Commonwealth v. Butterick

100 Mass. 1 | Mass. | 1868

Foster, J.

1. The objection that the description of the property alleged to have been embezzled is vague and indefinite does not appear to be well founded. The language used is sufficiently definite and intelligible to identify the property and show that it was such as may be the subject of embezzlement. No greater particularity of description is requisite in an indictment for embezzlement than in one for larceny, in which such a description would be sufficient. Commonwealth v. Stebbins, 8 Gray, 492. Commonwealth v. Concannon, 5 Allen, 506. Commonwealth v. O’ Connell, 12 Allen, 451. Gen. Sts. c. 161, § 42.

2. It was not necessary to show that the several bonds were misappropriated by separate acts, or at different times, in order to justify a conviction on each of the counts in which the bonds are separately described. In this respect the law of larceny and embezzlement is alike. And it is an ancient and well established rule that the taking of divers articles at one time may be treated as constituting a distinct larceny of each article stolen. 2 Russell on Crimes, (4th Eng. ed.) 127. 2 Hale P. C. 246.

3. The defendant, having received a note for the purpose of causing it to be discounted for Perley Bartlett, misappropriated and embezzled the note itself, when he sent it to the cashier with other notes of his own to be discounted on his own private account and procured the proceeds to be passed to his own credit. The verdict of the jury establishes the fact that this was done with a fraudulent and felonious intent. If so, the act of embezzlement was complete as soon as the note was delivered to the cashier to be thus misused; and of course the subsequent payment of a part of the money on Bartlett’s account and at his request could not purge the previous criminal act, or relieve the defendant from its penal consequences.

4. With reference to the bonds pledged to the defendant by Beaman to secure a debt on which the defendant was liable as indorser, and which Beaman paid at maturity, we fail to perceive the force of the suggestion that the trust on which the defendant held them terminated on payment of the note. After its payment relieved the defendant from liability, he still held the bonds in his custody, upon the further trust to restore them to Beaman on demand; and then, if not before, he might be guilty of embezzlement by fraudulently misappropriating them. It does not appear by the indictment, or the evidence, at what precise time the fraudulent act of conversion was committed. It may have been after the note was paid. If so, a fraudulent and wrongful pledging of these bonds for the defendant’s own debt amounted to embezzlement. Commonwealth v. Tenney, 97 Mass. 50.

5. The questions proposed to Beaman on cross-examination were properly rejected. ' The inquiry, what the witness would have done if the defendant had done something which he did not do, was wholly irrelevant, and admitted of only a conjectural answer. No legitimate inference could be drawn from the opinion of the witness as to his probable conduct in a contingency which never existed. So also the question, whether the witness had any objection in his own mind to the defendant’s doing an act not contemplated or proposed or spoken of by either party, had no tendency to show a consent or authority given to do the act. Stewart v. Harvard College, 12 Allen, 58. The unauthorized pledging of the bonds for the defendant’s own debt was a conversion, and the jury have found that it was committed with a fraudulent intent.

6. But there is another objection to the conviction on the fourth count, which in our opinion must prevail. Whether one who held the property of another as collateral security could have been convicted of embezzlement for pledging it to secure his own debt, if there were no statute provisions specially applicable to such a case, we need not decide. The Gen. Sts. c. 161, § 64, provide that the punishment for disposing of collateral security before the debt is due to secure which it has been given shall be a “fine not exceeding five hundred dollars, or imprisonment in the state prison or jail not exceeding two years.” The punishment for embezzlement is by § 35 of the same chapter made the same as that for simple larceny. By § 18 the punishment of larceny depends on the value of the property stolen, and, where that exceeds one hundred dollars, as it did in this case, the offence may be punished by imprisonment in the state prison not exceeding five years or by fine not exceeding six hundred dollars and imprisonment in the jail not exceeding two years. If then the defendant disposed of the bonds pledged to him by Beaman before the note which was paid at maturity was due, and while he held them as collateral security, he committed an offence punishable under the sixty-fourth section, and not the crime of embezzlement, which is the one charged in the fourth count. But the instruction of the court permitted the jury to find a verdict of guilty in either case, and did not point out the distinction which we have just indicated. For this reason there must be a new trial on this count only, unless the government elect to enter a nolle prosequi.

7. The motion to quash the several counts cannot be sustained. After the decision of Commonwealth v. Smart, 6 Gray, 15, in 1856, the St. of 1857, c. 233, (Gen. Sts. c. 161, § 35,) considerably enlarged the crime of embezzlement. Commonwealth v. Hays, 14 Gray, 62. As the law now stands, the nature of the trust on which the defendant held the property of Harbach was sufficiently set forth, and it appears on the face of the indictment that he held it under such circumstances that by its fraudulent conversion he might be guilty of embezzlement.

There was no need of any special averment that the title to the several pieces of property embezzled continued in the parties who intrusted them to the defendant down to the point of time when the embezzlement was committed. This sufficiently appears in each of the counts. No more precise statement in this respect is usual; and the indictment in this particular conforms to approved precedents. The King v. Johnson, 3 M. & S. 539. The ownership at the date of the delivery of the property to the defendant is aptly alleged, and this may well be presumed to have continued, inasmuch as it is averred that the embezzlement occurred while the trust continued on which the property was received. No particulars of the act of embezzlement need be stated. Gen. Sts. c. 161, § 42.

The observations already made sufficiently dispose of the motion to quash the fourth count. But no conviction can be maintained upon it unless the fraudulent conversion took place after payment of the debt as security for which the bonds were pledged to the defendant.

Motion to quash overruled. Exceptions sustained upon the instructions as to the fourth count only.