Commonwealth v. Flynn, 167 Mass. 460

Commonwealth v. Flynn

167 Mass. 460 | Mass. | 1897

Morton, J.

The defendant was identified by the witness Driscoll as the man who obtained the bill from her, and, in addition to the representations by which he induced her to part with it, there was evidence that he went away with it and never returned, and that when he was arrested, about ten days later, he denied that he had ever seen her before, gave different names to the officer who arrested him, and said that he had to suffer for some one else. It was competent for the jury to find on this testimony that the title to the bill did not pass to him, and that he obtained, possession of it by fraud, with the present intent to convert it to his own use, and did so. This would constitute larceny. Commonwealth v. Rubin, 165 Mass. 453. Commonwealth v. Lannan, 153 Mass. 287. Commonwealth v. Barry, 124 Mass. 325. The first of the rulings asked for by the defendant was therefore rightly refused.

The remaining instructions which were requested by the defendant present questions of more difficulty.

*464If the circumstances disclosed by the evidence were such as fairly to justify the inference that a relation of trust and confidence arose between the witness Driscoll and the defendant, so that he became her debtor for seventy-five cents, and she gave him credit therefor, then, the title to the bill having passed to him, he could not be convicted of larceny, though he had obtained possession of it by fraud. Commonwealth v. Barry, supra. But if he was only her hand or agent to get the bill changed, with the right to retain twenty-five cents out of it when he had done so, returning the rest to her, and he obtained possession of the bill by fraud, with the intent at the time to appropriate the whole to his own use, and did so, then the title to the bill remained in her, and he was guilty of larceny. Commonwealth v. Barry, and Commonwealth v. Lannan, ubi supra. Commonwealth v. O'Malley, 97 Mass. 584. Justices v. People, 90 N. Y. 12. Murphy v. People, 104 Ill. 528. 2 Bish. Cr. Law, § 808.

Obtaining possession by fraud in such a case is regarded as having the same effect as obtaining possession by trespass. Commonwealth v. Rubin, 165 Mass. 453-455. We think that there was no evidence, or if there was, that it was so slight as to be no more than a scintilla, that fairly would have warranted the jury in finding that the transaction was of the former, and not of the latter character. The undisputed testimony was that the defendant received the bill for the purpose of getting it changed, and that he was expected to do so immediately; and though the witness Driscoll did not expect the bill to be returned to her, but only to receive the seventy-five cents, that does not show, and has no tendency to show, that she had parted with the title to the defendant. But the bill remained her property till he had delivered it to another person, and had received the change. Commonwealth v. Lannan, ubi supra. Nor, for the same reason, was there any evidence which fairly would have warranted the jury in finding that the bill was delivered to the defendant in payment of the twenty-five cents which the witness Driscoll had agreed to pay him, meaning thereby that the property in the bill had passed to him. It was expected that he would receive his pay out of the dollar; but that is very different from saying that the bill, or any part of it, became his, and that the *465effect of the transaction was to convert the witness Driscoll from his debtor into his creditor.

In the view of the case which we have taken, the instructions which we are now considering were each based in some particular on a hypothesis which the evidence did not warrant, and were therefore rightly refused. Those which were given were correct.

The statements which were made by the defendant to the officer are not shown to have been made under such circumstances as to render them incompetent. Commonwealth v. Myers, 160 Mass. 530. Exceptions overruled.