N.M. Stat. § 30-16-8 (2026)

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 against any one victim in any
consecutive twelve-month period 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) against any one victim in any consecutive twelve-month period 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) against any one victim in any consecutive twelve-month period
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) against any one victim in any consecutive twelve-month
period 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) against any one victim in any
consecutive twelve-month period 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; 2025, ch. 69, § 1.

                                    ANNOTATIONS

Cross 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 2025 amendment, effective July 1, 2025, allowed for the aggregation of multiple
incidents of embezzlement within a twelve-month period against any one victim to
determine the applicable penalty; in Subsection B, after "or less" added "against any
one victim in any consecutive twelve-month period"; in Subsection C, after "($500)"
added "against any one victim in any consecutive twelve-month period"; in Subsection
D, after "($2,500)" added "against any one victim in any consecutive twelve-month
period"; in Subsection E, after "($20,000)" added "against any one victim in any
consecutive twelve-month period"; and in Subsection F, after "($20,000)" added
"against any one victim in any consecutive twelve-month period".

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.

District court did not err in denying defendant’s motion for directed where there
was sufficient evidence of embezzlement. — Where defendant was charged with
embezzlement, and where, at trial, evidence was established that in December of 2019,
a customer brought a 2008 Chevrolet pick-up truck into an automotive shop operated by
defendant for repairs, that defendant told the customer that the truck needed a new
transmission and that he could order one, that the customer gave defendant a check for
$3,630, that the check’s memo line stated "2008 Silverado Transmission", that
defendant cashed the check, that over the next several months defendant gave the
customer inconsistent explanations about the transmission’s status, that in May 2020,
the customer had the truck towed from defendant’s shop, and that the truck had been
damaged and was missing parts, and where, after the state’s case, defendant moved
for a directed verdict, the district court did not err in denying defendant’s motion for a
directed verdict, because there was sufficient evidence from which the jury could
reasonably infer that the $3,630 had been earmarked to be used for a particular
purpose, that defendant was entrusted with the money to purchase a transmission, and
that based on the truck’s condition upon recovery and the inconsistent explanations
about the status and location of the transmission that defendant never intended to
complete the work for which he was paid, and that defendant, therefore, converted the
money to his own use. State v. Ferguson, 2023-NMCA-029, cert. denied.

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.