Commonwealth v. Lawless, 103 Mass. 425

Commonwealth v. Lawless

103 Mass. 425 | Mass. | 1869

Wells, J.

1. If the jury found “ that the check was in the custody of the surgeon general on a naked trust for the benefit of Gill,” it was properly described as Gill’s property. It was payable to his order. The surgeon general had no interest in it, and no right to retain it from Gill. It was in his hands only *431for transmission. The beneficial interest, the right of possession, and constructive possession also, were in Gill. That is sufficient. Gen. Sts. c. 172, § 12.

2. The ruling of the court, “that the evidence was sufficient on which to convict of the charge in the indictment,” must be taken in connection with the third prayer for instructions, to which it was in response. That prayer was for an instruction that the evidence “ does not sustain the charge of the indictment.” We understand the ruling of the court below to apply to its sufficiency in law to sustain the indictment, if the jury should be satisfied with its weight; and not as an instruction to them upon the force which they should give to the testimony. We must presume that the jury were rightly instructed as to their province and their duty in regard to the finding of their verdict upon the evidence.

3. The jury were rightly instructed as to the proof of value of the discharge paper. It was an instrument of well known character. Its name, and its description in the indictment and by the evidence, sufficiently informed the jury what it was, and enabled them to judge whether it was or might be of value to the owner. Commonwealth v. McKenney, 9 Gray, 114. Commonwealth v. Williams, 9 Met. 273. Commonwealth v. Riggs, 14 Gray, 376. Its inspection would not have aided them.

4. The defendant, having obtained possession of the dis charge paper by falsely personating the owner, and having converted the same to his own use, or deprived the owner thereof, by means of such fraudulent conduct, was properly held guilty of larceny of that paper. The intent to convert to his own use the bounty money of Gill, which was the inducement to hia crime, may well be held to extend to all the articles which he obtained by the same means, although they were not themselves the object for which he engaged in the undertaking. One who steals a coat is guilty of stealing whatever may be in the pockets of the coat, although he neither coveted the articles nor knew them to be in the pockets. Under the instructions given in this case, the jury must have found that the discharge paper was an incident to the bounty and inseparable from it.

*4325. Evidence that the signature to the receipt for the articles was in the handwriting of the defendant was competent to identify him as the person who had falsely personated Gill and obtained the articles. It is no objection to its admissibility for this purpose, that it also proved him to be guilty of another punishable offence. Commonwealth v. Riggs, 14 Gray, 376.

6. The principal difficulty-in this case arises upon the instruction to the jury that “ if they should find the discharge paper to be of any value they might return a general verdict of guilty, in case they found a larceny of that paper, although they should find the defendant not guilty of larceny of the check.” A verdict rendered upon this instruction, to wit, for larceny of the discharge paper alone, it not being alleged to exceed the value of one hundred dollars, would be for the lesser offence set forth in Gen. Sts. c. 161, § 18, and punishable by the lesser penalty; whereas a general verdict would subject the party to the higher penalty therein prescribed. We are unable to see how the jury could find the defendant guilty of larceny of the discharge paper and at the same time find him not guilty of larceny of the check; and if found guilty of both, as there could be no doubt that the check was, by itself, of the value of one hundred dollars, the verdict would be right as a verdict of guilty of larceny of property exceeding the value of one hundred dollars. But, upon the instruction last referred to, the general verdict might have been rendered upon proof which satisfied the jury only of the larceny of the discharge paper; and therefore we cannot know, and cannot assume, that the jury did in fact find the defendant guilty of larceny of the check. Upon a verdict so rendered, the court could not properly impose the punishment attached to the greater offence. To justify that, the jury should have found by their verdict that the greater offence had been committed; that is, it should be made to appear that they found the defendant guilty of stealing property to an amount exceeding the value of one hundred dollars. Commonwealth v. McKenney, 9 Gray, 114.

