Com. v. Corcoran

• Decision Date: 03 February 1965
• Citation: 204 N.E.2d 289,348 Mass. 437
• Parties: COMMONWEALTH v. James C. CORCORAN, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 289

204 N.E.2d 289

348 Mass. 437

COMMONWEALTH v. James C. CORCORAN, Jr.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Dec. 7, 1964.

Decided Feb. 3, 1965.

Daniel M. Keyes, Jr., and William K. Danaher, Jr., Springfield, for the defendant, submitted a brief.

Matthew J. Ryan, Jr., Dist. Atty., for the Commonwealth.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and REARDON, JJ.

WHITTEMORE, Justice.

The defendant, in May, 1963, was indicted for larceny under G.L. c. 266, § 30, ¹ in the form made sufficient by G.L. c. 277, § 79. The recital was that on June 30, 1962, he 'did steal certain money * * * of the value of over One Hundred Dollars, the property of * * * [five named persons]' who, as it later appeared, were the heirs of Albert Rheault. A bill of particulars subsequently specified: '1. [Nature and character of the crime.] Larceny as set forth under Chapter 266, Sec. 30 and more particularly embezzlement. 2. [Manner and means.] Larceny as defined in Chapter 266, Sec. 30 * * * while acting as Attorney for the heirs of the estate of Albert Rheault. 3. [Subject matter.] Property as set forth in para. 2 of Chapter 266, Sec. 30, and more specifically, money and/or monies. 4. [Time]. On or about July 2, 1962 * * *.' Upon the filing of the bill of particulars, on motion of the Commonwealth, the indictment was amended to substitute the date July 2, 1962.

1. There was no error in the denial of the motion for a directed verdict. The jury could have found the facts next stated.

In March, 1962, at the defendant's office, Donald Rheault, acting for the other heirs, received a check for $11,900, payable to him, from the purchaser, under an oral agreement, of real estate of the deceased, Albert Rheault. This was the balance of the agreed price of $12,000. No deed was then delivered. The purchaser knew of a large outstanding mortgage and the defendant told her he would act for her also and get her a deed after discharging the mortgage. The defendant told Donald that if he would indorse the check to the defendant, he would deposit it the next day, saving Donald a trip to the bank, and would use the check to discharge the mortgage and would deposit the balance to the credit of the estate. The defendant did not do these things. He used the check to purchase a large bank check, and five small bank checks, totaling $11,121. He received the balance in cash. Later he used the large bank check to purchase another, somewhat smaller bank check, taking the balance in cash. Several times thereafter he effected transactions similar to the first two. On July 2, 1962, he purchased one check of $4,374.40. Counsel stipulated that the small checks, successively obtained, were used by the defendant for his personal ends and in no way to benefit the estate. ² Eventually, the defendant told Donald that he had spent the money and he signed a writing absolving Donald from the 'mishandling' of the funds. He told a police lieutenant that he spent this money in payment of his own obligations. The defendant did not testify or present evidence.

The jury could have found that the defendant obtained title to the check by the false pretense that he intended to do what he said he would do. Alternatively, the subsequent embezzlement of the funds, held in trust for the estate, was of course indisputable if the uncontroverted evidence was believed.

There is nothing in the contention that the money belonged to the purchaser of the real estate. The defendant contends that, as there was no writing, the purchaser could have avoided the oral agreement and recovered the money. Even if this had been so, which we need not decide, the title to the check had passed to Donald to hold for the heirs, and by Donald's indorsement, to the defendant.

General Laws c. 278, § 9, provides: 'In the prosecution of crimes which relate to or affect real or personal estate, it shall be sufficient, and shall not be a variance, if it is proved on the trial that, at the time when the crime was committed, either the actual or constructive possession or the general or special property in the whole or any part of such real or personal estate was in the person or community alleged to be the owner thereof.'

2. There was no error in the charge given in accordance with the law stated in

point 1 above, nor in denying the requests of the defendant to the contrary effect.

3. The defendant objected to the judge's charge that the Commonwealth could prove its case by showing any type of larceny and could find the defendant guilty of larceny by false pretence or by embezzlement. The assignments of error contend that the specification of embezzlement limited the Commonwealth to proof of that wrong.

General Laws c. 277, § 41, provides: 'In an indictment for criminal dealing with personal property with intent to steal, an allegation that the defendant stole said property shall be sufficient; and such indictment may be supported by proof that the defendant committed larceny of the property, or embezzled it, or obtained it by false pretences.'

In Commonwealth v. King, 202 Mass. 379, 387-389, 88 N.E. 454, 458, this court said: 'The effect of this statute * * * is to put it beyond a doubt that the former crimes of larceny, embezzlement, and the obtaining of property by false pretences, are now merged into the one crime of larceny * * *. [T]he crime of larceny * * * may be proved by evidence which would have warranted a conviction upon any one of the three charges that formerly would have been needed. * * * This legislation was intended to do away with the possibility of a criminal indicted for one of the three crimes mentioned escaping punishment by reason of its being afterwards found that his crime was technically one of the other two * * *. [See Commonwealth v. O'Malley, 97 Mass. 584, wherein the defendant] was * * * enabled wholly to escape punishment. It was the object * * * to prevent * * * similar scandals * * * by doing away with the merely technical difference between three cognate and similar offenses. * * * [Hence the jury may] consider whether * * * [the] facts show a taking * * * by trespass from the possession of * * * [the] owner, a fraudulent...