A. Embezzlement consists of a person embezzling or converting to the person's own use anything of value, with which the person has been entrusted, with fraudulent intent to deprive the owner thereof.
B. Whoever commits embezzlement when the value of the thing embezzled or converted is two hundred fifty dollars ($250) or less is guilty of a petty misdemeanor.
C. Whoever commits embezzlement when the value of the thing embezzled or converted is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor.
D. Whoever commits embezzlement when the value of the thing embezzled or converted is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.
E. Whoever commits embezzlement when the value of the thing embezzled or converted is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.
F. Whoever commits embezzlement when the value of the thing embezzled or converted exceeds twenty thousand dollars ($20,000) is guilty of a second degree felony.
History: 1953 Comp., § 40A-16-7, enacted by Laws 1963, ch. 303, § 16-7; 1987, ch. 121, § 4; 1995, ch. 131, § 1; 2006, ch. 29, § 5; 2007, ch. 256, § 1.
ANNOTATIONSCross references. — For embezzlement by county officers, see 4-44-32 NMSA 1978.
For appropriation of trade secrets, see 57-3A-1 NMSA 1978 et seq.
The 2007 amendment, effective July 1, 2007, deleted the second sentence that provided that each separate incident of embezzlement or conversion constituted a separate offense.
The 2006 amendment, effective July 1, 2006, increased the value of the thing embezzled or converted in Subsection B from $100 or less to $250 or less; increased the value of the thing embezzled or converted in Subsection C from more than $100 but less than $250 to more than $250 but less than $500; increased the value of the thing embezzled or converted in Subsection D from more than $250 to more than $500.
The 1995 amendment, effective July 1, 1995, added the second sentence in the first paragraph, and substituted "two thousand five hundred dollars" for "twenty five hundred dollars" in the fourth and fifth paragraphs.
The 1987 amendment, effective June 19, 1987, added the third and last paragraphs, substituted "two hundred fifty dollars ($250)" for "one hundred dollars ($100)" in the fourth paragraph, while inserting "dollars" following "twenty-five hundred" in that same paragraph, and substituted "is over twenty-five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000)" for "exceeds twenty-five hundred dollars ($2,500)" in the fifth paragraph.
I. IN GENERAL.
Equitable owner of property. — The equitable owner of property under a real estate contract cannot be criminally charged with embezzling that property. State v. Earp, 2014-NMCA-059.
Where defendant purchased a home pursuant to a real estate contract; when defendant failed to pay the balance due on the contract, the seller terminated the contract; prior to vacating the property, defendant removed a number of appliances and fixtures from the house and left the house in a state of disrepair; and defendant was charged with embezzlement, 30-16-8 NMSA 1978 did not apply to property in which defendant had an equitable ownership interest. State v. Earp, 2014-NMCA-059.
Jury deliberatons. — The trial court did not abuse its discretion in acquiescing to the jury's request for the use of a calculator during its deliberations in a trial for 148 counts of embezzlement. State v. Lihosit, 2002-NMCA-006, 131 N.M. 426, 38 P.3d 194, cert. denied, 131 N.M. 564, 40 P.3d 1008.
Entrustment. — In order to be guilty of embezzlement, a defendant must have been entrusted with lawful possession of the property prior to its conversion. A showing that a defendant was given mere access to the property converted is insufficient. State v. Kovach, 2006-NMCA-122, 140 N.M. 430, 143 P.3d 192.
Elements of offense. — The concept that the property belong to someone other than the defendant is implicit in the current statute. State v. Cramer, 1977-NMCA-010, 90 N.M. 157, 560 P.2d 948, cert. denied, 90 N.M. 254, 561 P.2d 1347.
Failure to instruct the jury on an essential element of embezzlement , fraudulent intent, is reversible error under Rule 5-608A NMRA. State v. Clifford, 1994-NMSC-048, 117 N.M. 508, 873 P.2d 254.
Fraud and embezzlement are mutually exclusive, and although alternative charges are proper, a defendant cannot be convicted of both fraud and embezzlement. State v. Hornbeck, 2008-NMCA-039, 143 N.M. 562, 178 P.3d 847.
