Commonwealth v. O'Brien

• Citation: 26 N.E.2d 235,305 Mass. 393
• Parties: COMMONWEALTH v. JAMES M. O'BRIEN.
• Decision Date: 12 March 1940
• Court: United States State Supreme Judicial Court of Massachusetts

305 Mass. 393

26 N.E.2d 235

COMMONWEALTH v. JAMES M. O'BRIEN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 12, 1940

February 5, 1940.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Municipal Corporations, Officers and agents. Words "Fraudulently."

Evidence of conduct of the treasurer of a city and of his secretary and his attorney with respect to an admitted shortage in cash existing when his successor took office, was not sufficient to warrant a conviction of an intentional and fraudulent conversion under G.L. (Ter. Ed.) c. 266,

Section 51.

INDICTMENT, found and returned on May 27, 1938. The indictment was tried before Goldberg, J.

J. P. Brennan, for the defendant. E. O. Proctor, Assistant Attorney General, for the Commonwealth.

COX, J. The defendant was found guilty by a jury upon one count of an indictment which alleged that "James M. O'Brien on the sixth day of January in the year of our Lord one thousand nine hundred and thirty-five, being an officer of a city, to wit: the treasurer of the city of Revere, a municipal corporation legally established and existing, and being duly and legally elected and qualified to perform the duties of such officer, did embezzle and fraudulently convert and did fraudulently take and secrete with intent to embezzle and fraudulently convert, money of the amount and of the value in all of" $13,277.04, "of the property of the said city of Revere." At the close of the Commonwealth's evidence the defendant rested and presented a motion for a directed verdict of not guilty, which was denied subject to his exception.

The record contains three bills of exceptions in which numerous exceptions are set out. In the view, however, that we take of the case, it is unnecessary to consider any exceptions other than those to the denial of the defendant's motion, and to the overruling of a "Plea in Abatement" that is alleged to have been regarded and treated by the trial judge as a motion to dismiss. This motion related to an alleged irregularity in the summoning of the grand jury, by whom, we assume, the indictment in question was returned. From the record it appears that on May 27, 1938, the defendant pleaded not guilty to the indictment. It was not until October 7 1938, that he filed the so called plea in abatement. The general plea of not guilty in the circumstances was, in the main, a waiver of all defects touching the indictment and it was then too late to attack its validity. Commonwealth v Lombardo, 271 Mass. 41 , 44. Commonwealth v. Ventura, 294 Mass. 113 , 120, and cases cited. The fact that the bill of exceptions alleges that the "Plea in Abatement" or motion was filed before the defendant pleaded to the indictment is not controlling in face of the record which shows that this is not the fact. Commonwealth v. McGrath, 115 Mass. 150 . See Cohen v. Price, 273 Mass. 303 , 306.

It was not disputed that the defendant from 1927 to January 8, 1935, was the duly elected and qualified treasurer of Revere serving in that capacity. He appears to have vacated the office upon his election as mayor of the city. There was evidence that in the treasurer's general office there was a cage and a vault; that the vault was three feet two inches in width, and that its top shelf was nine feet eight inches from the floor. On January 8, 1935, when the treasurer who succeeded the defendant assumed his office, a State accountant turned over to him in cash and checks about $95,000. The defendant was not present, and the treasurer, at the request of the accountant, gave to one Farrell a receipt made out to the defendant for the amount of money received. Farrell, up to that time, had been an employee in that office. The new treasurer had already made arrangements with the defendant for Farrell to remain in the office in order to acquaint him with his duties. She remained there until May 4, 1935, and did routine work up to the middle of March when she went to work in another department in the city hall. After the middle of March, while the accountants were there, as hereinafter appears, she was back and forth in the treasurer's office, doing certain work. On March 9, 1935, accountants from the Commonwealth's division of accounts came to the office to audit the books and found that as of that date there was a shortage of $13,277.04. By taking the balance of cash on hand on January 8, as a basis, this shortage was found to have been in existence on January 8, except for a difference of $10. It does not appear how long the accountants were at work in the office, but from March 9 to May 4, Farrell was there assisting them, and during that time she had keys to the office and to the inside door of the vault, which she returned to the treasurer on May 20.

