Commonwealth v. Smith

• Decision Date: 24 June 1880
• Citation: 129 Mass. 104
• Parties: Commonwealth v. Daniel Smith
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 104

Commonwealth v. Daniel Smith

Supreme Court of Massachusetts

June 24, 1880

[Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Indictment containing seventeen counts, some for larceny, and some, under the Gen. Sts. c. 161, § 38, for embezzlement. At the trial in the Superior Court, before Pitman, J., a verdict of not guilty was returned on the fifth count, and a nolle prosequi was entered as to all the other counts except those hereinafter stated, on which the defendant was found guilty; and a bill of exceptions, in substance as follows, was allowed:

The second count charged the embezzlement of twelve hundred and thirty-one dollars. The fourth count, the larceny of four hundred and twenty gallons of distilled spirits, and of four hundred and twenty gallons of whiskey. The seventh count, the embezzlement of seven hundred and sixty dollars. The tenth count, the embezzlement of eight hundred and sixteen dollars. The twelfth count, the embezzlement of nine hundred and sixty-five dollars. The fifteenth count, the embezzlement of eleven hundred and fifty-nine dollars. The counts for embezzlement alleged the money taken to be the property of Rachel S. Gaff and Oliver Perrin, copartners; and the count for larceny alleged the goods taken to be the property of Oliver Perrin.

The defendant had been employed by the firm of J. W. Gaff &amp Company, of Cincinnati, Ohio, distillers of whiskeys, under a written contract, dated October 10, 1876, by the terms of which he was "to sell our whiskeys and distilled spirits in the New England States;" and to "receive in lieu of salary" certain specified commissions. "All goods to be priced to the said D. Smith at our lowest net cash price; and for any advance that the said D. Smith may be able to obtain from any customers in the said New England States, over and above our net cash prices, the said D. Smith shall receive fifty per cent of any such advance, in addition to the commissions already named above; the said Daniel Smith shall devote his entire time and attention to the sale of our goods, visiting such cities and towns in New England as said Daniel Smith or ourselves shall deem expedient for the proper sale of our goods, and as often as the necessities of the trade demand it; the said Daniel Smith, in consideration of above commissions, shall pay his own travelling and incidental expenses, and shall receive no other salary or pay for his services than the commissions above named; the said D. Smith shall report all sales as fast as they are made directly to us, and no sales shall be considered binding until approved by us; upon all time sales he shall get three cents advance upon our net cash price for sixty days' time, for thirty days one cent, and for ninety days four cents; also, in consideration of above commissions, he shall guarantee say fifteen per cent of all sales made by him or to his territory; the said Daniel Smith shall put a limit upon what credit each and every customer in said New England States shall be entitled to, and that we shall at no time exceed said limit except upon our own risk, or upon consultation with him."

Thomas T. Gaff, a witness for the government, testified that he was manager of the business of the firm of J. W. Gaff & Company, of which firm Oliver Perrin was a partner; that the defendant was paid his commissions directly from the firm; that he would draw on them and they would accept his draft, and that this was the only way in which he was paid; that he received no commission for making collections, had no authority to use such collections for himself, was not permitted to deduct a commission for sales out of a collection, and had never done so; that for some time the defendant had made various collections for the firm, and it had been their practice to receive them and ratify them; that they found no fault with this course of business, but only with his not paying over; that in all these collections the defendant never sent bank-bills by express, but forwarded a check of the amount of the collection, payable to their order, and signed either by himself or the creditor from whom the collection was made.

As to the second count, there was evidence that the defendant, on July 25, 1879, at Springfield, Massachusetts, collected by a check to his order, which he indorsed and got cashed at a Springfield bank, $ 1231.23, from Eugene Lynch, in payment for a bill of goods, sold by him on behalf of the firm, and five days afterward wrote a letter from Boston, remitting his own check, on the Columbian National Bank of Boston, payable to the order of J. W. Gaff & Co., for the same amount, and that this check was never paid. The government put this check in evidence, against the objection of the defendant, who also objected to the evidence of the way in which he was paid his commission. It appeared, further, that the firm, by its letters, had instructed the defendant to make a settlement of this bill and collect the same.

As to the seventh count, there was evidence that Joseph Doherty, by a note due April 8, 1879, had settled his bill of goods sold on behalf of the firm by the defendant at Boston, which note the firm had put into a bank for collection, and the same remained unpaid; that on May 30, 1879, they forwarded the note to the defendant, with instructions to collect it, and wrote several letters between that date and July 23, 1879, calling upon the defendant to return the note and make a report thereon, to which no answers were ever given; that Doherty, on April 25, 1879, paid the defendant, in bank-bills, silver, and, possibly, a small check, the amount of said note, taking a receipt therefor, signed by the defendant as agent of said firm; and that this payment was never remitted to said firm.

As to the tenth count, there was evidence that the defendant, on July 9, 1879, was paid by Austin Cannon, in bank-bills, the sum alleged in that count, for goods sold on behalf of said firm, by the defendant, at Boston; and that this sum was never paid over to the firm.

As to the twelfth and fifteenth counts, there was evidence that John J. McCormick and Daniel Shea, in July 1879, severally paid to the defendant, by their checks to his order, the several amounts in those counts, in settlement for bills of goods sold to them, on behalf of said firm, by the defendant, at Boston, and took receipts therefor, signed "D. Smith, for J. W. Gaff & Co.;" and that these collections were never received by the said firm.

Upon the tenth, twelfth, and fifteenth counts no special order had been given to the defendant to collect.

The government introduced evidence, that about July 30, 1879, the defendant left Boston, abstracting from his safe his journal, ledger, and a book kept in accordance with rules of the United States Internal Revenue, wherein all sales of liquors and the serial numbers of the barrels were required to be entered; that afterwards he was traced to Leadville, Colorado, where he was living under the name of Williams, and was arrested; that he subsequently admitted that he had destroyed his books, had lost ten or twelve thousand dollars in gambling, was sorry for what he had done, and, if he should be imprisoned for five years, would do all in his power to make restitution to the firm.

The defendant put in checks upon the First National Bank and Columbian National Bank, both of Boston, for various sums amounting in all to...