Com. v. Smith

• Citation: 39 N.E. 111,162 Mass. 508
• Parties: COMMONWEALTH v. SMITH.
• Decision Date: 01 January 1895
• Court: United States State Supreme Judicial Court of Massachusetts

162 Mass. 508

39 N.E. 111

COMMONWEALTH v. SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

January 1, 1895

The defendant was indicted in four counts for embezzlement. The evidence introduced by the commonwealth tended to prove that the amount embezzled was the sum total of 21 items taken at various times on or about the date named in the first count. With other evidence, the commonwealth introduced a letter or written statement of the defendant, admitting that he had received and appropriated to his own use said various items, amounting to $131.95. Three of the said items formed the basis of the other counts. A schedule of said 21 items was exhibited to one Darius Wilson manager of the Standard Gas-Meter Company, named in the indictment, a witness for the commonwealth, and also to his wife, the bookkeeper of said corporation, a witness in the same behalf, and said schedule was verified by said witnesses, and by the books of said corporation. The second third, and fourth counts were supported only by evidence of three alleged embezzlements included in the items of said schedule. At the close of the testimony for the commonwealth the district attorney disclaimed any reliance upon the three acts of alleged embezzlement, charged in the three later counts, to support the charge contained in the first count. Defendant sought to show by his wife that after his arrest said Wilson made improper proposals to her, which evidence was excluded. After defendant's arrest, and before his indictment, he wrote the following letter to said Wilson which letter was introduced by the commonwealth after defendant had testified, viz.: "I have nothing against you, but I shall do just as you would do to gain my liberty. I shall leave no stone unturned to get out of this place. It is in your power to get me out on bail. There is no fear of my running away, as when my case is called I won't be full of whisky, as I was last Friday. If I don't see you here soon, look for trouble, more than you have the least idea of. I won't state here what I will do, for I don't care to show my hand. I know you well enough to know you won't take a bluff, and I ain't bluffing. If I don't see you before next visiting day, which is next Thursday, see Friday's papers. If you have any respect for Dr. Snoshe, you won't force me to bring her into this case. If you don't get hot, and keep cool, things have not gone so far but what they can be easily adjusted."

COUNSEL

Fred'k

E. Hurd, First Asst. Dist. Atty., for the Commonwealth.

J.E. Bates, for defendant.

OPINION

LATHROP J.

1. No exception lies to the refusal of the court, at the close of the testimony for the government, to compel the district attorney to elect upon which count or counts he would proceed. This was a matter within the discretion of the presiding judge. Com. v. Slate, 11 Gray, 60; Com. v. Bennett, 118 Mass. 443; Com. v. Pratt, 137 Mass. 98. Nor does any exception lie to the refusal of the court, at this stage of the case, to quash the first count of the indictment, because it then appeared that it was made up of several distinct items, some of which were included in the other three counts. The district attorney, at that time, disclaimed any reliance upon the three acts of embezzlement charged in the other counts to support the charge contained in the first count. Moreover, at the conclusion of the testimony, and before the arguments, the district attorney elected the specific act of embezzlement alleged upon which he relied to sustain each count. This he had a right to do. Com. v. Bennett, ubi supra. The jury were instructed as to the effect of such election,...