Offense of embezzlement is purely statutory crime and does not exist at common law. State v. Bryant, 1982-NMCA-178, 99 N.M. 149, 655 P.2d 161.
Conviction as bar to further prosecution. — A conviction for embezzling a sum as county clerk and ex-officio clerk of the district court barred further prosecution for embezzling another sum as county clerk and ex-officio probate clerk where state was unable to show conversion of any particular sum at any particular time. State v. Romero, 1928-NMSC-023, 33 N.M. 314, 267 P. 66.
Convictions violated double jeopardy. — Where defendant was charged with four counts of fraud and, in the alternative, four counts of embezzlement, and on counts 2 and 4, she was convicted of both the fraud and embezzlement alternatives, although the state is authorized to charge in the alternative, defendant's convictions for both alternatives violate her right to be free from double jeopardy. State v. Mercer, 2005-NMCA-023, 137 N.M. 36, 106 P.3d 1283, cert. denied, 2005-NMCERT-002, 137 N.M. 265, 110 P.3d 73.
Exercise of police power. — Section 40-45-22, 1953 Comp., relating to embezzlement by public officials of public funds, was a proper exercise of the police power. State v. Nolan, 1955-NMSC-059, 59 N.M. 437, 285 P.2d 798 (decided under prior law, statute repealed).
Purpose of legislation. — The state's legitimate interest in the protection of public funds may be expressed in penal sanctions the purpose of which is the prevention of certain manifest or anticipated evil, or the preservation of the public health, safety, morals or general welfare. State v. Nolan, 1955-NMSC-059, 59 N.M. 437, 285 P.2d 798.
Presumption of embezzlement constitutional. — Provision in former law making existence of a shortage in the money or property for which public officials were accountable prima facie evidence of embezzlement did not violate constitutional rights of accused as there was a rational connection between the facts and the fact presumed, and the defendant was not precluded from presenting his defense to the presumed fact. State v. Chavez, 1954-NMSC-114, 58 N.M. 802, 277 P.2d 302 (decided under prior law).
Defendant can be convicted of third-degree felony where series of takings totals more than $2,500, although each individual taking is less, if the takings are associated with a single, sustained criminal intent. State v. Pedroncelli, 1984-NMSC-009, 100 N.M. 678, 675 P.2d 127.
Child attempting to honor probation commitments. — If in refusing to purchase marijuana with money entrusted to him by a law enforcement officer, but instead keeping the money for himself, a child on probation was attempting to honor his probation commitments, affirming an order revoking probation based on charges of embezzlement would be inconsistent with the purposes of the Children's Code (Section 32A-1-1 NMSA 1978], since the child had not been aware that the person giving him the money was an undercover officer involved in a sting operation. In re Danny R., 1992-NMCA-056, 114 N.M. 315, 838 P.2d 469, cert. denied, 114 N.M. 123, 835 P.2d 839.
II. ELEMENTS OF OFFENSE.
Conversion. — Conversion occurs when a person who has been entrusted with another's property treats the property as his own and uses it for his own purpose. State v. Curry, 2002-NMCA-092, 132 N.M. 602, 52 P.3d 974, cert. denied, 132 N.M. 397, 49 P.3d 76.
To convict of embezzlement, state had to prove beyond a reasonable doubt that defendant was entrusted with money that she converted to her own use and, at the time defendant converted the money, she fraudulently intended to deprive the owner of it. State v. Mercer, 2005-NMCA-023, 137 N.M. 36, 106 P.3d 1283, cert. denied, 2005-NMCERT-002, 137 N.M. 265, 110 P.3d 73.
Essential element of fraud or embezzlement is intent, which is seldom provable by direct testimony, and must be proved by the reasonable inferences shown by the evidence and the surrounding circumstances. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Embezzlement requires proof that defendant entertained specific intent to deprive owner of property. — Embezzlement is a crime which requires proof that at the time of the conversion of the property, the defendant entertained a specific intent to deprive the owner of the property. State v. Gonzales, 1983-NMCA-041, 99 N.M. 734, 663 P.2d 710, cert. denied, 99 N.M. 644, 662 P.2d 645, and cert. denied, 464 U.S. 855, 104 S. Ct. 173, 78 L. Ed. 2d 156 (1983).
