Commonwealth v. McDonald

187 Mass. 581 | Mass. | 1905

Braley, J.

The motion to quash was overruled properly, as the indictment on its face sufficiently set forth with technical precision enough to charge the defendant with the crime of larceny. Commonwealth v. Adams, 7 Gray, 43. Green v. Commonwealth, 111 Mass. 417.

Under the agreed statement of facts, when supplemented by the defendant’s evidence, it clearly appears that the money collected by him, either as cash from customers, or as returns of the checks which he negotiated, should have been delivered to the captain of the vessel, by whom alone after certain deductions had been made for expenses of the voyage, and necessary disbursements, it was to be divided in the proportion of one fourth to the owner of the vessel, and the remaining three fourths among the crew, which included the defendant.

Upon being selected by the crew, the defendant, as purser, accompanied the captain for the purpose of verifying the amounts received from the various persons to whom fish had been sold. The information thus obtained he was to communicate to them so that they would be fully informed of the financial result of the voyage, and thus be able to determine the share justly due each on its settlement.

In the performance of this service the defendant acted not as a part owner collecting money coming from the common venture, but as an agent for a special purpose.

When the checks were committed to' him, either for custody or collection, and he was authorized to receive the money due from customers whose places of business were on the wharf, he became bound by the understanding between them to deliver to the captain on the following morning the checks, or their proceeds, and money he had collected.

This brings us to the principal ground of defence, that because the defendant lawfully obtained possession of the property, he was guilty of the crime of embezzlement, and not of larceny, and the variance between the allegations of the indictment and the evidence was fatal.

The distinction between larceny at common law and the offence of embezzlement has been fully pointed out, and no further exposition is required in this case. Commonwealth v. James, 1 Pick. 375, 382. Commonwealth v. Ryan, 155 Mass. 523, 527. Commonwealth v. Rubin, 165 Mass. 453, 454. Commonwealth v. Parker, 165 Mass. 526, 539.

It also is plain that under the law as it stood before the St. of 1899, c. 316, now R. L. c. 208, § 26, upon the evidence the defendant was entitled to an acquittal. Commonwealth v. King, 9 Cush. 284. Commonwealth v. O’Malley, 97 Mass. 584. Commonwealth v. Berry, 99 Mass. 428. Commonwealth v. Hussey, 111 Mass. 432. Commonwealth v. Mead, 106 Mass. 319. Commonwealth v. Flynn, 167 Mass. 460.

But since this enactment it has been unnecessary to state the fiduciary relation existing between a defendant and the person entitled to the property embezzled, or to allege that the defendant to whom it had been intrusted converted it to his own use, for the crime of larceny under this statute includes the criminal appropriation of personal property where no trespass, or fraud which has been held equivalent to trespass, in obtaining its possession appears.

By the St. of 1899, c. 409, § 12, now R. L. c. 218, § 38, it is enough for appropriately charging the offence to aver directly that the person accused did steal, without making the usual descriptive averments of asportation, or means used to obtain possession of the property. Commonwealth v. Kelley, 184 Mass. 320, 323.

But as evidence of embezzlement is now sufficient to support a charge for larceny, an indictment which correctly sets forth the latter crime in the customary language of criminal pleading is ample to sustain a conviction thus obtained.

If the defendant desired further information to enable him to meet a more definite claim by the government than was shown by its formal allegations, or more fully to make his defence, it was open to him as of right to ask for specifications setting forth such additional facts. R. L. c. 218, § 39.

This statutory provision fully preserved his constitutional rights, and afforded him ample protection from being misled, or rendered unable to meet the real accusation made against him. Commonwealth v. Kelley, ubi supra. See Commonwealth v. Dill, 160 Mass. 536, 537; Commonwealth v. Robertson, 162 Mass. 90, 96.

But after filing a motion for a bill of particulars, the request was not urged, and he evidently was content to meet the issue as formally charged.

Another exception relates to the allegation of ownership, but this was amply sustained by the evidence, for Hamilton, being the master, and accountable to the owner of the vessel and the crew, had a special property in the money received within the provisions of R. L. c. 219, § 9. Commonwealth v. Blanchette, 157 Mass. 486, 489.

We find no error of law in the instructions given to the jury, and the rulings requested were refused rightly for reasons already stated. After judgment had been entered on the verdict and sentence imposed, an order was passed, from which the defendant appealed, directing that the money in his possession at the time of the arrest be restored to the owner as provided in R. L. c. 208, § 39.

In proceedings under the statute for such restoration it became a question of fact whether this money was a part of the amount wrongfully taken by him, and as there was evidence from which this could be found, the finding of the judge is conclusive, and not subject to review. Commonwealth v. Boudrie, 4 Gray, 418. Schendel v. Stevenson, 153 Mass. 351, 354.

Exceptions overruled ; order affirmed.