118 Mass. 443

Commonwealth v. Bennett

Decided September 4, 1875

Massachusetts Supreme Judicial Court · decided 1875-09-04

The provision of the Gen. Sts. c. 161, § 42, that, in prosecutions for embezzlement, “it shall be sufficient to allege generally in the indictment an embezzlement” “of money to a certain amount, without specifying any particulars of such embezzlement,” is not in conflict with article 12 of the Declaration of Rights. An indictment under the Gen. Sts. c. 161, § 42, which charges a defendant with the embezzlement at a time and place stated of “ certain money to the amount and value of twenty-five thousand dollars,” sufficiently describes the property embezzled. An indictment for embezzlement, which charges that the defendant did receive and take “ certain money of A.,” sufficiently alleges that the money was the property of A. On the trial of an indictment on the Gen. Sts. e. 161, § 42, charging the defendant, as “ clerk, servant or agent,” with embezzling the money of his employer on September 1, the government, for the purpose of proving the embezzlement, put in evidence the books of the employer containing entries by the defendant from October 1 of the same year to February 6 of the next year, and offered in evidence a transaction under dates of October 1, 2, 3, showing errors in addition, and that the apparent receipts were less than the actual receipts, and also evidence of other similar transactions, with similar errors, during October, and false charges on February 2 and 6 following. The government contended that these separate trans actions after October 3, could be put in evidence and the defendant convicted of embezzling the whole amount. The defendant objected to the admission of any transaction after October 3. The judge ruled that under the indictment, the defendant could he convicted of only one act of embezzlement, but that evidence of his other acts was competent on the question of intent. The government then pul in evidence of admissions by the defendant, in regard to the false entries of February 2 and 6, to the effect that he took $75 on February 2 and $300 on February S, but there was no evidence that he took money on any of the previous dates, except what appeared upon the books as introduced. The judge ruled, as requested by the defendant, that the evidence presented by the books would not in itself amount to an embezzlement or alone warrant a conviction. The government was then allowed to elect and rely upon the transaction of February 6 as the principal embezzlement, and that of February 2 as evidence of the intent with which that act was done. Held, it not appearing that the government had made any previous election, that it was within the discretion of the presiding judge to allow the government to make this election, that his ruling thereon was not subject to exception, and that his previous rulings were correct. On the trial of an indictment on the Gen. Sts. c. 161, § 42, charging the defendant, as “ clerk, servant or agent,” with embezzling money from a partnership, one of the firm testified that the defendant had been in the employment of the firm for many years, that about five years prior to the embezzlement an agreement was made with the defendant and a third person by which the defendant was after-wards to receive for his services a certain salary per year and also five per cent, of the profits computed semi sanually and that he had so continued until after the embezzlement, receiving the salary and profits when there were any; that for the past one or two years there had been no profits; that the defendant had, since the agreement, received certain profits; that there was an agreement that the defendant should not share losses; that the witness and his partner had, since the agreement, spoken to each other of having the name of the defendant printed with theirs on the cards and bill-heads of the firm, intended to do so, but were prevented by the fact that they had a supply of the old ones on hand, and that the defendant was only a bookkeeper. Held, that the defendant was not a partner, and that a ruling by the presiding judge that he could not be convicted, if he supposed when ha took the money that he was a partner, was sufiiciently favorable to him, and afforded no ground of exception. On the trial of an indictment on the Gen. Sts. c. 161, § 42, charging the defendant, as “clerk, servant or agent,” with embezzling money from his employer, and fraudulently converting it to his own use, there was evidence that the defendant was a bookkeeper, and that he admitted taking money on a certain day; that then was a money-drawer in the office in which all moneys paid in should go. It die not appear that he had any authority, or that it was any part of his duty to receive any money, and there was no evidence to show whether the money taken was taker from the drawer or otherwise. The judge instructed the jury that if the rncmej was in the possession of the defendant by virtue of his employment, and he took il under these circumstances, and fraudulently converted it to his own use, he woulc be liable to conviction under the indictment; but that if the money, before thi taking, had passed into the possession of the firm, and was placed in the money drawer, and was not thus under his control, o.r in his possession, the defendani could not be convicted under the indictment. Held, that there was evidence t< warrant a verdict of guilty, and that the defendant had no ground of exception ti the instruction given.

Relies on Commonwealth v. Coe · Haskins v. Warren

Good law ✅— No negative treatment on recordhow we know

Decided 1875-09-04

How this case has been cited

Cited by 31 later decisions (1 by the Supreme Court) — most recently November 1979 · most notably Moore v. United States (1895), Commonwealth v. Baker (1975)

1 district · 29 state decisions — followed in 12 states

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Endicott, J.

