Commonwealth v. Barry

• Decision Date: 12 September 1874
• Citation: 116 Mass. 1
• Parties: Commonwealth v. Joseph T. Barry
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 1

Commonwealth v. Joseph T. Barry

Supreme Court of Massachusetts

September 12, 1874

[Syllabus Material] [Syllabus Material]

Berkshire. Indictment on the Gen. Sts. c. 161, § 43 charging the defendant on October 21, 1871, with feloniously buying and receiving and aiding in the concealment of certain legal tender notes and bank bills of the goods, chattels and moneys of the National Mahawie Bank, knowing the same to have been feloniously stolen, the said legal tender notes and bank bills having been before then feloniously stolen, taken and carried away by one William S. Hine.

At the trial in the Superior Court, before Rockwell, J., the defendant pleaded in bar to the jurisdiction tat the offence set forth in the indictment was only cognizable by the Circuit Court of the United States for the District of Massachusetts, but the presiding judge disallowed and overruled the plea.

William S. Hine was called as a witness, and testified as follows: "I was the book-keeper and teller of the National Mahawie Bank of Great Barrington, Massachusetts, from February 1, 1869, to October 21, 1871, inclusive; as such teller I had the control of the combination locks of three of the four doors of the vault and safe, (there being two doors on the vault and two on the safe,) the cashier had the other combination; without a knowledge of the combinations of these four locks, access could not be obtained to the inner safe, in which the money of the bank was kept; the cashier did not have the combinations of the three locks which I had, nor I of the one which he had, which was that of the outside door of the inner safe, being the third door of the vault. At noon, October 21, 1871, the cashier left the bank to go to dinner, putting the money into the vault, and locked the outside door of the vault, leaving the outside door of the inner safe standing open; I opened the outer door of the vault, the combination of which lock I had, and finding the outside door of the inner safe open, I took a screw driver and removed the brass box which held the number of the combination on that door, and in that way obtained a knowledge of the combination of that lock, which enabled me to unlock that door when locked while that combination was in use. There being an error in the books of the bank, the cashier and I remained in the bank that evening till half-past eight o'clock, at which time I placed the money in the safe and fastened the doors; the cashier and I then left the bank together, he going towards his home, and I then returned to the bank, unlocked the door, entered the bank, lighted a candle, and unlocked the doors of the safe and vault, using the same combinations which existed at noon-time, and removed all the funds and money of the bank, wrapped them up in a paper and left the bank, locking all the doors, and proceeded with the money to my boarding-house. On Friday, October 20, 1871, I received notice from the cashier that I would be discharged from the employ of the bank on account of my irregular habits; on the evening of that day, at about nine o'clock, having made up my mind to take the funds of the bank, I met the defendant Barry in the streets of Great Barrington, and asked him to drive me to Pittsfield the next afternoon, as I wanted to take the nine o'clock p. m. train from Pittsfield to Albany, and agreed to give him $ 50 if he would get me there in time to do so; he seemed astonished at the offer; I told him if I chose I could take the funds of the bank, and I thought of doing so the next day; he asked me if I meant business, and I said yes; we then proceeded down the railroad track some distance, and I then disclosed to him my plans; this was the commencement of the defendant's knowing or having anything to do in the transaction; after I had taken the funds of the bank to my boarding-house, and placed them in a satchel, I proceeded with the money from my boarding-house to Humphrey's Bridge, the place agreed upon for meeting Barry; I found Barry there without a conveyance of any kind, and we then concluded to walk to Van Deusenville, where I was to take the cars, and did so; I took from the satchel three packages of money, amounting in all to about $ 1700, and delivered them to the defendant Barry, and took the train for Pittsfield; that was the last I saw of Barry."

It was proved that Hine at January term, 1872, of the Superior Court in Berkshire, had pleaded guilty to an indictment for larceny of $ 24,894 of the moneys of the said National Mahawie Bank from the building of said bank, and been sentenced thereon to the house of correction for two years.

The government proved the organization of the National Mahawie Bank, under the laws of the United States, and in accordance with the provisions of the acts of Congress in relation to the organization of national banks contained in the U.S. St. 1864, c. 106.

The defendant asked the judge to rule that upon this evidence his offence was not within the jurisdiction of the court. The judge declined so to rule; the jury returned a verdict of guilty and the defendant alleged exceptions.

Exceptions overruled.

J. M Barker, (E. M. Wood with him,) for the defendant. 1. The offence of the defendant was only cognizable by the courts of the United States. It appeared in evidence that Hine was the teller of the National Mahawie Bank, which was organized under the U.S. St. of 1864, c. 106, and that while such teller, he abstracted, and took from the vault of the bank a large sum of money belonging to the bank, and converted it to his own use. This was an offence under § 55 of that act, and was punishable as a misdemeanor. There was evidence tending to show that the defendant aided and abetted Hine in taking said money and converting it to his own use, advising with him in regard to taking the money, and assisting him in carrying the same to Van Deusenville, and receiving and concealing a portion of the same. By so doing he committed an offence under the U.S. St. of 1869, c. 145. The offence was only cognizable by the courts of the United States. The ...