Definition
Embezzlement is the fraudulent appropriation of property by a person who received that property lawfully — through trust, employment, agency, or official duty — and then converted it to their own use. The defining characteristic is that the original taking was authorized; the crime lies in the subsequent misappropriation. Embezzlement is a statutory offense, created to fill a gap in the common law of larceny: at common law, a servant who received property with the master's consent and then kept it could not be convicted of larceny because there was no unlawful taking. Embezzlement statutes corrected this by criminalizing the fraudulent conversion that followed a lawful receipt.
Common Language
Modern common usage (Wiktionary): The fraudulent conversion of property from a property owner, particularly of public property.
Historical common usage (Webster's 1913): The fraudulent appropriation of property by a person to whom it has been intrusted; as the embezzlement by a clerk of his employer's money, or embezzlement of public funds by a public officer.
The gap between common and legal usage is narrow but important. Both common definitions track the legal concept reasonably well. The meaningful divergence is that popular usage tends to emphasize employee theft of money, obscuring the broader legal scope — which extends to agents, trustees, fiduciaries, and public officials, and covers property of any kind, not only money. The common definition also omits the lawful-receipt requirement that is the technical foundation of the offense and distinguishes it from larceny.
Common Confusion
EMBEZZLEMENT VS. LARCENY
Larceny requires an unlawful taking — the property is obtained without the owner's consent. Embezzlement requires a lawful receipt followed by a fraudulent conversion — the property came to the defendant by right or permission. A pickpocket commits larceny. A bookkeeper who pockets receipts she was entrusted to deposit commits embezzlement. Modern criminal codes in many jurisdictions have merged both into consolidated theft offenses, but the distinction remains essential when reading historical sources, interpreting older statutes, and analyzing elements that must be proved.
Core Elements
To establish embezzlement, the following elements are generally required:
1. FIDUCIARY OR TRUST RELATIONSHIP. The defendant must have received the property in a capacity of trust — as clerk, agent, servant, trustee, public officer, or other fiduciary. A stranger to the property who simply steals it is not an embezzler.
2. LAWFUL RECEIPT. The property must have come into the defendant's possession or control with the owner's consent or by operation of the defendant's authorized role. This is the element that separates embezzlement from larceny.
3. FRAUDULENT APPROPRIATION. The defendant must have converted the property to their own use or benefit through a fraudulent act. Innocent mistake or negligent loss is not embezzlement.
4. PROPERTY OF ANOTHER. The property appropriated must belong to another — the employer, principal, government, or beneficiary, not the defendant.
Recognized Forms
/SUBTYPES
EMBEZZLEMENT BY SERVANTS OR CLERKS. The historically earliest and most litigated category — employees who divert their employer's money or goods. The original target of the first embezzlement statutes in England.
EMBEZZLEMENT BY PUBLIC OFFICERS. Misappropriation of public funds by officials entrusted with their custody. Often addressed by separate statutes with enhanced penalties.
EMBEZZLEMENT BY FIDUCIARIES. Trustees, executors, administrators, guardians, and similar persons who convert property held for the benefit of another. May overlap with breach of fiduciary duty in civil law.
EMBEZZLEMENT BY AGENTS OR FACTORS. Commercial agents, brokers, and factors who appropriate client or principal property received in the course of business.
Why It Matters in Research
Embezzlement is a statutory crime, and the precise scope of the offense in any given jurisdiction and time period depends entirely on the controlling statute. Researchers working in historical sources must identify the applicable statute — not merely the common law — because the elements, covered relationships, and covered property varied significantly across jurisdictions and eras. Early American statutes were often narrow, covering only specific categories of persons (clerks, servants, agents), and courts were strict about whether a defendant fell within the enumerated class. A defendant who did not fit a listed category might escape conviction even when the conduct was functionally identical.
The lawful-receipt requirement is the critical navigational point in historical research. Courts interpreting pre-consolidation statutes frequently turned cases on whether the initial possession was truly authorized, creating a body of case law with fine distinctions that can appear technical to modern readers. Researchers should expect to encounter conflicting results that turn on these line-drawing exercises rather than on substantive moral distinctions.
Modern consolidated theft statutes — enacted in most states during the twentieth century following the Model Penal Code — abolish the larceny/embezzlement distinction as a matter of pleading and proof. Research in modern sources will rarely present the distinction as live. Research in sources predating consolidation must treat it as central.
The tax law dimension is significant and often overlooked. The Law Mind Tax Encyclopedia entry on Gross Income — Illegal Income and Embezzlement addresses whether embezzled funds constitute gross income to the embezzler. This is a distinct legal question from criminal liability and requires separate analysis.
Historical Dictionary Support
The historical dictionaries converge on a consistent core definition: embezzlement is the fraudulent appropriation to one's own use of property entrusted to the defendant by another. Burrill, Bouvier, and both editions of Black's use substantially identical language, with Burrill explicitly citing Blackstone's Commentaries (4 Bl. Com. 230, 231) and Kent's Commentaries as foundational authorities. This uniformity reflects the statute-driven nature of the offense — the dictionaries were largely restating what the embezzlement statutes said.
Bouvier's makes the larceny distinction most explicit, noting that embezzlement "is distinguished from larceny in the fact that the original taking of the property was lawful or with the consent of the owner." This formulation is the clearest statement of the element that defines the offense and should be the anchor for any historical analysis.
Burrill's entry is notable for enumerating the covered categories — clerks, servants, agents, mariners, and public officers — illustrating the statute-specific thinking of the era. The enumeration signals to researchers that category membership was a genuine element, not a background assumption.
Anderson's entry, as excerpted, is fragmentary but gestures toward a broader formulation covering property "rightfully or wrongfully" in the defendant's hands, suggesting some jurisdictional variation in how broadly the receipt element was defined.
The second edition of Black's excerpt in the source material is misaligned — it addresses embargo, not embezzlement — and should be disregarded for this entry.
Jurisdictional Note
Most American states consolidated embezzlement with larceny and other theft offenses into a single statutory theft crime during the latter half of the twentieth century. In consolidated-theft jurisdictions, the larceny/embezzlement distinction no longer affects pleading, proof, or verdict. A minority of states retain separate embezzlement statutes. Federal law addresses embezzlement across numerous specific statutes covering particular contexts — federal employees, banks, labor organizations, and others — rather than a single general embezzlement provision.
Encyclopedia Cross-Reference
Embezzlement (The Law Mind Criminal Law Encyclopedia)
Gross Income — Illegal Income and Embezzlement (The Law Mind Tax Encyclopedia)