"Entrust" defined. — "Entrust" means to commit or surrender to another with a certain confidence regarding his care, use or disposal of that which has been committed or surrendered. State v. Stahl, 1979-NMCA-054, 93 N.M. 62, 596 P.2d 275, cert. denied, 93 N.M. 8, 595 P.2d 1203.
Specific or technical fiduciary relationship is not necessary to sustain an embezzlement conviction. State v. Archie, 1997-NMCA-058, 123 N.M. 503, 943 P.2d 537.
Intent to "permanently" deprive is not requisite element of embezzlement. State v. Moss, 1971-NMCA-117, 83 N.M. 42, 487 P.2d 1347.
A legislative intent to include the element of intent to permanently deprive the owner of his property in the crime of embezzlement cannot be ascertained by comparing this section with the larceny statute (30-16-1 NMSA 1978), because larceny is defined in terms of stealing while comparable language is not used in the embezzlement statute. State v. Moss, 1971-NMCA-117, 83 N.M. 42, 487 P.2d 1347.
Time of formation of intent. — It would not be fatal to conviction, resting on entrustment, that the fraudulent intent existed or was formed coincidentally with receipt of the money or property. State v. Konviser, 1953-NMSC-057, 57 N.M. 418, 259 P.2d 785.
Persons capable of entrustment. — That one is an agent, servant or employee does not deny that "entrustment" may characterize the custody of money or property in his possession as such agent, servant or employee. State v. Konviser, 1953-NMSC-057, 57 N.M. 418, 259 P.2d 785.
Money to be proved missing. — If money cannot be proved missing by reliable, competent testimony or documentary evidence, an embezzlement charge must be dropped. State v. Konviser, 1953-NMSC-057, 57 N.M. 418, 259 P.2d 785.
Court trying embezzlement not concerned with amount owed victims. — In a trial for embezzlement, the court is not concerned with the amount owed to the victims by the defendant but with the amount converted in violation of this section. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324.
Failure to pay on demand. — Proof of a demand and a failure to return the property may be evidence of embezzlement because such proof is material to the questions of conversion of the property and a fraudulent intent to deprive the owner of his property, but such a demand and failure to return is not a separate element of the crime. State v. Moss, 1971-NMCA-117, 83 N.M. 42, 487 P.2d 1347.
A demand and failure to pay over the money was necessary, both by way of allegation and proof, before a public official could be convicted of embezzlement under Code 1915, § 1546. State v. Davisson, 1923-NMSC-045, 28 N.M. 653, 217 P. 240, appeal dismissed, 267 U.S. 574, 45 S. Ct. 229, 69 L. Ed. 795 (1925) (decided under prior law).
Restitution does not prevent conviction for completed embezzlement. — Embezzlement is complete when the defendant converts the victim's checks, and restitution does not allow the embezzler to escape prosecution and conviction. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324.
Value not jurisdictional. — Although information should have alleged value, jurisdiction does not depend upon the value of the property embezzled; value merely denotes the grade of the offense. Roehm v. Woodruff, 1958-NMSC-083, 64 N.M. 278, 327 P.2d 339(decided under prior law).
III. INDICTMENT AND INFORMATION.
Grand jury instructions must include definitions. — The definitional instructions that are included within the essential UJI elements instruction for a crime shall be given to the grand jury. State v. Bradford, 2013-NMCA-071, 305 P.3d 975.
Failure to give definitional instructions to grand jury. — Where defendant was charged with embezzlement and the instructions to the grand jury failed to include the definitions of "fraudulent intent" and "converted" in UJI 14-1641 NMRA, the jury instructions were insufficient. State v. Bradford, 2013-NMCA-071, 305 P.3d 975.
