97 Mass. 584 | Mass. | 1867
We are of opinion that there was no evidence to sustain the indictment for embezzlement, and that the' conviction was wrong. The defendant had been previously acquitted of larceny upon proof of the same facts ; and it is therefore of great importance, to him, if the offence committed, if any, was larceny, that it should be so charged.
To constitute the crime of embezzlement, the property which the defendant is accused of fraudulently and feloniously converting to his own use must be shewn to have been entrusted to him, so that it was in his possession, and not in the possession of the owner. But the facts reported in the bill of exceptions do not shew that the possession of the owner of the money was ever divested. She allowed the defendant to take it for the purpose of counting it in her presence, and taking from it a dollar, which she consented to lend him. The money is alleged to have consisted of two ten dollar bills, three five dollar bills, a two dollar bill, and a one dollar bill, amounting in all to thirty-eight dollars. The one dollar he had a right to retain, but the rest of the money he was only authorized to count in her presence and hand back to her. He had it in his hands but not in his possession, any more than he would have had possession of a chair on which she might have invited him to sit. The distinctian pointed out in the instructions of the court between his getting it into his bands with a felonious intent, or forming the intent after he had taken it, was therefore unimportant. The true distinction, upon principle and authority, is that stated by
Exceptions sustained.
