Urciolo v. State

O’Donnell, J., delivered the opinion of the Court. The appellant, Raphael Urciolo, an attorney in the District of Columbia, was charged in two indictments returned in 1970 by a grand jury in Anne Arundel County; 1 upon ⁶⁰⁹ removal of the cases to the Circuit Court for Howard County he was convicted in a nonjury trial (by Mayfield, J.) of having feloniously embezzled from John Rogers currency in the amount of $1,788.53 in violation of Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 129. 2 His conviction arose out of the conversion of the partial proceeds from a real estate settlement for a tract of land in Anne Arundel County. We will not here attempt to set out fully the labyrinthian, episodic, myriad of facts concerning the history of the property, or the appellant’s complete involvement therewith, but will content ourselves with recounting only so much of the background data as is directly relevant to the issues now before us. 3 Following a tax sale in 1932, John J. Rogers and his wife acquired a 48 acre tract of land from the County Commissioners of Anne Arundel County; in September 1963 an option to purchase the property, expiring on March 24, 1965, was granted to Arthur J. McGinnis.

In 1964 Helen Clarke, a “strawman,” on behalf of Thomas E. Chance, who had obtained a deed from the heirs of the record owner at the time of the tax sale, filed suit against the Rogerses in the Circuit Court for Anne Arundel County to void the tax sale. The Rogerses retained the appellant to represent them in those equity proceedings and Winson D. Gott, Jr., an Annapolis attorney specializing in realty law, became co-counsel, since the appellant was not a licensed Maryland practitioner. With misgivings about the validity of the tax deed and anticipating a lack of success in their defense of establishing adverse possession, the Rogerses, upon the advice of the appellant and before the resolution of the equity proceedings (which voided the tax sale deed), entered into an agreement with Helen Clarke in 1964 which provided that upon the ⁶¹⁰ enrollment of the equity decree the Rogerses and Clarke would jointly convey the property to two trustees, Joseph J. Urciolo (appellant’s brother), who would represent the Rogerses’ interest, and Thomas E. Chance, to represent the Clarke (and his own) interests. Because of the outstanding option in favor of McGinnis these “trustees” were to hold title to the property without the deed reflecting their fiduciary status and were to sell it as they might be directed by the beneficiaries, but not before the expiration of McGinnis’ option.

Pursuant to that agreement Mr. and Mrs. Rogers and Helen Clarke, on March 24, 1965, deeded the property to Joseph Urciolo and Thomas Chance as joint tenants; they promptly entered into a contract for the sale of the property to one Frank Calcara and agreed that the Urciolo Realty Company (although not a licensed realtor in Maryland) would receive a ten percent sales commission. On May 26, 1965 the property was conveyed to a “combine” or partnership comprised of John V. Arban, Pascal Della Badia (two clients of Urciolo) and Florence E. Urciolo (appellant’s wife), organized by the appellant, for a consideration of $94,600, as a result of the assignment by Calcara to the syndicate of his contract to purchase. In April 1965, because of Mrs. Rogers’ deteriorating health, the Rogerses sold his business and their dwelling and departed for Arizona, ignorant of the contract of sale and its assignment. At the time of their departure the Rogerses entrusted the appellant with all their business affairs concerning the property.

(Mrs. Rogers died in Arizona in July 1965.) Although the syndicate had not raised all the cash required, it appeared that Chance was due to leave the State and settlement was held in Annapolis on May 25 or 26, 1965, at the offices of the Capitol Savings and Loan Association with Winson D. Gott, Jr., acting as “settlement officer.” Three sparse memoranda evidence the settlement; one prepared by Gott in advance, dated May 24, set forth the purchase price at $94,600, with $23,000 payable in cash at the settlement ($1,000 having been reportedly paid as a deposit) with the balance, in the amount of $70,600, to be ⁶¹¹ secured by a purchase money mortgage from the partnership. The total cash computed as due from the partners (including stamps, recording, title examinations, etc.) totalled $23,819.84. Another memorandum, dated merely “May 1965” [referred to as exhibit 6b] indicated the same purchase price and mortgage, but included deductions for a broker’s commission to Urciolo Realty ($9,460) and “one-half deed stamps,” leaving $14,383.25, one-half of which ($7,191.63) was allocated as payable to each of the nominal grantors, Joseph J. Urciolo and Thomas E. Chance. The half allocated to Joseph J. Urciolo (as “trustee” for Rogers) was debited with a trustee’s commission to Joseph J. Urciolo ($2,365) and attorneys fees to Urciolo and Urciolo ($600) and Gott ($500) for professional services rendered in the case of Clarke v. Rogers, showing a net balance for Rogers’ share at $3,726.62.