Charging in alternative not double jeopardy. — The concept of double jeopardy was not involved in charging defendant with fraud or in the alternative embezzlement since the charges were in the alternative, nor were the concepts of included offenses, same evidence or merger applicable. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Charging in alternative not unfair. — There was nothing unfair about charging the defendant in the alternative with fraud or embezzlement, particularly since the charges arose out of the same events and carried the same penalties, and defendant was furnished with a most detailed statement of fact including the complete district attorney's file, police reports and a citation of authorities the state was relying on in support of each of the alternative charges. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Indictment proper although lesser offense also applicable. — Where there was sufficient evidence to support a conviction for embezzlement, prosecution therefor was proper, even though the charges might have been covered by the lesser crime of criminal damage to property. State v. Archie, 1997-NMCA-058, 123 N.M. 503, 943 P.2d 537.
Indictment in exact language of statute was sufficiently specific to require no amplification. State v. Probert, 1914-NMSC-025, 19 N.M. 13, 140 P. 1108.
Means or elements of offense. — There is no necessity to set forth means or elements of the statutory offense of embezzlement in an information. Smith v. Abram, 1954-NMSC-061, 58 N.M. 404, 271 P.2d 1010.
Failure to meet demands. — Indictment was to charge that accused was not able to meet the demands of any person lawfully demanding the allegedly embezzled property. Territory v. Abeyta, 1907-NMSC-011, 14 N.M. 56, 89 P. 254.
Allegation of value. — Where indictment described embezzlement as being of a certain number of dollars, it was not necessary to state further the value. Territory v. Hale, 1905-NMSC-021, 13 N.M. 181, 81 P. 583 (decided under prior law).
Indictment was sufficient both as to description of money and value thereof where it alleged "having then and there in his possession the sum of . . . (a certain number of dollars), a better description of the kinds and character of which is to the grand jurors unknown." Territory v. Hale, 1905-NMSC-021, 13 N.M. 181, 81 P. 583 (decided under prior law).
Since much property embezzled was never seen by the employer, it was not necessary to exactly describe it in indictment, and money need only have been described in the best way which the circumstances permitted, in the indictment and on trial. Territory v. Maxwell, 1882-NMSC-010, 2 N.M. 250 (decided under prior law).
Allegation of ownership. — In indictment charging embezzlement it is essential to aver the felonious conversion of the property of another; unless the rule is modified by statute, the allegation must be as accurate as in an indictment for larceny, and in case of an association, facts must be averred to show that the association could own property in its name. State v. Parsons, 1917-NMSC-084, 23 N.M. 520, 169 P. 475 (decided under prior law).
Embezzlement by employee. — An indictment under Code 1915, § 1544, which did not allege that property embezzled came into possession of accused by virtue of his employment was not fatally defective. State v. Hill, 1918-NMSC-046, 24 N.M. 344, 171 P. 790 (decided under prior law).
Embezzlement of sheep. — An indictment under Laws 1921, ch. 123, § 1 (40-4-17, 1953 Comp.), alleging that on a day certain the defendant, having been entrusted with certain number of sheep belonging to named person, embezzled and fraudulently converted the same to his own use, stated an offense. State v. Anaya, 1922-NMSC-059, 28 N.M. 283, 210 P. 567 (decided under prior law).
Citation of wrong section. — Petitioner was not deprived of liberty without due process of law nor denied equal protection of the law under this section merely because an information charging defendant with embezzlement incorrectly refers to a repealed section since the offense was otherwise sufficiently charged. Smith v. Abram, 1954-NMSC-061, 58 N.M. 404, 271 P.2d 1010.
IV. EVIDENCE AND ISSUES.
Single criminal intent doctrine inapplicable. — Court did not commit fundamental error by refusing to instruct jury that the state was required to prove that each instance of embezzlement charged was the result of a distinct criminal impulse; the single criminal intent doctrine no longer applies to embezzlement cases, in light of the 1995 amendment of this section (adding the second sentence in the first paragraph). State v. Faubion, 1998-NMCA-095, 125 N.M. 670, 964 P.2d 834, cert. denied, 125 N.M. 322, 961 P.2d 167 (decided under prior law).
Testimony of C.P.A. — In an embezzlement prosecution, a certified public accountant may testify as to his findings from an examination of books and records not in evidence and not produced at the trial. State v. Schrader, 1958-NMSC-056, 64 N.M. 100, 324 P.2d 1025.
