Commonwealth v. Bennett

• Decision Date: 04 September 1875
• Citation: 118 Mass. 443
• Parties: Commonwealth v. James H. Bennett
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 443

Commonwealth v. James H. Bennett

Supreme Court of Massachusetts

September 4, 1875

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Suffolk. Indictment on the Gen. Sts. c. 161, § 42, averring that the defendant, on September 1, 1874, at Boston, "being then and there the clerk, servant and agent of Gustavus G. Prescott and Elijah W. Wood, said Prescott and Wood then and there being copartners in business, (the said Bennett not being then and there an apprentice to the said Prescott and Wood, or to either of them and not being then and there a person under the age of sixteen years,) did then and there, by virtue of his said employment have, receive and take into his possession certain money to the amount and of the value of twenty-five thousand dollars, of the said Prescott and Wood, as such copartners, the said employers of the said Bennett, and that the said Bennett, the said money so by him had, received and possessed, then and there feloniously did embezzle and fraudulently convert to his own use, without the consent of the said employers, or either of them, whereby, and by force of the statute in such case made and provided, the said Bennett is deemed to have committed the crime of simple larceny. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Bennett then and there, in manner and form aforesaid, the said money, of the property and moneys of the said Prescott and Wood, feloniously did steal, take and carry away, against the law, peace and dignity of said Commonwealth, and contrary to the statute in such case made and provided."

In the Superior Court, before the jury were empaneled, the defendant moved to quash the indictment for the following reasons: "1. Because there is in said indictment no sufficient allegation or description of the money alleged to have been embezzled. 2. Because there is in said indictment no allegation that the money alleged to have been received and embezzled was the property of another person than the defendant. 3. Because the said indictment is argumentative, and is in other respects insufficient and informal." Dewey, J., overruled the motion, and the defendant excepted.

At the trial the government called Elijah W. Wood, who testified that he was a member of the firm of Prescott, Wood & Co., in Boston, and that his copartner was Gustavus G. Prescott; that the defendant had been in the employ of the firm as bookkeeper for some twenty-five years, and had a salary only prior to January 15, 1869; that on that date an agreement was made with the defendant, and one Morse, by which, for their services, they were thereafter each to receive a salary of $ 1500 a year, and also five per cent. of the profits, computed semi-annually, and that they had so continued up to March 11, 1875, receiving the $ 1500 yearly and profits when there were any; that for the past one or two years there had been no profits; that during the six years the defendant had received in profits about $ 3000; that there was an agreement that the defendant should not share losses; that the witness and Prescott had, on two or three occasions, since January 15, 1869, spoken to each other of having the names of the defendant and Morse printed with theirs upon the bill-heads and cards of the concern, and intended to do so, and would have done so if it had not happened that whenever it was proposed there was a supply of bill-heads and cards on hand; that the witness had mentioned this to the defendant, and told him of their intentions prior to the date of the embezzlement alleged in the indictment; that the defendant was bookkeeper, was "confined exclusively to the books," and "simply had charge of the books;" that there was a money-drawer in the office, and that all moneys paid in should go, and went in the usual course of business, into this drawer. It did not appear that the defendant had any authority, or that it was any part of his duty, to receive any money, and there was no evidence to show whether any money taken by the defendant was taken from the drawer or otherwise. The cash book of the firm was produced, covering the time from October 1, 1874, to February 6, 1875. The entries were in the handwriting of the defendant.

The government first put in evidence a transaction in the book covering the dates October 1, 2, 3, 1874, and showing the cash receipts for these days; this appeared to have been added at one time, and to have been misadded, so that the apparent receipts were $ 100 less than the actual receipts. The government then proceeded to introduce the account covering October 5-10, in the same book, where there was a separate addition and a similar misaddition of $ 200; then the account covering October 5-19, where was a similar misaddition of $ 100; the account of October 20, 21, where was a misaddition of $ 100; also a mischarge of $ 75 on February 2, 1875, and a mischarge of $ 300 on February 6, 1875.

The government claimed the right to introduce these separate transactions subsequent to October 3, under the provisions of the Gen. Sts. c. 161, § 42, ^[*] and to convict the defendant of embezzling the whole amounts of the several misadditions and mischarges. The defendant objected to the admission of any transaction subsequent to that of October 1, 2, 3; the judge admitted the evidence, ruling that the defendant, under the indictment, could be convicted of only one act of embezzlement, but evidence of his other acts was competent upon the question of intent, and the defendant excepted. The witness further testified, that on March 11, 1875, he and the defendant were in the office, and he asked the defendant for the balance sheet for the six months ending January 15, 1875; that the defendant gave it to him, and he looked it over; that he then asked the defendant for a paper showing his additions of the balance sheet; that the defendant gave it to him, and then went out, leaving his hat and coat, and did not come back; that a day or two after the witness went to defendant's house and saw the defendant, and asked him to give a statement of what he had taken; that the defendant said he could not, that he had kept an account for several years, but had given it up some time ago; that he said to the defendant that he (the witness) had been over the balance sheets, and found a discrepancy of $ 25,000, and the defendant said he thought it was about $ 20,000, and that it had been done within eight or ten years; that since that time he had talked with the defendant as to the mischarges of February 2 and February 6; that the defendant said that the $ 75 of February 2, charged to one Aldrich, had been taken by himself, and subsequently the name of Aldrich had been erased with pencil, and his own substituted in pencil; and that the $ 300 mischarged on February 6 had also been taken by himself. No other witness was called, and the foregoing was all the material evidence in the case.

The government was then allowed to elect and rely upon the transaction of February 6, as the principal embezzlement, and upon the misadditions and the mischarge of February 2, as evidence on the question of the defendant's intent in taking the $ 300 on February 6.

The defendant contended that the government had already made an election to rely upon the transaction of October 1, 2, 3, and that the transactions subsequently to that were incompetent for any purpose, and excepted to the allowance of an election at this point.

The defendant then moved for a verdict of not guilty, on the ground that it would not be competent for the jury to convict the defendant on this evidence. The judge declined to direct such a verdict, and the defendant excepted.

The defendant then asked the judge to instruct the jury as follows: "1. That only one act of embezzlement, and upon a single day or occasion, can be shown under this indictment. 2. That the government has not shown that the defendant was a clerk, servant or agent, within the meaning of the statute, or that the money claimed to have been embezzled came to his possession by virtue of his employment. 3. That the government has not shown whether the offence committed, if any, was embezzlement or larceny, and so the defendant must be acquitted. 4. That there is in the case no sufficient evidence of the necessary fraudulent intent on the part of the defendant. 5. That the mere making of false entries, or additions in the books, will not amount to embezzlement, nor warrant a conviction on this indictment. 6. That if the defendant had an interest in the business, or believed that he had, he cannot be convicted, and that the facts proven show that he did have such an interest that he cannot be convicted. 7. That the jury may find, on these facts, that the defendant had an interest in the business and was a partner, or believed himself to be, and in either case, if the jury so find the fact, he cannot be convicted. 8. That the facts shown by the government are in law sufficient to constitute the defendant a partner, and do so constitute him a partner to the extent, at least, that he cannot be convicted of this offence. 9. That, upon all the evidence in the case, it will not be competent for the jury to find a verdict of guilty. 10. That, if the jury find the defendant guilty, they cannot find a verdict except for the embezzlement of October 1, 2, 3, of the sum of $ 100. 11. That, on the claim of the government, the defendant cannot be convicted of embezzling more than $ 300."

The judge gave the 1st, 5th and 11th requests, and as to the 2d request, the judge left it to the jury to say whether or not the arrangement had shown that the defendant was a clerk servant or agent, within the meaning of the statute, and...