Commonwealth v. Bennett

118 Mass. 443 | Mass. | 1875

Endicott, J.

1. This indictment is under the Gen. Sts. c. 161, § 42. That section provides that in prosecutions for embezzling bullion, money, notes, bank notes, checks, drafts, bills of exchange, obligations or other securities for money, it shall be sufficient to allege generally in the indictment an embezzlement of fraudulent conversion “ of money to a certain amount, without specifying any particulars of such embezzlement.” The allegation here is of an embezzlement of “ certain money to the amount and value of twenty-five thousand dollars.” This is in conformity to the statute, and in accordance with the practice which has prevailed under this and previous statutes. Rev. Sts. a. 133, § 10. St. 1834, c. 186, § 2. Nor is it open to the objection, that the offence is not set forth “ fully and plainly, substantially and formally,” as required by the Declaration of Rights, art. 12. The defendant, if he had desired, could have applied for a specification of the particular acts relied on by the government; as may be done in other cases where the offence is of a general nature, and the charge is in general terms. Such an application might have been made at the trial, and granted by the court if in its discretion the circumstances of the case required it. Commonwealth v. Wood, 4 Gray, 11, 13.

2. The allegation that the defendant did receive and take certain money “of the said Prescott & Wood,” is a sufficient allegation that it was the money and property of Prescott & Wood. In Eastman v. Commonwealth, 4 Gray, 416, the indictment charged the defendant with stealing a bank bill “of the goods and chattels of one Daniel Carter; ” and it was held that, while a bank bill might not be properly termed goods and chattels, yet those words might be rejected as surplusage, and the indictment stand as properly charging a larceny of the property of Carter.

3. To prove the embezzlement, the books of Prescott & Wood were produced containing entries by the defendant from October 1, 1874, to February 6,1875. The government offered in evidence a transaction under dates of October 1, 2, 3, showing errors of addition, and that the apparent receipts were less than the act-gal receipts. Other similar transactions with similar errors during October, and false charges on February 2 and 6 following, were also offered.

The government contended that these separate transactions after October 3 could be put in evidence, and the defendant convicted of embezzling the whole amount. The defendant objected to the admission of any transaction after October 3. The court ruled that under the indictment the defendant could be convicted of only one act of embezzlement, but evidence of his other acts was competent on the question of intent. This ruling, that the other acts were competent for that purpose, was correct. Gen. Sts. c. 161, § 42. Commonwealth v. Tuckerman, 10 Gray, 173. Commonwealth v. Shepard, 1 Allen, 575. Commonwealth v. Edgerly, 10 Allen, 184. Commonwealth v. Coe, 115 Mass. 481.

Evidence was then introduced of admissions by the defendant in regard to the false entries of February 2 and 6, to the effect that he did take $75 on February 2, and $300 on February 6; but there was no evidence that he took money on any of the previous dates, except what appeared upon the books as introduced. And the presiding judge ruled, as requested by the defendant, that the evidence presented by the books would not in itself amount to an embezzlement, or alone warrant a conviction.

The government was then allowed to elect and rely upon the transaction of February 6, when the defendant admitted that he took $300, as the principal embezzlement, and the transaction of February 2 as evidence of the intent with which he took the $300. We see no objection to this course. It does not appear that the government had previously made any election to treat the transaction of October 1, 2, 3, as the principal embezzlement, and the questions argued by the defendant on that point are not raised in this case. The election to proceed on the transaction of February 6 was the only election made, and that after the evidence was all in. It was clearly within the discretion of the presiding judge. Commonwealth v. Slate, 11 Gray, 60. Commonwealth v. Edds, 14 Gray, 406. Nor does it appear that the government contended or that the court ruled, when the case was submitted to the jury, that any other transaction except that of February 2, of which there was proof of actual embezzlement, was competent on ;he question of the intent with which the defendant took the. money on February 6.

4. The defendant was not a partner. He had only a contingent interest in the profits, and no interest in the property or capital of Prescott & Wood. Haskins v. Warren, 115 Mass. 514, 539. The ruling that he could not be convicted, if he supposed, when he took the money, that he was a partner, was sufficiently favorable to him.

5. There is no just ground of exception to the ruling that if the jury found that the money came into the defendant’s hands-by virtue of his employment, and he fraudulently converted it to his own use, he could be convicted under the indictment. There was evidence that it came into his possession ,• whether it was in his possession by virtue of his employment, was for the jury to determine. Upon all these questions, there was evidence which warranted the submission of the case to the jury.

Exceptions overruled.