Com. v. Kelley

Decision Date22 October 1903
Citation184 Mass. 320,68 N.E. 346
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Rockwood Hoar and George S. Taft, for the Commonwealth.

Frank B. Hall, for defendant.



The defendant argues that the evidence was insufficient to convict him of larceny or embezzlement in any form. We are of opinion, however, that it was sufficient to warrant a finding that he had committed the offense described in Pub. St. c 203, § 46, by embezzling, while administrator of the Downey estate, the whole or a part of the $125, property of the estate, drawn from the Ware Savings Bank in July, 1897. Within the first six months of his appointment as administrator he drew out from that bank and another savings bank sums aggregating in the whole $1,280, belonging to the estate. In all he drew out $1,684. The total amount remaining in the two banks, together with all he redeposited, amounted to only $128.47, which is all the succeeding administrator received. He paid out for the estate and retained for his services, according to his own account, $994.49, and was allowed by the probate court only $678.83. Before he withdrew the $125 on July 1, 1897, he already had drawn from the two banks $900. In order to bring his charges and expenses to the sum of $994.49, he asked to be allowed for his services as administrator $175, of which the court allowed only $75. The defendant testified in his own behalf as to what he had done with the money, and as to outstanding obligations still existing for contracts made by him while administrator, but, without reference to interest, it did not appear that he had in his hands property amounting to the balance found by the probate court against him, and the jury in view of all the circumstances, may not have believed fully his statements. They may have concluded upon the evidence that there was no need of drawing out the $125 above named for the payment of claims against the estate, and that it was subsequently fraudulently used by the defendant for his own purpose, and that such use was made of it in the town where the defendant resided, which was in Worcester county. We are of opinion that the evidence justified such a conclusion.

It is further argued by the defendant that, even if the evidence did show that he committed a crime, it was embezzlement, and not larceny; that these two offenses are different in law and that, since the count upon which he was convicted alleges larceny, it is not supported by proof of embezzlement. It appears that at the trial the defendant urged this distinction, and requested the court to rule that the evidence did not show him guilty of larceny, and to direct a verdict of acquittal. This the court refused to do. He further requested the court to rule that the statute which provides that 'whoever embezzles or fraudulently converts to his own use money * * * shall be deemed guilty of simple larceny' (Pub. St. c. 203, § 37) does not merge the two offenses, or make the embezzlement larceny. The court refused to make this ruling, 'not because it was not true as a proposition of law, but because it was not called for by the facts disclosed.' The count evidently was drawn up under Rev. Laws, c. 218, § 38, and complies with the form set forth at the end of that chapter under the title 'Larceny'; and the question is whether it covers the crime of embezzlement. The provisions of this chapter, so far as material to this question, first appear in St. 1899, p. 411, c. 409, which was passed in accordance with the report and recommendation of the commissioners (see Senate Doc. No. 234 of that year) appointed under chapter 85 of the Resolves of 1897 (St. 1897, p. 621), 'to investigate and report upon a plan for the simplification of criminal pleadings, and to propose a schedule of forms to be used in criminal cases.' Prior to that statute, although one guilty of embezzlement was, in the language of the statutes, 'deemed to have committed the crime of simple larceny,' or, in the later forms, deemed to be guilty of simple larceny, still it was held that that kind of larceny was of a peculiar and distinctive character, and that the indictment must contain, in addition to all the requisites of an indictment for larceny at common law, allegations setting forth the fiduciary relation or the capacity in which the defendant acted. Accordingly, it has been held that proof of embezzlement will not sustain an indictment charging merely a larceny, and that proof of larceny will not sustain a charge of embezzlement. Commonwealth v. Simpson, 9 Metc. 139; Commonwealth v. King, 9 Cush. 284; Commonwealth v. Berry, 99 Mass. 428, 96 Am. Dec. 767. Somewhat akin to these two crimes in many respects is that of obtaining money or goods by false pretenses, and an indictment for this offense differs from that of larceny or embezzlement. It was felt by the commissioners that 'the overrefined and illogical distinctions' between these three crimes 'had led to scandalous abuses of justice by acquittal,' and, 'to obviate the possibility of miscarriage of justice on this account,' they proposed 'a simple form of indictment for the three crimes, containing simply an allegation that defendant 'stole' certain goods.' See 1899 Senate Doc. No. 234, pp. 16, 17. The statute of 1899, following the recommendation of the commissioners, contains a simple form for larceny, but no separate form for embezzlement or false pretenses. In section 12, under the head of 'Meaning of Words,'...

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