Commonwealth v. Peakes

• Decision Date: 02 January 1919
• Citation: 121 N.E. 420,231 Mass. 449
• Parties: COMMONWEALTH v. PEAKES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 449

121 N.E. 420

COMMONWEALTH

v.PEAKES.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 2, 1919.

Exceptions from Superior Court, Suffolk County; Wm. J. Dana, Judge.

Charles E. Peakes was convicted of forgery and larceny, and he excepts. Exceptions overruled.

A. C. Webber, Asst. Dist. Atty., of Boston, for the Commonwealth.

E. R. Anderson and Horace Guild, both of Boston, for defendant.

DE COURCY, J.

The jury have found the defendant guilty on an indictment containing 25 counts, based upon nine separate transactions. The nineteenth count charges him with the larceny of $2,200; and 24 counts are for forgery, uttering, and larceny in relation to the other eight occurrences. The facts with reference to these last, as proved by the commonwealth, and admitted by the defendant in his testimony, are substantially these: Peakes was the treasurer of F. E. Atteaux Company, Incorporated, a corporation organized in Massachusetts in 1914, to take over the business of a similar corporation organized in 1900 under the laws of New Jersey. The corporation (by which we refer to both the present concern and its predecessor) was a manufacturer and importer of dyestuffs and chemicals. The defendant, in the eight transactions referred to, obtained from the company's cashier a check signed in blank by her, telling her that he was going to the bank to buy exchange to send to a foreign customer, and that on learning what the exchange would cost he would fill in the check for that amount, and return with a receipt. As matter of fact he filled in the checks for larger amounts, cashed them, and retained for himself the excess over what the exchange cost.

The defendant concealed his appropriation of his employer's money by many acts that were calculated to deceive the bookkeepers, auditors, and others. The receipts which the bank gave him, showing payment of the foreign drafts he purchased, were raised by him to the amount for which he had filled in the corporation's checks, either by altering the figures on the bank's receipt, or by inserting items indicating that additional drafts had been purchased. In the alterations he simulated the handwriting and the ink of the originals. He dictated letters which were supposed to accompany the exchange drafts that he pretended to have bought, and then destroyed the letters, leaving copies on the files, but sending others in their place. He removed from the files acknowledgments received from the foreign creditors, and he caused fictitious invoices to be entered on the accounts of these creditors in the corporation's books, to avoid the appearance of overpayment. As to the nineteenth count for the larceny of $2,200: After purchasing with the corporation's check two drafts for 10,000 francs each, he sent but one (although the books and correspondence indicated that he sent both), sold the other to the Trust Company, and appropriated the proceeds after deceiving the cashier.

The defendant testified substantially as follows: That in 1905 while he was treasurer, a shortage was discovered in certain accounts of the corporation, and that he was accused as the person responsible for it; that although he did not in fact take any money, and was not permitted to examine the books to learn what the shortage represented, he agreed to pay to the corporation the sum of $21,000; that thereupon he paid over money he had saved, conveyed his real estate and borrowed funds wherewith to pay this sum, the last payment being made in 1909; that Mr. Atteaux orally agreed that if he (Peakes) would pay in this money, and so prevent an investigation of the books, the corporation would repay him; that in 1914, after reminding Atteaux of this agreement, and being told that what he should take to repay himself must not show on the books, he began to take these sums of money; that he had paid himself ‘somewhere about $16,000,’ but had no memorandum of the amount, and had destroyed his check books. He testified that he believed the corporation owed him the money; that he thought Atteaux, the president, had a right to agree that this money should be repaid to him; and that he only intended to carry out the arrangement made with Atteaux in repaying himself what he believed was due to him.

The principal contention of the defendant is that the trial judge erred in the instructions he gave, and in the refusal to give certain rulings requested, on the issue of his criminal intent. Apparently his claim is that, if he took the money in payment of a debt which the corporation owed him, and acted under an honest belief that he had a legal right to resort to the methods shown by the evidence, he could not be found guilty.

Plainly there was no error in charging the jury that the defence failed if there was no debt due to the defendant from the corporation. That was the very basis of his present claim of supposed right to appropriate the money.

Even assuming that the jury believed the unsupported and contradicted testimony of the defendant as to the alleged indebtedness of the corporation to him for the money he had paid as restitution between 1905 and 1909, that would afford him no legal justification for the fraudulent alteration of the receipts for foreign drafts issued by the bank. The description of these receipts in the indictment as ‘an accountable receipt for money’ seems appropriate, especially as copies of them were set forth in the specifications filed by the commonwealth, which must be read in connection with the indictment. R. L. c. 218, § 39; Commonwealth v. Howard, 205 Mass. 128, 145, 91 N. E. 397. The false making or altering of such instruments would constitute forgery, within the definition of the statute. Commonwealth v. Lawless, 101 Mass. 32;Commonwealth v. Boutwell, 129 Mass. 124; R. L. c. 209, § 1. See R. L. c. 218, § 22. The ‘intent to injure or defraud,’ referred to in the statute establishing the penalty for forgery (Rev. Laws, c. 209, § 1) is a general intent to defraud any one. R. L. c. 218, § 30; Commonwealth v. Costello, ...