¶11. This indictment is under the Gen. Sts. c. 161, § 42. That section provides that in prosecutions for embezzling bullion, money, notes, bank notes, checks, drafts, bills of exchange, obligations or other securities for money, it shall be suffi*452cient to allege generally in the indictment an embezzlement of fraudulent conversion “ of money to a certain amount, without specifying any particulars of such embezzlement.” The allegation here is of an embezzlement of “ certain money to the amount and value of twenty-five thousand dollars.” This is in conformity to the statute, and in accordance with the practice which has prevailed under this and previous statutes. Rev. Sts. a. 133, § 10. St. 1834, c. 186, § 2. Nor is it open to the objection, that the offence is not set forth “ fully and plainly, substantially and formally,” as required by the Declaration of Rights, art. 12. The defendant, if he had desired, could have applied for a specification of the particular acts relied on by the government; as may be done in other cases where the offence is of a general nature, and the charge is in general terms. Such an application might have been made at the trial, and granted by the court if in its discretion the circumstances of the case required it. Commonwealth v. Wood, 4 Gray, 11, 13.

¶22. The allegation that the defendant did receive and take certain money “of the said Prescott & Wood,” is a sufficient allegation that it was the money and property of Prescott & Wood. In Eastman v. Commonwealth, 4 Gray, 416, the indictment charged the defendant with stealing a bank bill “of the goods and chattels of one Daniel Carter; ” and it was held that, while a bank bill might not be properly termed goods and chattels, yet those words might be rejected as surplusage, and the indictment stand as properly charging a larceny of the property of Carter.

¶33. To prove the embezzlement, the books of Prescott & Wood were produced containing entries by the defendant from October 1, 1874, to February 6,1875. The government offered in evidence a transaction under dates of October 1, 2, 3, showing errors of addition, and that the apparent receipts were less than the act-gal receipts. Other similar transactions with similar errors during October, and false charges on February 2 and 6 following, were also offered.

¶4The government contended that these separate transactions after October 3 could be put in evidence, and the defendant convicted of embezzling the whole amount. The defendant objected to the admission of any transaction after October 3. *453The court ruled that under the indictment the defendant could be convicted of only one act of embezzlement, but evidence of his other acts was competent on the question of intent. This ruling, that the other acts were competent for that purpose, was correct. Gen. Sts. c. 161, § 42. Commonwealth v. Tuckerman, 10 Gray, 173. Commonwealth v. Shepard, 1 Allen, 575. Commonwealth v. Edgerly, 10 Allen, 184. Commonwealth v. Coe, 115 Mass. 481.

¶5Evidence was then introduced of admissions by the defendant in regard to the false entries of February 2 and 6, to the effect that he did take $75 on February 2, and $300 on February 6; but there was no evidence that he took money on any of the previous dates, except what appeared upon the books as introduced. And the presiding judge ruled, as requested by the defendant, that the evidence presented by the books would not in itself amount to an embezzlement, or alone warrant a conviction.

¶6The government was then allowed to elect and rely upon the transaction of February 6, when the defendant admitted that he took $300, as the principal embezzlement, and the transaction of February 2 as evidence of the intent with which he took the $300. We see no objection to this course. It does not appear that the government had previously made any election to treat the transaction of October 1, 2, 3, as the principal embezzlement, and the questions argued by the defendant on that point are not raised in this case. The election to proceed on the transaction of February 6 was the only election made, and that after the evidence was all in. It was clearly within the discretion of the presiding judge. Commonwealth v. Slate, 11 Gray, 60. Commonwealth v. Edds, 14 Gray, 406. Nor does it appear that the government contended or that the court ruled, when the case was submitted to the jury, that any other transaction except that of February 2, of which there was proof of actual embezzlement, was competent on ;he question of the intent with which the defendant took the. money on February 6.

¶74. The defendant was not a partner. He had only a contingent interest in the profits, and no interest in the property or capital of Prescott & Wood. Haskins v. Warren, 115 Mass. 514, 539. The ruling that he could not be convicted, if he supposed, when he took the money, that he was a partner, was sufficiently favorable to him.

¶8 *4545. There is no just ground of exception to the ruling that if the jury found that the money came into the defendant’s hands-by virtue of his employment, and he fraudulently converted it to his own use, he could be convicted under the indictment. There was evidence that it came into his possession ,• whether it was in his possession by virtue of his employment, was for the jury to determine. Upon all these questions, there was evidence which warranted the submission of the case to the jury.

¶9 Exceptions overruled.