Commonwealth v. Flynn

• Decision Date: 20 January 1897
• Citation: 45 N.E. 924,167 Mass. 460
• Parties: COMMONWEALTH v. FLYNN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 460

45 N.E. 924

COMMONWEALTH v. FLYNN.

Supreme Judicial Court of Massachusetts, Suffolk.

January 20, 1897

Prosecutrix testified substantially as follows That on February 27, 1896, witness was employed as a cook by a family living on Mill street, Dorchester. That defendant came to her, and asked her to purchase a ticket entitling her to have one dozen photographs taken for $1.50, 25 cents to be paid in advance, at the Revere Studio, 98 Court street Boston. That she purchased a ticket of defendant, and paid him therefor 25 cents. That thereupon defendant said to witness that, if she would give him 25 cents more, he (defendant) would finish off six or seven more photographs for witness. "I said to defendant that I had no more change. I had paid him twenty-five cents. He told me he would change a bill. I gave him a dollar bill, and he put it in his pocket, and said: 'There is another man with me on the road. I have not got the change. I am going out for the change.' He gave me two tickets, and told me to hold them till he came back. He never came back. I did not see him till a week or so later, when he denied that he ever saw me before." That witness, after handing said dollar bill to defendant, had no claim upon it except for the 75 cents change defendant agreed to bring back to her. That she had never visited the Revere Studio, nor applied to have any pictures taken upon the ticket purchased of defendant. Christopher Karcher, the complainant, testified substantially as follows, subject to the defendant's objection, and exception duly made and saved: That on March 9, 1896, he arrested defendant. That he then asked him if he was guilty, and he said, "No." That defendant said he had to suffer for some one else. That defendant gave witness his name Andrew Hall. That witness then took defendant to police station 11, in Dorchester, and there asked witness his name, and he would not give his right name. That defendant said his name was Taylor, and that then he said his name was Daniel Flynn.

COUNSEL

John D. McLaughlin, for the Commonwealth.

Clarence W. Rowley, for defendant.

OPINION

MORTON J.

The defendant was identified by the witness Driscoll as the man who obtained the bill from her, and, in addition to the representations by which he induced her to part with it there was evidence that he went away with it, and never returned; and that when he was arrested, about 10 days later, he denied that he had ever seen her before, gave different names to the officer who arrested him, and said that he had to suffer for some one else. It was competent for the jury to find in this testimony that the title to the bill did not pass to him, and that he obtained possession of it by fraud, with the present intent to convert it to his own use, and did so. This would constitute larceny. Com. v. Rubin, 165 Mass. 453, 43 N.E. 200; Com. v. Lannan, 153 Mass. 287, 26 N.E. 858; Com. v. Barry, 124 Mass. 325. The first of the rulings asked for by the defendant was therefore rightly refused.

The remaining instructions which were requested by the defendant present questions of more difficulty. If the circumstances disclosed by the evidence were such as to fairly justify the inference that a relation of trust and confidence arose between the witness Driscoll and the defendant, so that he became her debtor for 75 cents, and she gave him credit therefor, then, the title to the bill having passed to him, he could not be convicted of larceny, though he had obtained possession of it by fraud. Com. v. Barry, supra. But if he was only her hand or agent to get the bill changed, with the right to retain 25 cents out of it when he had done so, returning the rest to her, and he obtained possession of the bill by fraud, with the intent at the time to appropriate the whole to his own use, and did so, then the title to the bill remained in...