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Nolan v. State

Brief Fact Summary.

Defendant was convicted of embezzlement and contends that evidence produced at trial makes the crime larceny and not embezzlement.

Synopsis of Rule of Law.

The crime of larceny is committed when an individual steals goods while in the possession of the owner.


Defendant, Nolan was the office manager of the Federal Discount Corporation, a company in the business of making loans and collections. Payments received by customers were placed in a cash drawer. At the end of the day, Nolan would take some of the cash from the drawer, and an accomplice would prepare a false report showing the daily receipts. Nolan claims that the evidence at trial proves he was guilty of larceny and not embezzlement.


Does the crime of larceny occur only when money is placed into an employer’s cash drawer prior to its fraudulent conversion?


Yes. Reversed as to the conviction on embezzlement.
The applicable embezzlement statute reads: “a servant who fraudulently embezzles money and takes the money into his possession, for his master or employer, shall be deemed to have feloniously stolen the same from his master or employer, although such money was not received into the possession of such master otherwise than by the actual possession of his servant.”

According to Wharton’s Criminal Law (12th edition), if the case is larceny at common law because the money was taken from the prosecutor’s possession, the charge for embezzlement fails. The embezzlement statutes were passed to cover new cases not falling within the common law range. If the goods were taken from the owner’s possession, the crime is larceny and not embezzlement.

Goods which have reached their destination are in the owner’s constructive possession, even though he may not yet have touched them. Thus, after such termination of transit, the servant who converts them is guilty of larceny and not embezzlement. In this case, Federal had provided a cash drawer in which money was deposited as received. Officers of the company also accepted payments and had access to the money drawer. The money was not taken by Mr. Nolan until after it was placed in the cash drawer and balanced at the end of the day. Therefore, the cash was in the possession of Federal when it was taken by the defendant. This constitutes the crime of larceny and not embezzlement. The case is remanded for further proceedings.


Judge Prescott concurring: This case can be decided by reference to the present Maryland embezzlement statute. An application of the facts in the record meets every element required in the statute to prove embezzlement. The majority of the court applies English decisions and other authorities to the holding because the money went into the drawers before its fraudulent conversion. Thus, the court tells individuals that if you steal your employer’s money before it is placed in a drawer (under your charge and control) you are guilty of embezzlement, but if you place the money in the drawer while in your control and then steal it, you are guilty of larceny. The result from such a policy is to allow a criminal to escape from punishment.


Judge Prescott feels that a court’s refinement of the differences between the elements of larceny and embezzlement in practical operation can result in the nullification of statutes.

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