudence/2012/january2012/176298.html#sdfootnote17sym

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