Factual question as to ownership of funds. — Where there was evidence that the victims gave checks to the defendant, knowing they had insufficient funds in the bank to cover the checks, on the defendant's representations that he wanted the checks to show to investors and that the checks would not be cashed, this evidence raised a factual question as to whether ownership of the funds represented by the checks passed or was intended to pass to defendant. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324.
No mistake-of-fact instruction unless employee believed he was authorized to expend employer's funds. — The defendant is not entitled to a mistake-of-fact instruction in a prosecution for embezzlement for using public funds belonging to his employer to pay for the travel expenses of his spouse, who is not employed by the same employer and who has not performed any public service, on the ground that he believed in good faith he was owed money by his employer, where there is no evidence that he in fact believed he possessed the legal authority to expend public funds for his spouse's travel. State v. Gonzales, 1983-NMCA-041, 99 N.M. 734, 663 P.2d 710, cert. denied, 99 N.M. 644, 662 P.2d 645, and cert. denied, 464 U.S. 855, 104 S. Ct. 173, 78 L. Ed. 2d 156 (1983).
Question of entrustment is a question of fact for the jury. State v. Peke, 1962-NMSC-033, 70 N.M. 108, 371 P.2d 226, cert. denied, 371 U.S. 924, 83 S. Ct. 293, 9 L. Ed. 2d 232 (1962).
Jury to be instructed on ordinary meaning of term. — The usual, ordinary meaning of "entrusted" was applicable to this section, and defendant therefore was not entitled to an instruction defining entrustment as a designated fiduciary relationship. State v. Moss, 1971-NMCA-117, 83 N.M. 42, 487 P.2d 1347.
Since defendant not entrusted with money, offense not embezzlement. — Although a defendant is in charge of an entire store, where the undisputed facts show that money in a drop-box is not committed or surrendered to the defendant's care, use or disposal, that the money is to be handled exclusively by the manager, and where the defendant is excluded from having anything to do with that money, his offense, as to taking the money in the drop-box, is larceny, not embezzlement, because he had not been entrusted with that money. State v. Stahl, 1979-NMCA-054, 93 N.M. 62, 596 P.2d 275, cert. denied, 93 N.M. 8, 595 P.2d 1203.
Entrustment established. — Where defendant, for some five years, acted as executive secretary of state association and, in effect, operated the business transactions of the association, including the making of bank deposits and submitting reports to the board of directors, evidence supported the jury finding of entrustment of the money of the association. State v. Peke, 1962-NMSC-033, 70 N.M. 108, 371 P.2d 226, cert. denied, 371 U.S. 924, 83 S. Ct. 293, 9 L. Ed. 2d 232 (1962).
Sufficiency of evidence. — There was sufficient evidence to support defendant's conviction of embezzlement; the evidence showed that defendant was entrusted with the victim's money, the victim asked for it back, and defendant, having converted the money for his own use, knowingly wrote a check to the victim that defendant knew would be returned for insufficient funds. State v. Curry, 2002-NMCA-092, 132 N.M. 602, 52 P.3d 974, cert. denied, 132 N.M. 397, 49 P.3d 76.
Insufficient evidence of entrustment to support embezzlement conviction. — Where defendant, a homebuilder hired to build homes in a luxury golf community in Santa Fe, was charged with embezzlement for his failure to finish several construction projects, and where evidence at trial established that defendant's clients paid initial deposits to defendant to be used toward construction costs of their new homes, there was insufficient evidence to convict defendant of embezzlement because contractors cannot be convicted of embezzlement of down payment of funds upon a failure to complete a project because deposit money is legally the property of the contractor at the time it is paid. Consequently, at the time defendant used the deposit money for purposes other than the construction of the properties, the deposits already legally belonged to defendant; he could not be found to have converted deposits because they were his property, not the property of another. State v. Kalinowski, 2020-NMCA-018, cert. denied.
Electronic monitoring devices covered by embezzlement statute. — Defendant probationer was entrusted with an electronic monitoring device (EMD) within the meaning of this section, and his disposal of the EMD in an effort to end the state's ability to monitor his movements was evidence that he used it for his own purpose and evidence of his fraudulent intent. State v. Archie, 1997-NMCA-058, 123 N.M. 503, 943 P.2d 537.
