217 Mass. 473 | Mass. | 1914
This is an indictment in ninety-two counts.
The statute for infraction of which the defendant was found guilty never has been before this court for construction. It was
There is nothing in the words of the statute, its history or the evil against which it appears to be directed, to indicate that there should be read into it any of the constricting limitations argued for by the defendant. He contends in effect that it was not intended to include larceny or obtaining of money by false pretenses, and is confined in its scope to embezzlement, and that it implies that the money or property appropriated or converted must be in the possession of the officer or agent. These contentions cannot be supported. To adopt them would be subversive of the manifest purpose of the act. It would be contrary to the trend of modern jurisprudence, which is away from the niceties of ancient criminal pleading and practice toward a simplicity and plainness which affords to defendants every reasonable protection, while depriving them of the opportunity to profit at the expense of the general public from mistakes of unwary prosecuting officers. The scandal which formerly existed in the administration of justice arising from the fine distinctions between larceny, embezzlement and obtaining property by false pretenses has been described in Commonwealth v. King, 202 Mass. 379, 388. It cannot be supposed that the statute in question, although enacted somewhat earlier than the simplification of criminal pleading act, was intended to perpetuate or increase confusion in this respect. It was aimed by its terms at fraudulent breaches of trust, by which a faithless corporate officer or agent took its estate. The natural meaning of its words leads to this result. This interpretation is confirmed by reference to the proceedings of the Senate when the original statute was
It is not necessary, nor is it attempted to give a complete exposition of this section of the statute. It is enough to say that it does not require previous possession of the money appropriated or converted by the officer. It is satisfied if there is any appropriation or conversion through any fraudulent means.
The defendant urges that the evidence did not warrant a finding that he was guilty of any crime. Broadly stated, the defendant’s position at the trial was and now is that he became possessed of the property of these several corporations by borrowing it from them upon his note, and that the sum of his doings constituted only these simple and innocent transactions. His conduct was susceptible of this construction. But this was not its necessary complexion.
The contention of the Commonwealth was that the defendant contrived the scheme of forming mining companies for the purpose of getting from the investing public large sums of money where he could control and use them in his stock speculations.
The evidence was extremely voluminous. No attempt will be made to state it at length. It is enough to say upon the direct testimony and its fair inferences in the aspect most adverse to the defendant, that there was ground for finding that he was the president, a director and the dominating person in all of these corporations, which were copper mining companies not yet pro
These, which might have been found to have been the facts, were sufficient to warrant the verdict of guilty.
The numerous false statements under oath that stock had been paid in cash, whereas the only thing in the treasury was the defendant’s unsecured note, were significant of an evil purpose. An unsecured note is not cash. Pierce v. Bryant, 5 Allen, 91. Harvey-Watts Co. v. Worcester Umbrella Co. 193 Mass. 138.
The defendant was himself president and director and, in fact, the financial manager of each corporation. It was his duty in that capacity jealously to guard its interests and be vigilant to see that its resources were conserved. If the treasurer was dealing with the funds contrary to the by-laws or without the authority of the directors, it was his duty to restrain him. To be the means of procuring money for himself under the circumstances might have been found significant of fraud. Other portions of the evidence might have been found to point to a fraudulent purpose and to an intent to appropriate to his own use money which belonged to the corporations.
Every element of the statutory offense charged in the counts upon which he was held to be guilty might have been found upon the evidence. The defendant was president and director of all the corporations and hence an officer. Commonwealth v. Wyman, 8 Met. 247, 252. The corporations unquestionably were doing business in this Commonwealth. The defendant appropriated to his own use moneys of the corporations fraudulently, because he took that which he might have been found to know was unauthorized by the stockholders, the directors, the by-laws or the domiciliary law of the corporations. Commonwealth v. Tuckerman, 10 Gray, 173. Parker v. Nickerson, 112 Mass. 195. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159,191. Malden & Melrose Gas Light Co. v. Chandler, 209 Mass.
It follows that the case rightly was submitted to the jury, and that each of the defendant’s requests for instructions, so far as not given and now material, were denied properly.
The Commonwealth was permitted against the exception of the defendant to introduce evidence as to his transactions with the Corbin Copper Company, which was organized by him and whose entire capital stock he took and subscribed for by his demand note. His transactions with this company in respect of large payments to him by its checks in payment for his unsecured notes resembled in its salient features those with other companies as to which he was indicted. But there were no counts in the indictment respecting his relations with the Corbin Company. This evidence was admissible as tending to show the defendant’s , intent in the transactions as to which he was indicted. The affairs of the Corbin Company, though distinct from those of the other companies as matter of records and accounts, were so closely connected in all other respects as to make them competent evidence. Where an act is equivocal in its nature and may be criminal or honest according to the intent with which it is done, then other acts of the defendant and his conduct on other occasions may be shown in order to disclose the mastering purpose of the alleged criminal act. Where the intent of one charged with crime is to be proved, a wider range of evidence is allowed than in support of other issues. Commonwealth v. Jeffries, 7 Allen, 548. Commonwealth v. Scott, 123 Mass. 222. Commonwealth v. Blood, 141 Mass. 571. Commonwealth v. Robinson, 146 Mass. 571, 578. Commonwealth v. Stuart, 207 Mass. 563, 568. Even though the evidence may have tended to prove another like crime, it was so connected with those charged in the indictment as to show unity of plot and design and that all were influenced by a single and contemporaneous motive and were parts of a common scheme. Commonwealth v. Choate, 105 Mass. 451, 458. Jordan v. Osgood, 109 Mass. 457.