Gott testified that all of the amounts relating to attorneys’ and brokers’ fees and commissions appearing on the memoranda were supplied him by the appellant at the time of settlement. The appellant came to the settlement as a representative of the purchasing partners as well as to look out for the Rogerses’ interest; he brought, from members of the syndicate, checks totalling only $10,300, announcing that this should be sufficient to pay Chance’s portion of the cash. He delivered the checks to Gott as “settlement officer,” who, in turn, handed them over to Thomas Chance. Chance deposited the checks and in turn gave Gott a check in the amount of $3,108.37, representing the excess over the $7,191.63 which had been computed as Chance’s share of the cash paid at settlement.

The deed, as well as the mortgage, both dated May 26, 1965, were delivered at settlement and subsequently recorded. By letter dated June 10, 1965, Gott forwarded to the appellant, at his District of Columbia office, the deed which had been released from record and advised that he “will send the balance of funds on hand and title policy.” The third memorandum, dated June 12, 1965, by Gott [referred to as exhibit 6c] deducted $7,191.63, the amount paid Chance from the total of $10,300 brought to the ⁶¹² settlement by Urciolo, and from the balance of $3,108.37, Gott deducted $500 as payment of his fee in the tax sale litigation, and $819.84 as settlement costs, listing as “[b]alance on hand — check herewith . . .” $1,788.53. On the same date Gott drew a check on his trustee account in that amount, payable to “Raphael G. Urciolo, Attorney,” with a notation thereon, “John J. Rogers & wife.” 4 Raphael Urciolo received Gott’s check, endorsed it and deposited it in the District of Columbia on June 21,1965, in a personal account owned by him and his wife. In due course the drawee bank, Maryland National Bank in Annapolis, paid it on June 23, 1965.

Gott could not recall whether the check payable to the appellant had been mailed to him or had been delivered to him in person; his letter of June 10 advised that it would be sent to the appellant in Washington, D. C., and the trial court assumed it had been mailed. John J. Rogers never received any of the proceeds of the check from the appellant; he first learned of the sale and the settlement while a resident of Arizona when the appellant informed him that the property had been sold for $90,000. It was not until his return to Anne Arundel County, in about March, 1966, after suit had been filed against him by McGinnis, that he discovered the actual purchase price and concluded that he “had not been treated fairly.” At about the time of the trial of the proceedings in McGinnis v. Rogers, the appellant offered to pay Rogers $3,400, which Rogers refused. 5 ⁶¹³ The trial court in its memorandum, after noting that lack of jurisdiction in the court was one of the grounds raised by the defendant in his motion for judgment of acquittal, and citing Peddersen v. State, 223 Md. 329 , 164 A. 2d 539 (1960); Martel v. State, 221 Md. 294 , 157 A. 2d 437 , cert. denied, 363 U. S. 849 (1960); Bowen v. State, 206 Md. 368 , 111 A. 2d 844 (1955); and Waldrop v. State, 12 Md. App. 371 , 278 A. 2d 619 , cert. denied, 263 Md. 722 (1971), concluded: “Unquestionably, the Waldrop Court reviewed the law in embezzlement cases recognizing the four different criteria announced in Martel , and also recognizing the revisions stated in Peddersen , and stated that in Peddersen the Court had concluded that since the essential element in embezzlement was intent, the venue could be laid in any county in which: (1) the money or property was received with intent to embezzle, or (2) in the county in which the money or property was possessed and the intent to embezzle was formed, regardless of the fact that actual conversion may have taken place in another county or state. In the instant case, it is clear that the defendant attended the offices of Mr. Gott in Anne Arundel County with a sum of money with which to effect a settlement on behalf of Mr. Rogers.

