Com. v. Dewhirst
| Decision Date | 26 February 1906 |
| Citation | 76 N.E. 1052,190 Mass. 293 |
| Parties | COMMONWEALTH v. DEWHIRST. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. Scott Peters, for the Commonwealth.
Sweeney Dow & Cox, for defendant.
1. The motion to quash was rightly overruled. The objection specifically assigned is that 'in none of said counts is it alleged that the defendant was charged with any duty in reference to the books of the corporation named in said indictment, or had access or right of access to said books.' This case comes within the general principle that it is enough if the crime be charged in the language of the act creating it. Commonwealth v. Ashton, 125 Mass 384; Commonwealth v. Prescott, 151 Mass. 60, 23 N.E 729; Commonwealth v. Dill, 160 Mass. 536, 36 N.E. 472; Commonwealth v. Hodgkins, 170 Mass. 197, 49 N.E. 97; Commonwealth v. Danziger, 176 Mass. 290, 57 N.E. 461. In ascertaining the crime created by Rev. Laws, c. 208, § 58, the section in question, section 59 is not to be read into it, as the defendant has contended.
2. The exception to the admission of what was said by others in the defendant's hearing was not well taken. It was admitted on the ground that the defendant by remaining silent admitted that what was stated was true, as to which see Commonwealth v. McCabe, 163 Mass. 98, 39 N.E. 777; Commonwealth v. Funai, 146 Mass. 570, 16 N.E 458; Commonwealth v. Brailey, 134 Mass. 527; Commonwealth v. Brown, 121 Mass. 69. The principle is admitted by the defendant, but what he complains of here is its application. The facts were as follows: Since its organization in 1884, the defendant was and had been the corporation clerk and general manager of a co-operative association organized under Rev. Laws, c. 110. Since its organization the association had declared quarterly dividends until October, 1903. At a meeting of the directors on October 26, 1903, it appeared that, while the report of the defendant as general manager for the preceding quarter showed an apparent profit that would justify the payment of a dividend, there was not sufficient cash to pay it. An examination of the books of the corporation by experts showed a shortage of cash. The examination also disclosed entries in the handwriting of the defendant, some in pencil and some in ink, some on the stubs of the check books issued by the two banks aforesaid, and some on the journal of the corporation, purporting to show deposits, at certain periods, of moneys in said banks, which had not been actually made therein, and also of balances in said banks at certain periods which was incorrect, and these entries were the subject of the indictment. There was also evidence tending to show that these entries were made to force cash balances at the time of the quarterly dividends. After the commonwealth had introduced in evidence, without objection, certain statements made by the defendant at the directors' meeting of October 26th, to the effect that the shortage was caused by paying dividends that had not been earned, and that the dividends had been declared to save the 'honor' of the association, a witness was allowed to testify, against the objection of the defendant, that later the president of the association said in the defendant's hearing that the defendant had 'made...
To continue reading
Request your trial