Commonwealth v. Duncan

• Decision Date: 12 December 1924
• Parties: COMMONWEALTH v. DUNCAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 405

145 N.E. 561

COMMONWEALTH

v.DUNCAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 12, 1924.

Exceptions from Superior Criminal Court, Suffolk County; J. F. Quinn, Judge.

Charles H. Duncan was convicted of larceny of money, and he excepts. Exceptions overruled.

1. Criminal law k844(1)-Exception to charge as entirety not sustained.

Exception to charge ‘in its entirety’ cannot be sustained.

2. Criminal law k822(6)-When charge correctly stated elements of offense, part thereof held not erroneous.

In prosecution for larceny of money from religious society, charge that, if defendant misappropriated it by using it for rent or personal wants, or if he lent it to minister without society's consent, and without disclosing that he was to do so, he was guilty, was not erroneous, where in charge as a whole all necessary elements of offense were stated.

George Alpert, Asst. Dist. Atty., of Boston, for the commonwealth.

J. F. Henry, of Roxbury, for defendant.

RUGG, C. J.

This is a complaint charging the larceny of money belonging to a religious society. The complaint is framed under G. L. c. 266, § 30, wherein it is provided in effect that the crime of larceny may be committed by embezzlement, by obtaining money by false pretenses, and by taking and carrying away personal property by trespass out of the possession of the owner. Commonwealth v. King, 202 Mass. 379, 88 N. E. 454.

[1] The defendant excepted to the charge ‘in its entirety.’ Such an exception cannot be sustained under our settled practice. Curry v. Porter, 125 Mass. 94;Commonwealth v. Meserve, 154 Mass. 64, 75, 27 N. E. 997;Commonwealth v. Jewelle, 199 Mass. 558, 85 N. E. 858;Cereghino v. Giannone, 247 Mass. 319, 324, 142 N. E. 153. The charge as a whole was fair.

[2] Exception was taken to the portion of the charge in which it was stated that if the defendant ‘misappropriated that money by using it for rent or any personal wants, if he lent it to the minister in any amount or amounts without the consent of the society, and without disclosing to the society he was to so do, he is guilty of the charge here, and there is nothing left for you to do but to convict him.’ None of these words can be wrenched from their context but must be read as a part of the charge as a whole. Commonwealth v. Cooper, 219 Mass. 1, 3, 106 N. E. 545;Fisk v. New England Tire & Supply Co., 244 Mass. 364, 374, 138 N. E. 901. There was no error in this part of the charge. It stated correctly the...