He was at that time acting for and in behalf of Mr. Rogers. While it may be true that he received some funds belonging to Rogers by mail from Mr. Gott, and thereafter deposited that sum in an account in the District of Columbia, it is the view of this Court that at the time the defendant appeared with the money in Anne Arundel County he had then formed or continued to retain a criminal intent to embezzle funds of his principal. In the view of this Court there is ample evidence to support an inference that such an intent existed in Anne Arundel County, Maryland.” (Emphasis supplied.) The Court of Special Appeals affirmed the appellant’s ⁶¹⁴ conviction and the judgment entered thereon in Urciolo v. State, 19 Md. App. 123 , 310 A. 2d 165 (1973). 6 In concluding that the decision of the trial court that the State of Maryland had jurisdiction over the offense was “not clearly erroneous,” Judge Menchine, for the court, stated: “A permissible inference arises from the personal attendance of appellant at the settlement; from the letter from Gott to Raphael Urciolo, coupled with Exhibit 6c; and from the date and form of the check itself that appellant had designated Gott as his agent to deliver the check into his possession. While it is not clear from the testimony whether Urciolo received the check from Gott personally' in Anne Arundel County or through the mail, in our view it is immaterial here which course produced delivery to the appellant.” (Emphasis supplied.) 19 Md. App. at 130 , 310 A. 2d at 169 .

After quoting from Peddersen v. State, supra; Simmons v. State, 165 Md. 155 , 167 A. 60 (1933); Carter v. State, 143 Ga. 632 , 85 S. E. 884 (1915); and Commonwealth v. Wood, 142 Mass. 459 , 8 N. E. 432 (1886), he reasoned for the court: “It is plain, accordingly, that the lower court had jurisdiction if the evidence showed that an intent to appropriate had been formed within the state. The trial judge found that it did. There is a permissible, if not a compelling inference that appellant requested Gott to draw the check for $1788.53 to his order; it is crystal clear that appellant knew that Rogers — and no one but Rogers — was entitled to the proceeds of a fully consummated transaction; it is equally clear from the notation on the face of the check that its proceeds were intended for the use and benefit of ⁶¹⁵ Rogers. The words and actions of appellant both before and after settlement tend to show a fraudulent intent coexisting with actual or constructive possession of Rogers’ funds within the State.

We said in Waldrop v. State, 12 Md. App. 371, 377, 278 A. 2d 619 , 622: ‘Guilt in embezzlement cases is almost always a matter of inference, Couture v. State, 7 Md. App. 269 , 255 A. 2d 84 , and if the rational inferences prove the crime was committed in Maryland, there is no error in trying appellant in Maryland.’ The trial court concluded that this State had jurisdiction. We cannot say, in the light of the evidence presented, that its decision was clearly erroneous. Rule 1086. Because jurisdiction was established by a showing of the coexistence of possession and fraudulent intent, it is unnecessary to deal here with the applicability of the ‘place to account’ doctrine, nor is it necessary to decide whether jurisdiction would exist if the evidence showed only formation of fraudulent intent within this State with possession and appropriation elsewhere.” (Emphasis supplied.) 19 Md. App. at 136-37 , 310 A. 2d at 172-73 .

The Court of Special Appeals, upon the authority of the holdings in Cooper v. United States, 30 F. 2d 567 (D.C. Cir. 1929); Christison v. State, 273 Ala. 1 , 142 So. 2d 663 (1960); People v. Crane, 34 Cal. App. 599 , 168 P. 377 (1917); McGuire v. People, 83 Colo. 154 , 262 P. 1015 (1928); People v. Ervin, 342 Ill. 421 , 174 N. E. 529 (1930); Young v. State, 204 Ind. 331 , 183 N. E. 100 (1932); Hicks v. State, 54 Okla. Crim. 431 , 23 P. 2d 219 (1933); and 26 Am.Jur.2d Embezzlement § 43 (1966), rejected the appellant’s contention that there was a fatal variance. We granted the writ of certiorari limited to two questions: ⁶¹⁶ (a) whether the Maryland courts possessed territorial jurisdiction over the offense of embezzlement for which the appellant was convicted, and (b) whether there was a fatal variance between the allegations in the indictment of embezzlement of $7,500 United States currency and the proof which established an embezzlement by a check for $1,788.53.

I JURISDICTION The term “jurisdiction” as applied to criminal courts means the power to inquire into the facts, to apply the law and to declare the punishment for an offense in a regular course of judicial proceedings. See 22 C.J.S. Criminal Law § 107(1961). In Bowen v. State, 206 Md. 368 , 111 A. 2d 844 (1955), this Court found a want of jurisdiction over the criminal acts by the appellant. Bowen was the president of Security Title and Investment Corporation of Bethesda (Security).

