People v. Sherman

10 Wend. 298

• Court: New York Supreme Court
• Decided: May 15, 1833
• Status: Published

Opinion

By the Court,

Sutherland, J.

The defendant was properly convicted under the count for embezzlement. The provision of the revised statutes, under which the count was framed, is sufficiently comprehensive to embrace this case. 2 R. S. 678, § 59. The defendant was the servant of Sprague & Demmon, and the money which he embezzled came into his possession, or under his care, by virtue of his employment as such servant, within the meaning of the act. He drove the stage of Sprague & Demmon from Lyons to Geneva, and Sprague & Demmon contracted with the collector of canal tolls at Lyons to send the tolls collected by him weekly to Geneva, and deposite them in the bank at that place, to the credit of the treasurer, for which they were to be paid 50 cents per package. A package had once before this been sent by the defendant, and it is to be inferred, though the fact is not expressly stated, that other drivers of Sprague & Dernmon had been in the habit of taking them.

The care and custody of packages of every description are a part of the ordinary duty of servants of this description, although it is not their principal business ; and it appears to me that it would defeat one very important object of the act to restrict its application to clerks or servants, whose principal or ordinary employment was the receiving and taking care of the money, goods, &c. of their employers. Neither the language nor spirit of the act require this restricted construction.

Motion for new trial denied.