Com. v. Ryan

• Decision Date: 24 February 1892
• Parties: COMMONWEALTH v. RYAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 523

30 N.E. 364

COMMONWEALTH v. RYAN.

Supreme Judicial Court of Massachusetts, Suffolk.

February 24, 1892

COUNSEL

A.E. Pillsbury and Chas. N. Harris, for the Commonwealth. Melvin O. Adams, for defendant.

OPINION

HOLMES J.

This is a complaint for embezzlement of money. The case for the government is as follows: The defendant was employed by one Sullivan to sell liquor for him in his store. Sullivan sent two detectives to the store, with marked money of Sullivan's, to make a feigned purchase from the defendant. One detective did so. The defendant dropped the money into the money-drawer of a cash-register, which happened to be open in connection with another sale made and registered by the defendant, but he did not register this sale, as was customary, and afterwards--it would seem within a minute or two--he took the money from the drawer. The question presented is whether it appears as matter of law that the defendant was not guilty of embezzlement, but was guilty of larceny, if of anything. The defendant asked rulings to that effect on two grounds: First, that, after the money was put into the drawer it was in Sullivan's possession, and therefore the removal of it was a trespass and larceny second, that Sullivan's ownership of the money, in some way not fully explained, prevented the offense from being embezzlement. We will consider these positions successively.

We must take it as settled that it is not larceny for a servant to convert property delivered to him by a third person for his master, provided he does so before the goods have reached their destination, or something more has happened to reduce him to a mere custodian, (Com. v. King, 9 Cush. 284;) while, on the other hand, if the property is delivered to the servant by his master, the conversion is larceny, ( Com. v. Berry, 99 Mass. 428; Com. v. Davis, 104 Mass. 548.)

This distinction is not very satisfactory, but it is due to historical accidents in the development of the criminal law coupled, perhaps, with an unwillingness on the part of the judges to enlarge the limits of a capital offense. Bazeley's Case, 2 Leach, 843, 848, note; Id. 35, note; 2 East, P.C. 568, 571. There was no felony when a man received possession of goods from the owner without violence. Glanv. X., c. 13; Y.B. 13 Edw. IV. 9, pl 5; 3 Co. Inst. 107. The early judges did not always distinguish clearly in their language between the delivery of possession to a bailee and the giving of custody to a servant, which, indeed later judges sometimes have failed to do. Littleton in Y.B. 2 Edw. IV. 15, pl. 7; 13 Edw. IV. 10, pl. 5; 3 Hen. VII. 12, pl. 9; Ward v. Macauley, 4 Term R. 489, 490. When the peculiar law of master and servant was applied either to the master's responsibility or to his possession, the test seems to have been empirical rather than based on the notion of status and identity of person. See Byington v. Simpson, 134 Mass. 169, 170. Within his house a master might be answerable for the torts of his servant, and might have possession through his servant's hands. Outside there was more doubt; as, when a master intrusted his horse to his servant to go to market. Y.B. 21 Hen. VII. 14, pl. 21; T. 24 Edw. III., Bristol, in Molloy, De Jure Mar. bk. II., c. 3, § 16; Y.B. 2 Hen. IV. 18, pl. 6; Staundforde, I., c. 15, fol. 25; c. 18, fol. 26; 1 Hale, P.C. 505, note. See 13 Rep. 67, 69; and, further, 42 Ass. pl. 17, fol. 260; 43 Edw. III. 11, pl. 13; Ass. Jerus, (Ed.1690,) cc. 205, 217. The law was settled in the case of goods delivered to a servant by his master by St. 21 Hen. VIII. c. 7, in a way which has been thought to be only declaratory of the common law in later times, since the distinction between the possession of a bailee and the custody of a servant has been developed more fully. 2 East, P.C. 564, 565; Wilkin's Case, 1 Leach, 520, 523. See Kelyng, 35; Fitzh. Nat. Brev. 91e; Blosse's Case, Moore, 248, Owen, 52, Gouldsb. 72. But probably when the act was passed it confirmed the above-mentioned doubt as to the master's possession where the servant was intrusted with property at a distance from his master's house in cases outside the statute. In Dyer, 5a, 5b, it was said that it was not within the statute if an apprentice ran off with the money received for his master's goods at a fair, because he had it not by the delivery of his master. This, very likely, was correct, but the case was taken before long as authority for the broader proposition that the act is not a felony, and the reason was invented to account for it that the servant has possession, because the money is delivered to him. 1 Hale, P.C. 667, 668. This, it will be seen, was a perverted rendering of the old and soon exploded notion that a servant away from his master's house always has possession. The old case of the servant converting a horse with which his master had intrusted him to go to market was stated and explained in the same way. Crompton, Just. 35b, pl. 7 See Bass' Case, 1 Leach, 251. Yet the emptiness of the explanation was shown by the fact that it still was held felony when the master delivered property for service in his own house. Kelyng, 35. The last step was for the principle thus qualified and explained to be applied to a delivery by a third person to a servant in his master's shop, although it is possible at least that the case would have been decided differently in the time of the year books, (Y.B. 2 Edw. IV. 15, pl. 7; Fitzh. Nat. Brev. 91e;) and although it is questionable whether on sound theory the possession is not as much in the master as if he had delivered the property himself, (Rex v. Dingley, 1687, stated in Bazeley's Case, 2 Leach, 835, 840, and in King v. Meares, 1 Show. 50, 53; Waite's Case, 1743, 2 East, P.C. 570, 1 Leach, 28, 35, note; Bull's Case, stated in Bazeley's Case, 2 Leach, 841 2 East, P.C....