The defendant suffered no harm from the exclusion of the question in cross-examination of the treasurer, whether he thought the defendant perfectly responsible financially. This inquiry had been answered in substance earlier in the examination and the
The applications to the Boston Stock and Curb Exchanges for listing of the stocks of several of these companies, and the financial statements in connection therewith, were competent. They were signed by the defendant and contained statements as to the condition of the treasury of each, which might have been found to be false. Being deceptive in respect of the indebtedness of the defendant to the corporation, they supported the view that the listing of the stock and the consequent improved opportunity for sale of the stock to the public were parts of a general plan of the defendant.
The annual reports of the several companies to the State of Michigan, signed by the defendant, were admissible. They might have been found to have been false as to the financial condition of the companies in material respects, and, if so, they bore upon his intent.
The annual reports to the stockholders were competent evidence. These were made up by the treasurer and submitted to the defendant for his approval before being presented. The treasurer testified that he made out cash and notes receivable indifferent items, but at the direction of the defendant grouped them together. This might have been regarded as significant of a design to deceive in instances where there was comparatively little cash and large amounts of the defendant’s notes.
The notices calling for assessments on the stock were received in evidence rightly. They were signed by the defendant and stated in substance that the money derived from the assessment was to be used for the development of the mines.. In truth, large sums from such assessments were taken by the defendant. Evidence of the borrowings of two companies from the American Trust Company likewise was admissible. These had a tendency to disclose the intent of the defendant in subsequently procuring some of these moneys for himself. Commonwealth v. Walker, 108 Mass. 309, 312. Commonwealth v. Althause, 207 Mass. 32.
A conversation between the defendant and a representative of the Boston News Bureau was admitted in evidence, in substance to the effect that the latter said the Dow stocks were under pressure, and he asked the defendant whether there was anything
The advertisement in the Boston American, disguised as news, which might have been found to have been prepared under the direction of the defendant, and which was used by him for distribution, contained false statements as to the financial resources of the company and might have been found to be “well adapted to attract the attention and gain the confidence of credulous people.” It was admitted rightly as bearing upon the general purpose and intent of the defendant. Commonwealth v. King, 202 Mass. 379, 393.
Evidence tending to show the defendant’s financial embarrassment was competent. Commonwealth v. Jeffries, 7 Allen, 548, 565. Commonwealth v. Drew, 153 Mass. 588, 595, 596.
Testimony of great extravagance in living by the defendant was admissible. Its weight might be great or small according to circumstances. But it cannot be said not to have been found a confirmation of the need of the defendant for money and of his motive in appropriating it. Commonwealth v. Mulrey, 170 Mass. 103, 111. Commonwealth v. King, 202 Mass. 379, 392.
The trial judge made a memorandum in his allowance of the defendant’s substitute bill of exceptions in these words: “Certain exceptions stated herein . . . were taken at the trial, but were not reduced to writing, filed with the clerk, and notice thereof given to the Commonwealth within the requirements of R. L. c. 219, § 35, and were not included in the original bill of exceptions filed by the defendant. . . . These exceptions I allow so far as I have the power to do so.” This was a proper form in which to raise the question whether the exceptions are before this court rightly. Commonwealth v. Greenlaw, 119 Mass. 208.
The exceptions thus included in the amended bill, but left out of the original bill, cannot be considered. While liberality is to be exercised in permitting an excepting party to correct errors or supply omissions where a party has attempted to state all upon which he expects to rely, yet “if he files a bill containing certain
What has been said disposes of all the exceptions respecting evidence which are open to the defendant and which seem to merit discussion. All of them are concluded adversely to his contentions by the principles to which reference has been made.
The presiding judge in his charge read copious extracts from the opinion of this court in Commonwealth v. Tuckerman, 10 Gray, 173, concluding with the statement, “Those statements, so far as they apply to the evidence in this case, I give you as the law in this case.” The practice of stating the governing principles of law too jury in the exact language of a decided case long has prevailed in this Commonwealth. Postv. Leland, 184 Mass. 601. It is the office of a charge to inform the jury plainly and intelligibly as to the rules of law applicable to the issues and evidence, and necessary or helpful to guide them to a just verdict. In performing this duty the trial judge in his discretion may use his own words or may quote from others. This is the general practice and has its foundation in practical wisdom. People v. Niles, (Cooley, J.,) 44 Mich. 606,609. People v. Breen, 181 N. Y. 493. 12 Cyc. 614 and cases there cited. The conduct of the judge of the Superior Court is not open to the defendant’s criticism that so many of the facts of the Tuckerman case were read as to prejudice the jury. Moreover, at the defendant’s request his rights in this regard were guarded fully at the conclusion of the charge.
After verdict the defendant moved for an arrest of judgment on the ground in substance that the counts upon which he was convicted describe the same offenses as those upon which he was at the same time found not guilty, and that hence there is inconsistency and repugnancy in these several verdicts. He relies in this regard upon the verdicts of not guilty upon the counts charging larceny, and upon the fact that in response to his motion the Com
The motion in arrest of judgment was denied rightly.
Exceptions overruled.
The case was tried before Brown, J.