Commonwealth v. Este

• Decision Date: 21 October 1885
• Citation: 140 Mass. 279,2 N.E. 769
• Parties: Commonwealth v. Franklin Este
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 279

2 N.E. 769

Commonwealth v. Franklin Este

Supreme Judicial Court of Massachusetts

October 21, 1885

Argued September 29, 1885 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Worcester.

Indictment in three counts. The first count charged the defendant, on September 26, 1882, being then the treasurer of the town of Southborough, with the embezzlement of $ 2000, the property of said town. The second count charged a similar embezzlement, on the day mentioned in the first count, of $ 485. The third count charged a similar embezzlement, on September 23, 1881, of $ 1800. Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions, in substance as follows:

The government offered evidence tending to show that, by the records of the town, it appeared that the defendant as treasurer was authorized to borrow money for the town, with the approval of the selectmen, in 1881 and 1882; and that he drew a note as treasurer of the town for $ 1800, payable, on demand, to the Marlborough Savings Bank, which note was dated September 23, 1881, and was approved by the selectmen.

It further appeared that he gave this note to the Marlborough Savings Bank, and received therefor $ 1800, in two checks payable to the order of the treasurer of the Marlborough Bank, and indorsed in blank by him, and that the defendant deposited these checks in the Westborough National Bank in his account as treasurer of Southborough, as appeared upon his account at that bank as treasurer of the town of Southborough.

It further appeared, that the defendant kept a book of his accounts as treasurer, in detail, in his own writing, charging himself with money received and crediting himself with expenditures, and making up balances every year, carrying forward the balance as cash on hand; that the receipt of this $ 1800 was not entered in his cash received, or elsewhere in his books, except in his account with the bank as treasurer of the town. It appeared by the book of the cashier of the Westborough National Bank, that the defendant, as treasurer of said town, drew out $ 1500 upon his check, payable to the order of the treasurer of the Commonwealth, on the third day after the $ 1800 was received, and that at the time the $ 1800 was received, as appeared on his treasurer's account with the bank, there was but $ 195 on said account in the bank, and no other money was received by the bank from him prior to the time when the $ 1500 was drawn out, except the said $ 1800.

It further appeared, that upon the defendant's account-book, as treasurer of the town, there was an entry of $ 1500 paid to the treasurer of the Commonwealth, as interest due from the town on a $ 25,000 note held by the Commonwealth against said town, and that this entry was of the same date as appeared upon the books of the treasurer of the Commonwealth, when $ 1500 was received from the defendant as treasurer of Southborough.

The government also offered evidence tending to show that, on September 26, 1882, the defendant, as treasurer of the town of Southborough, drew a note for $ 2000, on demand, approved by the selectmen as the other note was, and presented it to the treasurer of the Commonwealth, who lent him $ 2000 thereon as follows: giving him a check for $ 485 payable to the order of the defendant, as treasurer of the town, and applying $ 1515 on said note for $ 25,000 held by the Commonwealth against the town of Southborough, that being the amount due as interest at that time. This check for $ 485 was deposited by the defendant, in his account as treasurer of the town of Southborough, in the Westborough National Bank, on September 27, 1882.

The government put in evidence the treasurer's account-book of the town of Southborough as kept by the defendant, and it nowhere appeared that the defendant, on that book or on any other account or book, had charged himself with this note of $ 2000 or the proceeds thereof, but it appeared that he had entered the $ 1515 to his credit as treasurer as paid to the treasurer of the Commonwealth at the same date as appeared by the indorsement of the same amount as interest then due on the note of $ 25,000; nor was there any entry upon the treasurer's book to show that the $ 485 was received by the defendant as treasurer. It appeared, by the defendant's account-book as treasurer, that on the day he effected this loan and made this payment of $ 1515 to the treasurer of the Commonwealth, (which was September 26, 1882,) there was a balance in his hands as treasurer of $ 1680.35 before the credit of $ 1515 paid the treasurer of the Commonwealth as interest, and that that balance was reduced $ 1515 by that entry, and was so carried through the books, and was never corrected. It appeared that, at the close of the financial year 1882, namely, on March 1, 1883, the defendant went out of office and settled his account as by his books. The balance then turned over was given on his books as $ 1412.80. His balance at that time in the bank was $ 731.44, of which $ 600 was deposited and drawn out on one check of equal amount with the deposit. It appeared in evidence that the defendant had paid the two notes -- the $ 1800 note held by the Marlborough Savings Bank and the $ 2000 note held by the treasurer of the Commonwealth -- out of his own private funds, after he ceased to be treasurer of the town.

The government offered no further evidence of misappropriation or embezzlement of these several amounts; but, for the purpose of showing the intent of the defendant in these transactions, it was permitted, against the defendant's objection, to introduce evidence tending to show that in 1870 the treasurer of the town of Southborough was authorized to borrow money for the town not exceeding $ 20,000; that the defendant in 1870 was treasurer of the town of Southborough, and made a note as treasurer of the town for $ 5000, payable on demand to the Worcester County Free Institute of Industrial Science, and received for the same $ 5000; that it nowhere appeared upon his books as treasurer of the town that he had charged himself with this money; that he had not informed the town of the existence of this note, and had since 1870 and until 1881 paid the interest on the same out of his private account. To the introduction of this evidence the defendant excepted. The government offered no evidence of other acts of embezzlement between 1870 and 1881.

The defendant requested the judge to instruct the jury as follows: "1. The mere making of false entries, or additions, or omissions, in his books by the defendant, will not amount to embezzlement, nor warrant a conviction on the indictment. Evidence presented by the books will not in itself amount to embezzlement, or alone warrant a conviction. 2. The evidence of the government under each count must be confined to six months from the time stated in such count; and the government cannot give evidence of an offence charged in the indictment outside of the time or times stated therein. 3. The jury cannot consider any evidence tending to show an embezzlement more than six years prior to the finding of this indictment, even for the purpose of showing an intent. 4. If the jury shall find that the $ 1800 received by the defendant of the Marlborough Savings Bank was used by the defendant in paying proper town charges, and he intended so to use it, then such use would not be embezzlement, although it was not accounted for in his account with the town."

The judge refused to give said rulings in the terms requested, but instructed the jury in substance as follows: "The mere making of false entries, or additions, or omissions, in his books, would not amount to embezzlement, nor warrant a conviction on the indictment; and on the books alone, no jury ought to convict unless there is other evidence which satisfies the jury, beyond a reasonable doubt, that such false entries, or additions, or omissions, were intentional, and not the result of accident or mistake, and were made with an intent to defraud the town.

"The government is, by statute, limited to acts done within six...