A settlement was held at that company’s office in connection with the purchase of a home. The defendant was not present at the settlement; it was handled by his secretary, the company’s only other employee. The purchasers of the property had instructed a building and loan association from which they had borrowed $6,983 on a mortgage to transmit the mortgage check to Security; they had also instructed the Lawyer’s Title Insurance Corporation to send a $10,670 check, representing the proceeds to them from the settlement for their former home, to Security. At settlement they delivered to Security their personal check in the amount of $1,026.

From these several settlement checks Security was to pay-off a $12,500 open mortgage which the seller of the subject property owed to another building and loan association. All the checks which came into Security’s possession were deposited in a District of Columbia bank, were there paid, and all withdrawals from that account were made in the District of Columbia. About six months after settlement it was learned that ⁶¹⁷ Security had not discharged the existing mortgage; investigation revealed that Security then had only about $1,500 in its bank account; and the insurance premium for the property, also collected from the purchasers at the time of settlement had not been paid. The trial court convicted Bowen of both larceny after trust and embezzlement.

In reversing both convictions on the ground of a lack of jurisdiction, this Court, speaking through Judge Collins, stated: “The essential element in the crime of larceny after trust is the conversion. Code, 1951, Article 27, Section 420, supra; Hochheimer on Criminal Law, (2d Ed.), Section 365, page 402. The State in its brief says: ‘It is the general rule that the proper venue for embezzlement is the county where the act of appropriation or conversion took place.’ However, it further contends that there was a fair inference that, if a conversion took place with fraudulent intent, such intent was conceived in Montgomery County and that where the intent to embezzle is formed determines the jurisdiction in a prosecution for embezzlement. It relies on People v. Baker, 64 Cal.

App. 336 , 221 P. 654 [1923], and People v. Brock, 21 Cal. App. 2d 601 , 70 P. 2d 210 [1937], Assuming, without deciding and we do not here so decide, that the proper jurisdiction in a prosecution for embezzlement is that in which the intent to embezzle is formed, there is not sufficient evidence here that there was any intent on the part of either Security or appellant to embezzle the money when the checks were received at Security’s Bethesda office in Montgomery County, Maryland. The evidence here shows without contradiction that when the checks were received there were ample funds of Security in the Security Bank in Washington to pay off the trust in the amount of $12,500.00.” (Emphasis supplied.) 206 Md. at 375-76 , 111 A. 2d at 847 . ⁶¹⁸ He continued: “The State also claims that in cases of indictment for embezzlement jurisdiction is properly laid in the county where the accused was under obligation to account. Among cases relied on are the following: Kossakowski v. People, 177 Ill. 563 , 53 N. E. 115 ; People v. Davis, 269 Ill. 256 , 110 N. E. 9 ; Hopkins v. State, 52 Fla. 39 , 42 So. 52 ; Cole v. State, (Ala.), 67 So. 2d 64 .

Assuming, without deciding, and we do not so decide, that this is a true rule, the person to whom appellant or Security were supposed to account was Perpetual. The office of this corporation is located at Eleventh and E Streets, N.W., Washington, D.C. Therefore, the accounting was to be made in the District of Columbia and not in Maryland.” (Emphasis supplied.) 206 Md. at 377 , 111 A. 2d at 848 . For the Court Judge Collins further stated: “The State further claims that prosecution for embezzlement is properly instituted in the jurisdiction where the money was received, even though the money was later deposited in a bank located in another jurisdiction. It relies on the case of Denmark v. State, (Ga.), 161 S. E. 286 . . . .

The Court of Appeals of Georgia there held that the criminal intent to convert money is presumed to have been formed in the comity wherein the corporated officer obtained possession thereof. We have hereinbefore found in the instant case that there was not sufficient evidence to show any intent to convert the money at the time the checks were received in Bethesda, Maryland.” (Emphasis supplied.) 206 Md. at 377-78 , 111 A. 2d at 848 . After rejecting — upon the facts of the case — the application of these three bases for conferring jurisdiction, and without deciding their validity, Judge Collins quoted ⁶¹⁹ with approval from 2 F. Wharton, Criminal Law § 1309 (12th ed. 1932), that: “‘Some act of conversion or appropriation by the bailee or carrier must be alleged and proved to have taken place within the jurisdiction of the court.’ ” 7 After quoting with approval the holdings by the Court of Appeals of Kentucky in Hylton v. Commonwealth, 29 Ky.L.Rptr. 64 , 91 S.W. 696 (1906), as follows: “ ‘The offense was committed at the time when and place where appellant converted this money to his own use; and, in the absence of any evidence showing a conversion in Pike County, Ky., it is fair to presume that the conversion took place in the state of Virginia when and at the times appellant drew from the bank the money deposited there to his credit, with the purpose of not investing it in timber in Pike County, but of appropriating it to his own use; and as the crime charged is proven to have been committed in the state of Virginia, the courts of that state alone have jurisdiction of prosecutions against the perpetrator of the offense. The courts of this state cannot take cognizance of crime committed against the laws of a neighboring state.

