165 Mass. 526 | Mass. | 1896
The motion to quash was rightly overruled. If the indictment had contained the word “and” between the different allegations naming the property embezzled, it would have been perfect in form. We think the omission of this word is not fatal to it. It was evidently the intention of the pleader to charge the embezzlement of fifty pieces of paper, and also of fifty railroad tickets, so that his proof might be applied to either description that was deemed proper. It has repeatedly been held that an indictment charging larceny of a certain number of pieces of paper, each of a certain stated value, is good. Regina v. Perry, 1 Car. & K. 725. Rex v. Mead, 4 Car. & P. 535. Rex v. Bingley, 5 Car. & P. 602. Rex v. Vyse, 1 Moody C. C. 218. Regina v. Watts, 4 Cox C. C. 336. “ No greater particularity in the description of the property is required, in an indictment for embezzlement, than in one for larceny. Commonwealth v. Concannon, 5 Allen, 502. Commonwealth v. Butterick, 100 Mass. 1.” Per Colburn, J., in Commonwealth v. Pratt, 137 Mass. 98, 106. The term “ railroad tickets ” is a sufficient description of property without a more particular statement of what the tickets are. There is no such difference between pieces of paper and railroad tickets in reference to the statutes punish
An ordinary railroad ticket in such form as to show that an innocent holder of it is entitled to ride over a railroad ought to be considered either a certificate of the payment of fare and of the acquisition of a right to ride, or a valuable contract in force, being the informal printed statement given by the railroad corporation as its agreement to carry the bearer over its railroad. The fourth request for an instruction was therefore rightly refused.
The defendant made several requests for instructions based upon the theory that there was some evidence which would have warranted the jury in finding that the defendant appropriated the ticket outside of this Commonwealth. There was evidence that the ticket on which the government relied was sold on August 9, 1894, to one Holmes, a detective, in New York, and entitled the purchaser to a ride from New York to Springfield. Holmes testified that this ticket was taken by the defendant soon after leaving New York. It was the duty of the defendant, on his arrival in Springfield, to return this ticket to the office of the railroad company on the day he received it. The defendant was arrested on August 17, and up to this time the ticket had not been returned. There was also evidence that the defendant was in the habit, from some time prior to August 9 down to the time of his arrest, of trading tickets for produce at a shop in Springfield kept by one Mesick, and that this ticket was procured from Mesick on the morning of the defendant’s arrest. We find no statement in the bill of exceptions whether the ticket had been punched by the defendant or not; but the trial proceeded upon the ground that the ticket in question had not been punched, and we assume this to be the fact.
On this state of facts, we are of opinion that the defendant was not entitled to the instructions requested. Our statutory provisions relating to embezzlement provide that one who embezzles “ shall be deemed guilty of simple larceny,” or “ deemed guilty of larceny.” Pub. Sts. c. 203, §§ 37, 39, 40, 41, 43. The crime, therefore, which a person commits who violates the provisions of these sections, is that of larceny. Commonwealth v. Pratt, 132 Mass. 246. In Commonwealth v. Holder, 9 Gray,
The offence of embezzlement has been often stated to be larceny committed by a certain class of persons, without a trespass, or, in other words, a statutory larceny. See Commonwealth v. Macloon, 101 Mass. 1, 6; Commonwealth v. White, 123 Mass. 430, 433.
It may be suggested that the doctrine above stated in regard to larceny at common law rests upon a legal fiction, namely, that by taking the stolen property into another State the thief commits a new taking, and that in embezzlement there is no wrongful taking. But we do not see why it may not equally well be said that, so long as a person who embezzles property continues in possession of it, he newly converts it. In England it is well settled that a person may commit an act in one county which renders him liable to be there indicted for embezzlement, and yet he may commit another act in relation to the same property in another county for which he may be there indicted for embezzlement. The King v. Taylor, 3 B. & P. 596. Rex v. Hobson, Russ. & Ry. 56. Regina v. Murdock, 2 Den. C. C. 298. The Queen v. Rogers, 3 Q. B. D. 28.
Since 1878, we have had a statute which seems broad enough to cover the case of a person having embezzled property in his possession, without regard to the place where he first embezzled it. As first passed it read as follows: “ A person charged with embezzlement may be complained of, or indicted, tried, and sentenced, in any county in which he had possession of the property alleged to have been embezzled.” St. 1878, c. 105. This was re-enacted in the Pub. Sts. c. 213, § 20, so as to read as follows: “ The offence of embezzlement may be prosecuted and punished in any county in which the person charged had possession of the
We are of opinion, therefore, that he could be indicted here.
The defendant was not prejudiced by the testimony of States. The various acts and resolves introduced in evidence show that the New York, New Haven, and Hartford Railroad Company, although acting under legislative authority from Massachusetts, Connecticut, and New York, is, in the transaction of business, but a single corporation. In the language of the indictment, it was “ duly and legally established ” in Massachusetts, as well as in Connecticut and New York, but its money and other property belong to a single owner.
There was no error in the admission of the tickets taken from Gunn by the city marshal, nor in the introduction of the rule of the railroad company in regard to punching tickets with an extra baggage punch, nor of the testimony of the witnesses Holmes, Dotzer, Butterfield, and Gunn. Until the evidence was all in, it was not known whether the Commonwealth would be called upon to elect upon which ticket or tickets it would rely. Most, if not all of this evidence was competent for consideration upon the issue as it was finally submitted to the jury after the election by the district attorney. Exceptions overruled.
In the opinion of the Chief Justice and Mr. Justice Allen, the exceptions should be overruled, but upon a narrower ground, which may be expressed as follows.
Where a servant’s duty in respect to his master’s property in his care or custody is continuous, and extends over different States, and his first duty of accounting to his master for the property arises here, an embezzlement by him which is begun in another State but is not manifested there by any known overt act, and which is continued in this State, and is made complete and manifest here by an intentional failure or refusal to turn over the property as he is bound to" do, is an offence for which
Mr. Justice Knowlton dissents from that part of the opinion which holds that our decisions in regard to larceny should be so extended as to make an act of embezzlement committed in another State punishable in this Commonwealth, and from that which makes the Pub. Sts. c. 213, § 20, applicable to such an act of embezzlement.
