Commonwealth v. Hurd

• Decision Date: 31 December 1877
• Citation: 123 Mass. 438
• Parties: Commonwealth v. Thomas L. Hurd
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 438

Commonwealth v. Thomas L. Hurd

Supreme Court of Massachusetts

December 31, 1877

Suffolk. Indictment for larceny on April 14, 1877, of a horse and two wagons alleged to be the property of William C. Hawkes.

At the trial in the Superior Court, before Wilkinson, J., the government introduced evidence tending to show that Hawkes had his place of business near the defendant's stable and kept his horse and wagons in that stable; that Hawkes offered the defendant a commission if he would bring to him a purchaser of the horse and wagons at a stated price, but in no case was the defendant to make a sale of the property. This was denied by the defendant, who offered evidence tending to show that he was authorized by Hawkes to sell the property to any purchaser he might find, with no limitation except as to price. It also appeared in evidence that on April 14, 1877, the defendant sold and delivered the horse and wagons by bill of sale to one Keenan, for $ 210, and that this money was never paid over or offered to be paid over to Hawkes. The government also introduced evidence tending to show that the defendant absconded with the money, and could not be found by the officer who had a warrant for his arrest.

The defendant asked the judge to instruct the jury that, if the defendant, after selling the property rightfully, intended upon receiving the proceeds of such sale, or after receiving such proceeds, to convert them to his own use, and did in accordance with such intention keep the same, such intention and keeping was not evidence tending to show the alleged larceny.

The judge declined to instruct the jury in the manner requested but on this part of the case, instructed them as follows "The defendant is charged in the indictment with a larceny of the wagons and horse, and not of the money received therefor; and unless the jury are satisfied, beyond a reasonable doubt, that the taking and selling of the wagons and horse was without right or color of right, the defendant cannot be convicted. If the defendant sold the wagons and horse rightfully, or under an honest belief that he had such right, no wrongful appropriation or keeping of the money would warrant a verdict of guilty. The fact, however, if the jury find it proved, that the defendant absconded and kept the money may be considered by the jury as evidence bearing upon the question whether the taking and selling of wagons and horse were...