Embezzlement is the theft or misuse of money or other property that has been entrusted to a person (the "trusted person"). Embezzlement is generally treated as a separate crime from larceny or theft, although the distinction is sometimes blurred. Still, the elements of the offense that the prosecution must prove are outlined in a separate embezzlement statute.
Embezzlement is a property crime where an individual is entrusted to care for money. If an employee manages the money that does not belong to him, he faces embezzlement charges. For example, if the business owner gives a trusted employee read access to the company's bank account and the employee uses the money for his reasons, he may face embezzlement. This usually involves violations of the so-called principle of trust, meaning the employee is trusted to have access to the money but is not trusted to manage it properly.
Unique Facets of the Crime
Before preparing a defense to criminal charges, you first need to understand how the criminal process works and what you're facing. This is true for any form of criminal charge--including embezzlement--, but it's essential for embezzlers.
Embezzlement is similar to larceny in that both crimes involve taking property belonging to another.
Embezzlement, however, requires a defendant who has been entrusted with the property.
The defendant's position within a company will often determine which crime applies. Store clerks are not entrusted with the money in the register, so taking it will constitute larceny. If the store manager takes the same money, the crime should be charged as embezzlement.
While fraud and embezzlement are crimes, the actions (or, to be more precise, the intent) is different for each crime. Fraud occurs when the defendant gains ownership of the victim's property through misrepresentationa scheme to obtain the title to the property.
For instance, if Bob convinces his neighbor, Tim, to sign Tim's house over to Bob, then Bob has committed fraud. Bob pretends he and his neighbor are business partners and convinces Tim to sign the house deed to Bob's new company. He didn't really "steal" Tim's house. He snuck into Tim's house and took the title to the new company. The property is still Tim's, but Bob will show up at Tim's house later and ask, "Can I rent the house from you?" Tim will be sued by an eviction company and thrown out of his house if he doesn't pay rent. Meanwhile, Bob will sell Tim's house at a lemonade stand.
By contrast, embezzlement occurs when the defendant takes some form of value that belongs to a victim and claims it as the defendant's own. For instance, if Bob gives Tim a tool to repair his car and promises to pay for it, but Bob never pays for it, then Bob has committed embezzlement, not a fraud. Bob didn't "steal" Tim's money. He just took a tool from Tim and claimed to be the owner. The property is still Tim's, but Bob shows up at Tim's house later and claims Tim owes him money for the tool, and then Tim is sued and thrown out of his house if he doesn't pay Bob.
Claims of fraud can be a complex process involving numerous stakeholders and complex decision-making.
Your company's last need is for a trusted employee to be convicted of embezzlement. Unfortunately, this happens too often and to too many companies. Embezzlement is a kind of theft involving an employee taking the assets or property of their employer and using it for personal use.
An employee attempting to cover up their theft often makes matters worse for the company and themselves. Three elements enter into the crime of embezzlement:
- The first element is that the property involved is stolen.
- The second is that the taking was unlawful.
- Third, it must be shown that the taking was done to deprive the owner of the property permanently.
- Fourth, and most importantly, the taking must be with fraudulent intent.
A person unable to distinguish between their rights and the rights of others acquires no title to the property. Sometimes, a "mistake of fact" will preclude a finding of intent to misappropriate funds.
Mitigating factors may include the defendant's manner of acquisition of the property and the foreseeability of an evidentiary challenge.
Retribution and Punishment
That means that you should try your best to get back what you're owedeven if you can no longer provide the money, you can ask for a reasonable amount based on the available information. If you cannot pay the debt, you may still ask the judge to reduce your penalty. The judge may accept or remind the defendant that the debt is essential.