Fraud or embezzlement for jury. — It was for the jury to decide whether defendant obtained the $500 by fraud or converted to his own use the money with which he had been entrusted. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Whether defendant received property as loan or for investment jury question. — In a trial for fraud and embezzlement where the evidence was conflicting, whether the money and checks given to the defendant were loans, as he claimed, or were for investments, as his alleged victims claimed, was for the jury to decide. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324.
Evidence of amount owed victims not dispositive of case. — In a trial for a third-degree embezzlement felony, the fact that the victims eventually "lost" an amount less than $2,500 was not dispositive, as there was substantial evidence that the defendant, with the requisite fraudulent intent, negotiated for his own use checks in the amount of $3,900, which he had been entrusted to hold and not cash. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324.
Sale of borrowed property. — Evidence that defendant sold a motorcycle to complaining witness, that subsequently, motorcycle was loaned back to defendant, and that although requested to do so, defendant did not return motorcycle but sold it to a third person established an embezzlement as defined in this section. State v. Gregg, 1972-NMCA-001, 83 N.M. 397, 492 P.2d 1260, cert. denied, 83 N.M. 562, 494 P.2d 975.
Evidence of intent inconsistent with innocence. — While evidence was circumstantial, once the jury determined that defendant who sold motorcycle to third party had already sold it to complaining witness, circumstantial evidence of intent was inconsistent with any reasonable theory of innocence. State v. Gregg, 1972-NMCA-001, 83 N.M. 397, 492 P.2d 1260, cert. denied, 83 N.M. 562, 494 P.2d 975.
Embezzlement of checks. — The state satisfied its burden as to the embezzlement when it showed that two checks were cashed and the other two were deposited in the defendant's personal checking account, and it made very little difference whether other funds were used, as defendant sought to imply, to make up the discrepancy; the embezzlement occurred at the moment of the cashing of the checks. State v. Peke, 1962-NMSC-033, 70 N.M. 108, 371 P.2d 226, cert. denied, 371 U.S. 924, 83 S. Ct. 293, 9 L. Ed. 2d 232 (1962).
Failure to account for fine. — A justice of the peace (now magistrate) could be indicted for the embezzlement of a fine imposed and collected for which he never accounted, either before or after expiration of his term of office. Territory v. Heacock, 1889-NMSC-006, 5 N.M. 54, 20 P. 171.
No evidence to support attempt charge. — Evidence that defendant was loaned a car and hadn't returned it more than three days later, shows that he was guilty of embezzlement or no crime at all, and did not support an issue of "attempt." State v. Moss, 1971-NMCA-117, 83 N.M. 42, 487 P.2d 1347.
Breach of trust not embezzlement. — Defendant who was guilty of nothing more serious than a breach of trust could not be convicted for embezzlement. Territory v. Eyles, 1911-NMSC-068, 16 N.M. 657, 119 P. 1127.
Unexplained comparison of computer printouts and defendant's records violates right of confrontation. — Defendant was denied her constitutional right of confrontation at her trial for embezzlement, where the only evidence of shortages attributable to her was obtained by an unexplained comparison of computer printouts with her own records and there was no evidence that the state's only witness understood how the printouts were prepared. State v. Austin, 1985-NMCA-118, 104 N.M. 573, 725 P.2d 252, cert. quashed, 104 N.M. 632, 725 P.2d 832.
When directed verdict proper. — If there are reasonable inferences and sufficient circumstances then the issue of intent becomes a question of fact for the jury, and only where there are no reasonable inferences or sufficient surrounding circumstances can it be said, as a matter of law, that a motion for a directed verdict should have been granted or that a charge should not have been presented to the jury. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Circumstantial evidence supported store manager's conviction of embezzlement, where the state presented evidence of discrepancies between the daily sales reports and deposit slips indicating shortages on six days, and the facts relied upon by defendant were not uncontroverted and consisted of issues of credibility to be resolved by the jury as finders of fact. State v. James, 1989-NMCA-089, 109 N.M. 278, 784 P.2d 1021, cert. denied, 109 N.M. 262, 784 P.2d 1005.
