Commonwealth v. Este

Holmes, J. The evidence of the defendant’s embezzlement may be summed up in a few words as follows. While treasurer of the town of Southborough, he made two notes in authorized form, and applied a large portion of their proceeds to payment of interest due from the town to the State. In his accounts with the town, he credited himself with the payments so made, but did not charge himself with the notes, or with any part of their proceeds. ' The exceptions do not disclose whether there was evidence how his balance stood at the time of the earlier of these transactions; but, at the time of the later, his accounts showed that he was chargeable with $1680.35, which sum was diminished by $1515 on the books by the credit mentioned. This error was carried through the books until he went out of office, and he then settled his accounts by his books. He “ had paid the two notes” out of his private funds after he ceased to be treasurer; and there was other evidence of a fraudulent intent which we shall mention hereafter. But there was nothing to show that he made the notes, or received their proceeds, with intent to use them otherwise than he used them in fact; and it will be noticed that, whatever the probabilities, it is possible that he used the whole proceeds in paying proper town charges, as he certainly did the greater part. We deem it clear that whatever part was so used and intended to be used was not embezzled, even if the use was contrived as part of a scheme to defraud the town. The fact that the payment was a means of embezzling other money in the future, or covered up an embezzlement of other money in the past, would not make it an embezzlement of the money paid. Neither would the fact that he represented it to the town (not to the payees) as a payment of other town money; that is, as a payment from his balance on hand, and not from the notes. Embezzlement retains so much of the character of larceny that it is essential to the commission of the crime that the owner should be deprived of the property embezzled by an adverse holding pr use. No doubt, questions may arise as to what is a sufficient deprivation or adverse holding, as in Commonwealth v. Mason, 105 Mass. 163, and cases cited. See also Rex v. Hall, Russ. & Ry. 463, 464; S. C. [285] from MS. Bayley J., 2 Russ. Crimes, (5th ed.) 383; Regina v. Richards, 1 C. & K. 532; S. C. from C. J. Tin dal’s note, 2 Russ. Crimes, (5th ed.) 206. But the principle remains, and, when property is held at every moment as and for the master’s property, fraud as to the source from which it comes, or fraudulent intent as to something else, is not a sufficient substitute for the missing element. To this extent we entirely agree with the English cases of Regina v. Poole, Dearsly & Bell, 345; Regina v. Holloway, 2 C. & K. 942, & 1 Denison, 370 ; and Rex v. Webb, 1 Moody, 431. We think, therefore, that the fourth ruling requested should have been given. Justice to the defendant also required that a similar instruction should have been given as to the other transaction not embraced in that request. The court seems to have had chiefly in view another aspect of the case. As has been stated, when the defendant credited himself with the payment of $1515, his accounts showed him to be chargeable with $1680.35. His actual bank balance does not appear, nor whether he did have that amount on hand in fact. The fraud, if there was one, may have been intended to cover up an old deficiency. But, treating his account as an admission, the jury might have found that he did then have that amount on hand; and, as his account was never corrected, and his actual hank balance, at the time of final settlement, within six months, was less even than that required by his account, they might have found that, at the date of the entry, or within six months thereafter, he withdrew and embezzled $1515 from the bank account. It seems to have been, partly at least, with reference to this view that the jury were instructed, that, if the defendant failed to charge himself with the $1800 received from the Marlborough Bank, on his treasurer’s account, and by so doing made himself better off, and actually defrauded the town out of that amount, the jury might convict, provided he did this with a fraudulent intent to convert; that the same would be true with regard to the two thousand dollar transaction with the treasurer of the Commonwealth. But this language was misleading, even if it did not embody an error of law in the sense in which it was spoken. The failure to charge himself, apart from the credits for payments which are not mentioned by the court, could only have been a step toward embezzling the proceeds of the notes, a [286] part of which at least the defendant is shown not to have embezzled; yet the idea is conveyed that an embezzlement to the amount of the notes, and, it would seem, of their proceeds, might be found on this ground. We do not think that the later portion of the charge clearly removed this possible error. On the other hand, the credits for payments, if we are to take the language quoted as tacitly referring to them, while they may have laid a foundation for an embezzlement of funds on hand, if the defendant had them, could have done so only to the extent of such charges, which were less than $1800 and $2000 respectively. Further, it is at least as likely that the way in which the defendant in fact made himself better off, by crediting and by failing to charge himself, whatever his intent, was by concealing an old deficiency, which of course would not be embezzlement, although the instruction would make a contrary impression on the jury’s mind. We assume, for the purposes of this decision, that the jury might have found that the defendant embezzled the whole amount laid in the indictment; but, if so, the two parts of each sum must have been got at in different ways; one part, corresponding to the credit, embezzled from the bank account, the other part being the rest of the proceeds of the note not shown to have been paid for the town. We also assume that an embezzlement of any sum from either source, notes or balance on hand, would have warranted a general verdict of guilty. Pub. Sts. c. 203, § 44. Commonwealth v. O'Connell, 12 Allen, 451. But this very uncertainty of the grounds on which the verdict might go, made it imperative that the jury should be correctly instructed with reference to each alternative. For the reasons given, the exceptions must be sustained. The first instruction requested was properly refused. The evidence of embezzlement was not confined to that presented by the books, and the court could not be required to select that portion and pass upon what its effect would be in the absence of the rest. Evidence was admitted of a similar embezzlement ten years before, and only connected with the offence charged by payments of interest out of the defendant’s private funds for the purpose of concealment. As these payments might have been made from comparatively innocent motives, the question is raised [287] whether the evidence is taken out of the ordinary rule, which excludes the proof of other similar but distinct offences. See Commonwealth v. Tuckerman, 10 Gray, 173; Commonwealth v. Choate, 105 Mass. 451, 458 ; Commonwealth v. Jackson, 132 Mass. 16, 18 ; Commonwealth v. Bradford, 126 Mass. 42, 45; Commonwealth v. Shepard, 1 Allen, 575, 581. But it is not necessary to decide this question in order to dispose of the case. Exceptions sustained.