The crime of conversion under this statute is a single offense complete in itself, when the fraudulent conversion takes place.’ ” 206 Md. at 378 , 111 A. 2d at 848 . 8 he concluded that: “In the instant case the checks were deposited in the District of Columbia, were paid in the District of Columbia, and the money was withdrawn in the District of Columbia. We are, therefore, of opinion that ⁶²⁰ the Circuit Court for Montgomery County had no jurisdiction in this case.” 206 Md. at 379 , 111 A. 2d at 849 . Following Bowen , this Court, in Martel v. State, 221 Md. 294 , 157 A. 2d 437 , cert. denied, 363 U. S. 849 (1960), assumed the correctness of the standards discussed in Bowen as valid bases for establishing venue. In Martel an errant bartender at a Frederick County club absconded with the cash box and “lived it up” in Baltimore for a number of days.

Judge Hammond (later Chief Judge), for the Court, after pointing out that the issue raised involved venue rather than jurisdiction, stated: “Appellant is not helped by claiming that it was not proven that venue properly was laid in Frederick County. The matter is not jurisdictional in the fundamental sense so that the question could be raised at any time and reviewed on appeal as in Bowen v. State, 206 Md. 368, 375 , where it is reiterated that an offense against the laws of the State of Maryland can be punished by a Maryland court only when committed within its territory. Rather, the question is one of venue. There is no evidence that appellant was ever out of the State.

His own testimony was that he blacked out in Frederick and woke up several hours later in Baltimore. In em bezzlement, the rule is that proper venue is the county where the act of appropriation or conversion took place, or where the intent to embezzle was formed, or where the property was entrusted, or where the accused is under an obligation to account. Bowen v. State, supra; 18 Am.Jur. Embezzlement, Sec. 65.

Almost always in the case of embezzlement, the determination of guilt must be inferential. There was evidence here from which the jury could find that any one, or all, of the necessary standards were met as to Frederick County. The money was entrusted to Martel there and it was there he was under an obligation to account. It could be inferred that the intent to convert and the actual conversion took ⁶²¹ place on the afternoon of December 22 in Frederick County from, among other things, the fact that he was seen buying liquor in Frederick Monday afternoon, at a time when the evidence permitted the inference that he had unpaid financial obligations, and the fact that he had the money in Frederick that afternoon and did not have it that evening in Baltimore.” (Emphasis supplied.) 221 Md. at 299 , 157 A. 2d at 440 . 9 In Peddersen v. State, 223 Md. 329 , 164 A. 2d 539 (1960), the appellant, manager of a Montgomery County farm, had among his duties, when directed by the owner, the sale of livestock; he usually chose to whom and at what price to sell and -would receive and hold the proceeds for his employer.

Pursuant to instructions and after negotiations with a buyer, the appellant hauled 60 head of cattle to Lancaster, Pennsylvania, where they were sold for $11,979. He requested that the check for the proceeds be made payable to him and returned with it to his home on the Montgomery County farm. Reporting the sale to the owner, he was instructed to mail the check to the owner’s office in the District of Columbia. Ignoring those instructions, on the following day he returned to Lancaster, presented the check to the drawee bank and in exchange obtained two (2) treasurer’s checks each payable to him in the amount of $5,390.63 — plus $1,197.93 cash.

With the two checks and the cash in his possession, he returned to his home. The next day he journeyed to Frederick where he cashed both treasurer’s checks and with the cash obtained again returned to his home. On the third day he revisited Frederick and with cash purchased from the same bank five (5) $1,000 United States Savings Bonds each made out to him as owner. Upon ⁶²² returning home that evening he learned of impending litigation concerning custody of one of his wife’s children by a former marriage and that same evening he drove his wife and children to an airport where they emplaned for the west coast.

