Com. v. Sawtelle

• Decision Date: 23 February 1886
• Parties: COMMONWEALTH v. SAWTELLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 140

5 N.E. 312

COMMONWEALTH v. SAWTELLE.

Supreme Judicial Court of Massachusetts.

February 23, 1886

COUNSEL

W.N. Davenport and S.J. Elder, for defendant.

E.J Sherman, Atty. Gen., for the Commonwealth.

OPINION

DEVENS J.

The defendant testified that all the money which Mrs. Sawin paid him he put into the money drawer, or handed to the book and cash keeper, rolled up as he received it. The entry made by defendant in his own handwriting credited Mrs. Sawin with $50 only as paid by her on the day on which one of the acts of embezzlement was alleged to have been committed; the payment made by her, according to her testimony, having been $61. The defendant objected to the inquiry of the cash-keeper whether his cash overran that day. It obviously would have done so if the defendant had actually deposited the sum testified by Sawin to have been received by him. If this question involved a single transaction,--as if the money in the cash-drawer had been counted immediately previous to the deposit by defendant, and then immediately afterwards,--the amount of the sum deposited would be clearly shown. It would not seriously be contended that such evidence was not admissible when the amount was undisputed. The fact that the question involves the business of an entire day, and thus that, by reason of the number of transactions that had taken place there was an opportunity for mistake as to the amount received, counted, or deposited, in connection with such other transactions, so that it was possible that the discrepancy between the amount which should have been found in the drawer if Sawin's evidence were true, and the amount actually found, might be attributable to error in such other transactions, constitutes an argument to the weight and not an objection to the competency, of the evidence. Evidence is not to be rejected because it fails to be conclusive. It is sufficient if it fairly tends to prove a point sought to be established.

The defendant further contends that if the fact that the cash balanced, upon the basis that $50 only was paid in by him was competent, it could only have been proved by the books. This objection does not appear to have been taken at the trial, and can hardly be considered open. But it was not a question of what the books contained, but whether the amount on hand in the morning, adding thereto the amounts received during the day, equaled the amounts paid out...