| Mass. | Feb 26, 1906
1. The motion to quash was rightly overruled. The objection specifically assigned is that “in none of said counts is it alleged that the defendant was charged with any duty in reference to the books of the corporation named in said indictment, or had access or right of access to said books'.” This case comes within the general principle that it is enough if the crime be charged in the language of the act creating it. Commonwealth v. Ashton, 125 Mass. 384" court="Mass." date_filed="1878-09-03" href="https://app.midpage.ai/document/commonwealth-v-ashton-6419376?utm_source=webapp" opinion_id="6419376">125 Mass. 384. Commonwealth v. Prescott, 151 Mass. 60" court="Mass." date_filed="1890-02-25" href="https://app.midpage.ai/document/commonwealth-v-prescott-6423386?utm_source=webapp" opinion_id="6423386">151 Mass. 60. Commonwealth v. Dill, 160 Mass. 536" court="Mass." date_filed="1894-02-28" href="https://app.midpage.ai/document/commonwealth-v-dill-6424838?utm_source=webapp" opinion_id="6424838">160 Mass. 536.
2. The exception to the admission of what was said by others in the defendant’s hearing was not well taken. It was admitted on the ground that the defendant, by remaining silent, admitted that what was stated was true; as to which see Commonwealth v. McCabe, 163 Mass. 98" court="Mass." date_filed="1895-02-27" href="https://app.midpage.ai/document/commonwealth-v-mccabe-6425173?utm_source=webapp" opinion_id="6425173">163 Mass. 98; Commonwealth v. Funai, 146 Mass. 570" court="Mass." date_filed="1888-05-03" href="https://app.midpage.ai/document/commonwealth-v-funai-6422770?utm_source=webapp" opinion_id="6422770">146 Mass. 570; Commonwealth v. Brailey, 184 Mass. 527; Commonwealth v. Brown, 121 Mass. 69" court="Mass." date_filed="1876-10-20" href="https://app.midpage.ai/document/commonwealth-v-brown-6418634?utm_source=webapp" opinion_id="6418634">121 Mass. 69. The principle is admitted by the defendant, but what he complains of here is its application. The facts were as follows: Since its organization in 1884, the defendant was and had been the corporation clerk and general manager of a co-operative association organized under R. L. c. 110. Since its organization the association had declared quarterly dividends until October, 1903. At a meeting of the directors on October 26, 1903, it appeared that while the report of the defendant as general manager for the preceding quarter showed an apparent profit that would justify the payment of a dividend, there was not sufficient cash to pay it. An examination of the books of the corporation by experts showed a shortage of cash. The examination also disclosed entries in the handwriting of the defendant, some in pencil and some in ink, some on the stubs of the check books “ issued ” by two banks, and some on the journal of the corporation purporting to show deposits, at certain periods, of moneys in said banks which had not been actually made therein, and also of balances in said banks at certain periods which were incorrect, and these entries were the subject of the indictment. There was also evidence tending to show that these entries were made to force cash balances at the time of the quarterly dividends. After the Commonwealth had introduced in evidence without objection certain statements made by the defendant at the directors’ meeting of October 26, to the effect that the shortage was caused by paying dividends that had not been earned, and that the dividends had been declared to save the “honor” of the association, a witness was allowed to testify, against the objection of the defendant, that later the president of the association said in the defendant’s hearing that the de
3. The first ruling asked for was properly refused. The defendant’s argument in support of his exception to the refusal to give this ruling is that the assets belonged to the shareholders, and if the shareholders received dividends that they did not earn they had not thereby lost anything. The difficulty with the defendant’s contention is that such a dividend is a fraud in itself. It is not true, as the defendant assumes in his contention, that the only effect of such a dividend must be to transfer to the pockets of the shareholders money which of necessity belonged either to the association or to them. If the association was made insolvent by these dividends, the money divided did not belong to the shareholders but to the creditors of the association. Even if it was solvent, these entries may have been made to induce sales of merchandise to the association on a credit to which it was not entitled, or the sale by shareholders of shares for more than their real value, or to induce the association to continue in business or to continue to employ the defendant, which it would not have done had the facts been known. Any one of these would be fraudulent. The ruling was rightly refused.
4. There is nothing in the defendant’s argument that because the check books (on the stubs of which false entries of deposit were made) were “ issued ” by the banks they were not books of entry of the association within the meaning of R. L. c. 208, § 58. These check books became books of the association within the meaning of the act, by the accounts of the association being kept in them by the officers and clerks of the association. Whether the books were given to the association or bought by it was of no consequence.
Exceptions overruled.