Com. v. Parker

• Citation: 165 Mass. 526,43 N.E. 499
• Parties: COMMONWEALTH v. PARKER.
• Decision Date: 02 April 1896
• Court: United States State Supreme Judicial Court of Massachusetts

165 Mass. 526

43 N.E. 499

COMMONWEALTH v. PARKER.

Supreme Judicial Court of Massachusetts, Hampden.

April 2, 1896

COUNSEL

C.L. Gardner, Dist. Atty., for the Commonwealth

J.B Carroll and W.H. McClintock, for defendant.

OPINION

LATHROP J.

The motion to quash was rightly overruled. If the indictment had contained the word "and" between the different allegations naming the property embezzled, it would have been perfect in form. We think the omission of this word is not fatal to it. It was evidently the intention of the pleader to charge the embezzlement of 50 pieces of paper, and also of 50 railroad tickets, so that his proof might be applied to either description that was deemed proper. It has repeatedly been held that an indictment charging larceny of a certain number of pieces of paper, each of a certain stated value, is good. Reg. v. Perry, 1 Car. & K. 725; Rex v Mead, 4 Car. & P. 535; Rex v. Bingley, 5 Car. & P. 602; Rex v. Vyse, 1 Moody, Crown Cas. 218; Reg. v. Watts, 4 Cox, Cr.Cas. 336. "No greater particularity in the description of the property is required in an indictment for embezzlement than in one for larceny. Com. v. Concannon, 5 Allen, 502; Com. v. Butterick, 100 Mass 1." Per Colburn, J., in Com. v. Pratt, 137 Mass. 98, 106. The term "railroad tickets" is a sufficient description of property, without a more particular statement of what the tickets are. There is no such difference between pieces of paper and railroad tickets in reference to the statutes punishing embezzlement as to make it improper to charge an embezzlement of both kinds of property in the same count.

An ordinary railroad ticket, in such form as to show that an innocent holder of it is entitled to ride over a railroad, ought to be considered either a certificate of the payment of fare, and of the acquisition of a right to ride, or a valuable contract in force, being the informal printed statement given bye the railroad corporation as its agreement to carry the bearer over its railroad. The fourth request for an instruction was therefore rightly refused.

The defendant made several requests for instructions based upon the theory that there was some evidence which would have warranted the jury in finding that the defendant appropriated the ticket outside of this commonwealth. There was evidence that the ticket on which the government relied was sold on August 9, 1894, to one Holmes, a detective, in New York, and entitled the purchaser to a ride from New York to Springfield. Holmes testified that this ticket was taken by the defendant soon after leaving New York. It was the duty of the defendant, on his arrival in Springfield, to return this ticket to the office of the railroad company on the day he received it. The defendant was arrested on August 17th, and up to this time the ticket had not been returned. There was also evidence that the defendant was in the habit, from some time prior to August 9th down to the time of his arrest, of trading tickets for produce at a shop in Springfield, kept by one Mesick, and that this ticket was procured from Mesick on the morning of the defendant's arrest. We find no statement in the bill of exceptions whether the ticket had been punched by the defendant or not; but the trial proceeded upon the ground that the ticket in question had not been punched, and we assume this to be the fact. On this state of facts, we are of opinion that the defendant was not entitled to the instructions requested. Our statutory provisions relating to embezzlement provide that one who embezzles "shall be deemed guilty of simple larceny," or "deemed guilty of larceny." Pub.St. c. 203, §§ 37 39, 41, 43. The crime, therefore, which a person commits who violates the provisions of these sections, is that of larceny. Com. v. Pratt, 132 Mass. 246. In Com. v. Holder, 9 Gray, 7, it was stated by Chief Justice Shaw to be the settled law of this commonwealth that a person who committed larceny in another state, and brought the stolen property here, could be punished for larceny here. See, also, Com. v. Cullins, 1 Mass. 116; Com. v. Andrews, 2 Mass. 14; Com. v. Rand, 7 Metc. (Mass.) 475, 477; Com. v. Uprichard, 3 Gray, 434. In the case last cited, while the doctrine above stated was admitted, it was held not to apply to the case of goods stolen in one of the British provinces, and brought here. The offense of embezzlement has been often stated to be larceny committed by a certain class of persons, without a trespass, or, in other words, a statutory larceny. See Com. v. Macloon, 101 Mass. 1, 6; Com. v. White. 123 Mass. 430, 433. It may be suggested that the doctrine above stated in regard to larceny at common law rests upon a legal fiction, namely, that, by taking the stolen property into another state, the thief commits a new taking, and that in embezzlement there is no wrongful taking. But we do not see why it may not equally well be said that, so long as a person who embezzles property continues in possession of it, he newly converts...