Embezzlement

A. Origins

A problem with common law larceny is that it does not cover people who are in lawful possession of another’s property and who then convert the property to their own ends. Such actions became more prevalent in the 19th century, because employers allowed employees to receive money or other property from customers or clients. Since the property was in the possession of the employee, the employee could not be convicted of larceny if she were to feloniously convert it. In response to this gap in the law, England enacted the first embezzlement statutes. At first, only certain categories of people were subject to these statutes, but over time they were expanded and generalized.

B. Elements

Generally, embezzlement is defined by statute as fraudulent conversion by one who is already in lawful possession of another’s property.

Mnemonic: COIN POP

1. Conversion
Conversion is the receipt of and the withholding or applying of another’s property. It has also been defined as acting upon property in such a way that undermines a trust which is the foundation of an owner’s willing transfer of possession.

2. Intent
Embezzlement requires a conversion of property with felonious intent; intent to convert another’s property to one’s own or a third party’s use and benefit. Embezzlement is a completed offense as soon as property is converted with felonious intent.

a. Intent to Repay
Intent to repay does not negate felonious intent, because embezzlement’s specific intent does not include permanent deprivation.

b. Claim of Right
Claim of right does negate felonious intent because one does not intend to take from the possession of another. Rather, one believes that the property is one’s own and that the other person only has custody of the property.