Commonwealth v. Gallagher

• Decision Date: 27 November 1878
• Citation: Commonwealth v. Gallagher, 126 Mass. 54 (Mass. 1878)
• Parties: Commonwealth v. William Gallagher
• Writing for the Court: Gray, C. J.
• Court: Supreme Judicial Court of Massachusetts

126 Mass. 54

Commonwealth v. William Gallagher

Supreme Court of Massachusetts

November 27, 1878

Suffolk. Indictment, charging the defendant with the larceny on September 19, 1878, from the person of John Sheridan, of "divers promissory notes, payable to the bearer on demand, current as money in said Commonwealth, of the amount and of the value of eighty dollars, a more particular description of which is to the jurors unknown."

At the trial in the Superior Court, before Putnam, J., Sheridan testified that his wallet, containing eighty dollars in bank bills, one twenty-dollar bill, six five-dollar bills, and three ten-dollar bills, was taken from him by the defendant on the day alleged in the indictment; that in addition to these bills, the wallet contained two or three small bills ones and twos, left from a five-dollar bill, which he had got changed during the day; that he testified before the grand jury that he had the eighty dollars, but did not mention the other small bills, or tell what the denominations of the bills were; and that he thought no question was asked him about it.

Upon this evidence, the defendant requested the judge to instruct the jury as follows: "1. If the grand jury had a full description of the bills, and if the jury so find on the evidence, it is not competent for the government to say that a more particular description of their value was to them unknown; and the jury should for that reason acquit. 2. The government must prove to a moral certainty that the bills were of the precise amount and value of eighty dollars neither more nor less; and if, upon the evidence, the government has not satisfied the jury of that precise amount, beyond legal doubt, the jury should for that reason acquit. 3. It is not competent for the government, under the description in the indictment, to ask a conviction for the larceny of national bank bills; and if, upon the evidence, the jury find that such were the 'promissory notes' lost by Sheridan, they should acquit the defendant." The judge declined to give these instructions.

The defendant called as a witness one Clark, whose evidence tended to confirm that of the defendant, and to contradict that of Sheridan, as to what transpired at the time of the taking. On the cross-examination of Clark, the government asked him if he was not a friend of the defendant; to which he replied that he was not. He was then asked, "Did you not offer one Alley, or somebody else, forty...