The next day he again drove to Frederick, parked his vehicle there and fled the State. Following his conviction of embezzlement, on appeal, in reliance upon the holdings in Bowen v. State, supra, he asserted that the evidence was insufficient in law to sustain a conviction of an embezzlement committed in Montgomery County. In Peddersen Judge Horney, who delivered the opinion of the Court, after pointing out that in Bowen, supra, neither the fraudulent intent nor the active appropriation occurred in Maryland, found that there was factual evidence from which an inference could be drawn that both of these elements occurred in Maryland. After quoting 2 F. Wharton, Criminal Law (12th ed.) § 1289 (1932), that “[t]he defendant may be tried in any county where any part of the embezzlement was committed, or where, upon being called upon to account, he disowned having received the money,” 10 he continued: “Other law writers have recognized that where intent plus possession is shown, this will be sufficient reason for a court to assume jurisdiction of the offense.

See, for example, Clark and Marshall, Crimes (6th ed.), § 302: ‘[T]he offense [of embezzlement] is complete whenever a person who has been intrusted * * * [with money or property] forms an intent to convert it to his own use, and has possession with such intent. A person, therefore, may be indicted for embezzlement in the jurisdiction in which he had possession of ⁶²³ the property or money with intent to convert it to his own use * * * ’, 11 See also 3 Underhill, Criminal Evidence (5th ed.), § 582 [the place of embezzlement depends largely on where the fraudulent intent was formed]; 18 Am. Jur., Embezzlement, § 65 [the offense is committed where the property is received with intent to fraudulently convert it].” 223 Md. at 334-35 , 164 A. 2d at 543 . Recognizing that “it is fundamental that an intent to appropriate money or property is a vital element of the crime of embezzlement,” and that “courts are often faced with the difficulty of finding a clear showing of intent when there is no proof of an unequivocal act of appropriation within their jurisdiction,” and that the intent which accompanies the formation of a plan to do an act is inherently difficult to prove by direct evidence, he stated: “In addition to the law writers, the cases in other jurisdictions have long supported the rule that it is not necessary for the actual act of appropriation to occur within the territorial jurisdiction of the court if the essential element of fraudulent intent can be shown to have been formed either in the county where the property was received or in the county in which the property was possessed.” 223 Md. at 335 , 164 A. 2d at 543 .

The standard stated in Martel v. State, supra, and originally announced in Bowen , that proper venue would lie “where the intent to embezzle was formed,” was explicated in Peddersen, when it was stated: “It appears, however, that that part of the generalization [in Martel] concerning intent needs ⁶²⁴ amplification. The authorities herein referred to clearly indicate that the essential element in embezzlement, as in numerous other criminal offenses, is that of intent, and that venue may be laid in any county in which the money or property was received with intent to embezzle, or in the county in which the money or property was possessed and the intent to embezzle was formed, regardless of the fact that actual conversion may have taken place in another county or state. We hold, therefore, that where there is evidence, as there was in this case, to show that the defendant had possession in a stated county of the money or property appropriated, and also evidence to support an inference that the fraudulent intent to embezzle had been formed in the same county, such evidence is sufficient to establish proper venue.” (Emphasis supplied.) 223 Md. at 337 , 164 A. 2d at 544 . 12 If under the holdings in Peddersen there was a valid basis for venue over embezzlement in Anne Arundel County — or in any of the other subdivisions of this state — the Maryland courts would, a fortiori, possess territorial jurisdiction over such embezzlement. The statutes which created what is now known as the crime of “embezzlement” were enacted to make criminal certain types of conversion held to be outside the scope of common law larceny.

The first such statute, enacted in England in 1799 (30 Geo. 3, c. 85 (1799)) provided that “if any Servant or Clerk, or any Person employed ... by virtue of such Employment receive, or take into his Possession any Money, Goods [etc.] for or in the Name or on the Account of ⁶²⁵ his Master . . . and shall fraudulently embezzle . . . the same, or any part thereof, . . . [he] shall be deemed to have feloniously stolen the same . . .” Its enactment resulted from the decision in the famous case of Rex v. Bazeiey, 2 Leach C. C. 835, 168 Eng. Rep. 517 (1799), where a bank teller who directly pocketed and converted a deposit which came into his possession as teller was acquitted of larceny because he — not the bank — had the lawful possession of the deposit when it was converted. That statute, although it extended beyond the employees of banks and applied to “servants and clerks,” evidenced an intent to fill the void left by the Bazeiey decision. Although the statute of 7 and 8 Geo. 4, c. 29 (1827), was generally a revision of the law's concerning thefts, § 47 thereof remained essentially identical as the 1799 enactment as to the offense of “embezzlement.” 13 Generally the crime of embezzlement is said to be committed when property belonging to another, rightfully in the possession of the accused, is feloniously appropriated, the gravamen of the offense being the intent coupled with its actual execution.