On the morning of May 18, when one of the clerks, who was a witness, came to the office, she found Farrell and another employee there. When the other employee left, Farrell went into the vault, where she remained ten or twelve minutes, and then came out with a tin box in her hand which she had taken from the top shelf. She had a key. In the presence of the other clerk she opened the box, counted the money that was in it, and gave $12,401.51 as the amount. This money was done up in "packages," and Farrell counted it by packages and not bill by bill. The box was then closed, locked and placed in the vault by her. On May 20, the defendant asked the accountants to come to Revere. When they arrived, he told them that some money had been found over the weekend; that "he `understood it was in a canvas bag they deliver money from the bank.' That his secretary, Miss Farrell, had located the money; that it was in the treasurer's office." The accountants went to the treasurer's office and Farrell brought out a box from the vault and unlocked it with a key that she took from her handbag. The money in the box amounted to $12,401.51. Included in the packages of money were new bills amounting to $1,900 which were not released from the bank of issue until April 10, 1935. The defendant was not present when Farrell turned over the money that was contained in the box. The treasurer gave the following receipt: "Received from Josephine Farrell, cash in box, as of March 9, 1935, City of Revere, $12,401.51." It was not until October 10, 1935, that the report of the accountants was filed, checked and submitted to the defendant.

When the new treasurer took office, there were a "couple" of tin boxes there. Two cash boxes were identified at the trial, one of which had been used by the defendant when he was treasurer, and the other by one of the clerks. This clerk testified that she did not see the "box" from the time the new treasurer took office until it was found on May 18. Farrell had occasion to go to the vault four or five times a day from January 1 to May 18. The only other evidence bearing upon the whereabouts of the box in question was from one of the clerks who testified that she never saw anyone bring it in or take it out of the office. During the time that the defendant was treasurer, people other than the clerks came within the enclosure of the cage; the defendant and two of the clerks made the bank deposits; when the defendant was absent from the office, the clerks would receive whatever money came in and Farrell would make entries in the various books. During the defendant's absence, checks and cash were paid out and the payrolls were paid in cash. The "deposits of money were routine and the treasurer did not attend to the actual deposits. . . . [He] left blank checks with his signature and . . . [the clerks] usually filled in these checks and would make payments on warrants or any other things." No false entries were found in any of the books.

In July, 1936, an attorney, acting for the defendant, turned over to the treasurer $3,233.96. This amount appears to represent the difference between the shortage apparently existing before the cash in the box was found, and the amount found therein, together with two items, one of $2,000.63, and the other of $357.76, that had to do with certain tax titles. These items were the basis of two other counts in the indictment upon which the defendant was found not guilty. The balance of $875.53 represented the amounts of checks received by the defendant when he was treasurer that could have been found to have been worthless. There was evidence that the defendant was not in the treasurer's office at the time the cash was counted on January 8, or at any time thereafter until some time in September of 1935.

G.L. (Ter. Ed.) c. 266, Section 51, so far as material, provides: "A . . . city . . . officer who embezzles or fraudulently converts, or who fraudulently takes or secretes with intent so to do, effects or property which belong to or are in possession of said . . . city . . . shall be punished . . . ." The burden was upon the Commonwealth to establish beyond a reasonable doubt that the defendant, as treasurer of the city of Revere, fraudulently converted, or fraudulently took or secreted with intent to fraudulently convert, the city's money. It is not contended that he was not the treasurer, or that there was not a shortage of money for which he was properly accountable. The treasurer of a city is an independent accounting officer, by statute made the depositary of its moneys, and the legal possession of the specific moneys in his hands, from whatever source, is in him. He holds all moneys of the city as its property and exclusively for its use. Mansfield v. Hanaford, 250 Mass. 559 , 561, and cases cited.

A fraudulent intent is made a constituent and an essential part of the offence charged. Without this intent there may be misconduct, but there will be no criminality, and the question whether there has been a...