So far as this verdict indicates that the jury found the defendant guilty of the greater offence, it was rendered upon instructions which were erroneous; and therefore it cannot be alio wet. *433to operate as a finding that the property proved to have been stolen exceeded one hundred dollars in value. Can it be allowed to stand as a verdict of guilty of larceny to be punished by the lesser penalty prescribed by the statute for larceny of property not exceeding the value of one hundred dollars ? If it can, consistently with the rules of practice in criminal cases, the ends of justice will be better subserved, as it appears to us, than by sending the case back for another trial. The jury have found the defendant guilty of larceny, upon proper evidence, and under instructions which we hold to be unexceptionable. The offence is the same in character, whether punishable by the greater or the lesser penalty. It is wholly set out in one section of the statute, and by the same words ; the distinction consisting only in the degree of punishment inflicted, and that distinction depending solely upon the value of the property stolen. If the allegations of the indictment make the value of the property exceed one hundred dollars, the conviction and sentence can be only of the smaller offence, without proof and the finding of the jury that the value of the property stolen did in fact exceed that sum. But in such case the party may properly be sentenced to the lesser punishment provided by that statute. When there are several counts in the same indictment, or several articles alleged to be stolen in one count, all of which together exceed, but each of which separately does not exceed, the value of one hundred dollars, and a general verdict of guilty is returned, the court may render such judgment and sentence as is appropriate to the case actually developed at the trial. If, in fact, the proof was of but one offence, but one punishment will be imposed ; if larceny is proved of only one of the several articles charged, the conviction and sentence will be only for the lighter penalty. This is the usual and proper course, especially where the several allegations are only different forms of charging the same fact. Crowley v. Commonwealth, 11 Met. 575.

Upon writ of error, it is always presumed that the sentence has been thus adjusted to the offence or offences of which the party has been properly and legally convicted. Josslyn v. Commonwealth, 6 Met. 236. This involves the right and the duty *434of the court so to adjust it. In the case of Commonwealth v. Eastman, 2 Gray, 76, in which a general verdict of guilty was rendered upon an indictment charging larceny of several articles exceeding in all the value of one hundred dollars, there was a motion in arrest of judgment on the ground that the description of the principal article was bad; the remaining articles amounting to less than one hundred dollars in value. The court held that, whether the larceny of the article in question was well charged or not, “it is obvious that in either case a judgment must be rendered upon the verdict. The conviction is certainly right; and the only remaining question is, what is the sentence which is thereupon to be awarded.” The case was accordingly sent back for sentence without determining the sufficiency of the allegation. This decision settles that there is no error in such case, if the sentence does not exceed the proper punishment for so much of the offence charged in the indictment as is legally established by the verdict; and that, so far as the verdict rendered is legally and properly rendered, it may avail for the purposes of judgment and sentence. See Commonwealth v. Remby, 2 Gray, 508; Commonwealth v. Stebbins, 8 Gray, 492.

We think the same principle may be applied to the present case. The defendant is properly convicted of larceny. The only error disclosed by the exceptions is, that, under the instructions given to the jury, they may not have found him guilty of stealing more than one of the several articles described, and therefore may not have found that the larceny was of such an amount of property in value as to warrant the severer penalty imposed by the statute. But this affords no good reason against making the verdict suffice for the lighter penalty. The judge who tried the case might have accepted the verdict and entered judgment as of a conviction for larceny of property not exceeding one hundred dollars in value. The attorney for the government might have avoided this exception by remitting the excess. The statutes give this court authority to make such order in regard to the disposition of the case in the superior court “ as law and justice require.” Gen. Sts. c. 112, § 35; c. 114, § 12. The circumstances of the. case may sometimes be such as to *435make it proper that the prosecution should be pressed for the heavier punishment. The order which we consider most suitable, therefore, is that the exceptions be sustained and the verdict set aside, unless the attorney for the Commonwealth shall move for judgment and sentence as upon conviction of larceny of property not exceeding the value of one hundred dollars; and the case is to be disposed of in the superior court according to this direction. Ordered accordingly.