See Clark and Marshall, Crimes § 12.18 (7th ed. 1967). It has also been defined as “the fraudulent conversion of personal property by a person to whom it was entrusted either by or for the owner.” R. Perkins, Criminal Law, “Embezzlement” Ch. 4, § 3B at 288 (2d ed. 1969). 14 See also 26 Am.Jur.2d Embezzlement § 1 (1966). In accord with this general definition of “embezzlement” see Jordan v. The James and Holstrom Piano Co., 140 Md. 207, 212 , 117 A. 366, 369 (1922); Williams v. United States Fidelity and Guaranty Co., 105 Md. 490, 494 , 66 A. 495, 496 (1907). In this country embezzlement statutes in effect in the various states are by no means uniform.

See Nolan v. State, 213 Md. 298, 315 , 131 A. 2d 851, 860 (1957). While the American statutes have in general been patterned after the ⁶²⁶ English statutes many of them are worded so as to include within their purview much which would not be within the English embezzlement statutes. See Annot., 146 A.L.R. 532 , 536-41 (1943). Such general embezzlement statutes applicable to the fraudulent conversion of property accomplished without a trespassory taking have one principal element in common, i.e. that the property converted had been entrusted to the converter either by or for the owner; proscribing the fraudulent conversion by one who has been lawfully entrusted with possession of money or goods, they equally encompass the conversion by an agent, servant, etc., entrusted with the money or goods by his principal or master and subsequently converts them, as well as the conversion by an agent or servant where the money or property was delivered or received or taken into possession by him for or on account of his master or employer. 15 Our statute is limited to the latter type agency relationship, it “ ‘ is borrowed almost verbatim, from 39 George III, chapter 85, and 7 and 8 George IV, chapter 29, sec. 47. [39 Geo.

Ill, Ch. 85, 1799, 7 and 8 Geo. IV, Ch. 29, Sec. 47, 1827].’ ” Nolan v. State, supra, 213 Md. at 312 , 131 A. 2d at 858 ; State v. Tracey, 73 Md. 447, 448 , 21 A. 366, 366 (1891); Clark and Marshall, Crimes, supra, § 12.18; R. Perkins, Criminal Law, supra, § 3A at 286. ⁶²⁷ Our statute in pertinent part reads as follows: “Whosoever being a cashier, servant, agent or clerk to any person, or whosoever being a cashier, servant, agent, officer, or clerk to any body corporate, or being employed for the purpose or in the capacity of a cashier, servant, agent, officer or clerk, by any person or body corporate shall fraudulently embezzle any money, goods, bill, note, bond, check, evidence or [of] debt, or other valuable security or effects which, or any part whereof, shall be delivered to or received, or taken into possession by him, for or in the name or on accoun t of his master or employer, shall be deemed to have feloniously stolen the same from his master or employer, although such money, goods, bill, note, bond, check, evidence of debt, or other valuable security or effects was not received into the possession of such master or employer, otherwise than by the actual possession of his cashier, servant, agent, officer, clerk or other person so employed, . . (Emphasis supplied.) Maryland Code (1957,1971 Repl. Vol.) Art. 27, § 129.

In Nolan v. State, supra, conviction of embezzlement was set aside where the facts established that he had committed larceny. In connection with the scope and application of Art. 27, § 129, Judge Collins, writing for the Court, observed: “In State v. Tracey, 73 Md. 447, 448, 450 , 21 A. 366 , in referring to this statute, this Court said: ‘This statute was enacted by chapter 310 of the Acts of the General Assembly of 1886. It is borrowed almost verbatim, from 39 George III, chapter 85, and 7 and 8 George IV, chapter 29, sec. 47. [39 Geo. Ill, Ch. 85, 1799, 7 and 8 Geo.

IV, Ch. 29, Sec. 47, 1827]. * * * Having borrowed the law from England where an established construction prevails and has long obtained, it is reasonable to hold, that we have adopted it with the interpretation there accorded to it.’ The appellee contends that, because ⁶²⁸