AND EMBEZZLEMENT - The Law Mind Legal Dictionary

AND EMBEZZLEMENTAuthored

The Law Mind • 784 words

Definition

"And embezzlement" is not a standalone legal term. It is a phrase fragment — a conjunctive addition that appears in charging instruments, statutory headings, and legal indexes to join embezzlement with a preceding offense or concept, most commonly larceny or theft. The phrase signals that embezzlement is being treated as a companion or alternative charge rather than as the sole offense at issue.

Embezzlement itself is the fraudulent conversion of property by a person who lawfully came into possession of it through a position of trust or employment. It differs from common-law larceny in that the initial taking is authorized — the wrongdoing lies in the subsequent misappropriation. The "and embezzlement" construction typically appears where a legislature or pleader wants to cover both the unauthorized taking (larceny) and the fraudulent conversion by a trusted party (embezzlement), ensuring no gap in coverage based on how the facts ultimately develop.

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Common Confusion

The pairing "larceny and embezzlement" (or "theft and embezzlement") reflects a genuine historical problem: at common law, larceny and embezzlement were distinct offenses with different elements, and a mischarged defendant could escape conviction entirely if the evidence fit one but not the other. Many modern consolidated theft statutes were enacted precisely to eliminate this gap. Researchers encountering "and embezzlement" in older materials should recognize it as a drafting response to this doctrinal vulnerability, not as a term of art in itself.

Embezzlement should also be distinguished from obtaining property by false pretenses. In embezzlement, lawful possession precedes the wrongful act. In false pretenses, the wrongdoer induces the victim to transfer title or possession through deception. All three — larceny, embezzlement, and false pretenses — were historically separate offenses; the "and embezzlement" formulation often signals the drafter's awareness of that tripartite structure.

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Why It Matters in Research

Researchers are most likely to encounter "and embezzlement" in three contexts:

First, in statutory indexes and table-of-contents listings, where "larceny and embezzlement" or "theft and embezzlement" marks a combined statutory section. Pre-consolidation criminal codes frequently organized offenses this way. Reading only the larceny provision in such a section will cause a researcher to miss the embezzlement elements entirely.

Second, in criminal pleadings and indictments from the nineteenth and early twentieth centuries, where conjunctive charging was standard practice. A count alleging both larceny "and embezzlement" was a deliberate hedge. Understanding this practice is essential to reading historical charging documents accurately.

Third, in tax materials, where the question of whether embezzled funds constitute gross income has independent significance. The Law Mind Tax Encyclopedia entry on Gross Income — Illegal Income and Embezzlement addresses this dimension, which is entirely separate from the criminal law treatment.

Jurisdictional consolidation is uneven. Some states merged theft offenses early; others retained parallel statutory structures well into the late twentieth century. A researcher working with pre-consolidation sources must treat larceny and embezzlement as analytically separate, even when they appear joined by "and."

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Historical Dictionary Support

Bouvier's Law Dictionary does not contain a direct entry for "and embezzlement" as a phrase, which is expected — it is a fragment, not a term of art. The Bouvier entry provided in the source material is for EMBLEMENTS (profits of sown land), a wholly different concept involving a tenant's right to harvest crops after tenancy ends. That entry has no substantive bearing on embezzlement. Researchers should not conflate these terms; the visual similarity between "emblements" and "embezzlement" is purely superficial and etymologically unrelated.

Bouvier does treat embezzlement separately in its main alphabetical sequence, where it is defined in relation to breach of trust and distinguished from larceny — consistent with the common-law framework described above. The historical dictionaries uniformly treat embezzlement as a creature of statute, because common-law courts declined to recognize it as larceny. This statutory origin explains why the "and embezzlement" pairing was necessary: legislatures had to add embezzlement expressly to reach conduct that common-law larceny left uncovered.

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Jurisdictional Note

Modern consolidated theft statutes in most U.S. jurisdictions have absorbed embezzlement into a general theft offense, making the "and embezzlement" construction largely obsolete in current drafting. However, federal law and several states retain embezzlement as a distinct named offense, particularly in contexts involving public officers, financial institutions, or fiduciaries. Researchers working with federal materials should not assume consolidation has occurred.

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Encyclopedia Cross-Reference

The Law Mind Criminal Law Encyclopedia: Embezzlement
The Law Mind Tax Encyclopedia: Gross Income — Illegal Income and Embezzlement

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AND EMBEZZLEMENTmain

Bouvier's Law Dictionary • 1928

EMBLEMENTS (Fr. embler, or embla- ver, to sow with corn. The profits of the land sown). The right of a tenant to take and carry away, after his tenancy has ended, such annual products of the land as have resulted from his own care and labor. The term is also applied to the crops them- selves. Co. Litt. 55 b; 4 H. & J. 189; 8 Β. & Ald. 118-; 64 Pa. 184. It is a privilege allowed to tenants for life, at will, or from year to year, because of the uncer- tainty of their estates and to encourage husbandry. If, however, the tenancy is for years, and its dufa- tion depends upon ho contingency, a tenant when he sows a crop must know whether his term will continue long enough for him to reap it, and is not permitted to re-enter and cut it after his term has ended; 4 Bingh. 202; 10 Johns. 861; 5 Halst. 128; 48 Mo. App. 430. Whenever a tenancy, other than at sufferance, is from the first of uncertain duration and is unexpectedly terminated without fault of the tenant, he is entitled to emblements; 86 Ala. 508. This privilege extends to cases where a lease has been unexpectedly terminated by the act of God or the law; that is, by some unforeseen event which happens without the tenant's agency; as, if a lease is made to husband and wife so long as they con- tinue in that relation, and they are after- wards divorced by a legal sentence, the husband will be entitled to emblements; Oland's case, 5 Co. 116 b; or where the lessee of a tenant for life has growing crops unharvested at the time of the latter's death, he is entitled to them; 56 Conn. 874. A similar result will follow if the landlord, having the power, terminates the tenancy by notice to quit; Cro. Eliz. 400; but not where, under the terms of the lease, the landlord re-enters, and takes possession be-