Jury instruction on single larceny doctrine appropriate. — Single larceny doctrine recognizes either that a taking at one time or place of property belonging to several people may constitute a single crime, or, that a series of takings from one owner may also constitute a single crime and therefore these crimes cannot be separately punished. Since the facts and circumstances showed a series of acts that cannot be said as a matter of law to be either a single taking or separate takings, for a defendant to be separately convicted and sentenced for each taking, the state also had to show separate intent. Under the aforementioned circumstances, it is fundamental error for the trial court not to instruct the jury on the single criminal intent doctrine. State v. Brooks, 1994-NMSC-062, 117 N.M. 751, 877 P.2d 557 (decided under prior law).
Mistake of fact instruction. — Since there was a question whether defendant rightfully applied certain construction payments to the balance allegedly due him by the plaintiff, defendant was entitled to an instruction on mistake of fact, the omission of which constituted reversible error. State v. Bunce, 1993-NMSC-057, 116 N.M. 284, 861 P.2d 965.
Jury instruction on intent deficient. — Jury instruction which omitted the essential element of fraudulent intent required by this section was deficient, and required reversal of defendant's conviction for embezzlement. State v. Green, 1993-NMSC-056, 116 N.M. 273, 861 P.2d 954.
Fraudulent intent instruction. — Failure to instruct the jury on an essential element of embezzlement, fraudulent intent, is reversible error and can never be corrected by including the concept elsewhere in the instructions. State v. Clifford, 1994-NMSC-048, 117 N.M. 508, 873 P.2d 254.
Essential elements of embezzlement. — The essential elements of the offense of embezzlement are that the property belonged to someone other than the accused, that the accused occupied a designated fiduciary relationship, that the property came into his possession by reason of his employment or office, and that there was a fraudulent intent to deprive the owner of his property. 1954 Op. Att'y Gen. No. 54-6053.
Law reviews. — For note, "Criminal Law: Applying the General/Specific Statute Rule in New Mexico State v. Santiallanes," see 32 N.M. L. Rev. 313 (2002).
For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Embezzlement §§ 1, 6, 7, 8, 9, 24.
Variance between allegation and proof as to the capacity in which one charged with embezzlement received the property, 12 A.L.R. 603.
Individual criminal responsibility of officer or employee for embezzlement, through corporate act, of property of third person, 33 A.L.R. 787.
Embezzlement by one spouse of other's property, 55 A.L.R. 558.
"Embezzlement" within fidelity bond, 56 A.L.R. 967.
Misappropriation of executor, administrator, guardian or trustee as embezzlement, 75 A.L.R. 299.
Sufficiency of verdict on conviction, which fails to state value of property, 79 A.L.R. 1180.
Larceny and embezzlement distinguished, 146 A.L.R. 532.
Embezzlement by independent collector or collection agency working on commission or percentage, 56 A.L.R.2d 1156.
Criminal responsibility for embezzlement from corporation by stockholder owning entire beneficial interest, 83 A.L.R.2d 791.
Conversion by promoter of money paid for preincorporation subscription for stock shares as embezzlement, 84 A.L.R.2d 1100.
Drawing of check on bank account of employer payable to accused's creditor as constituting embezzlement, 88 A.L.R.2d 688.
Motor vehicles, criminal liability in connection with rental of, 38 A.L.R.3d 949.
Partner: embezzlement, larceny, false pretenses or allied criminal fraud by a partner, 82 A.L.R.3d 822.
Retailer's failure to pay to government sales or use tax funds as constituting larceny or embezzlement, 8 A.L.R.4th 1068.
Bank officer's or employee's misapplication of funds as state criminal offense, 34 A.L.R.4th 547.
Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files, or systems, 51 A.L.R.4th 971.
Who is "officer, director, agent, or employee" of bank, or is "connected in any capacity" with bank and therefore subject to prosecution and punishment for misapplication of bank funds under 18 USCS § 656, 57 A.L.R. Fed. 537.
Bankruptcy: what constitutes embezzlement of funds giving rise to nondischargeable debt under 11 USCS § 523(a)(4), 99 A.L.R. Fed. 124.
29A C.J.S. Embezzlement § 1 et seq.