Commonwealth v. Warner

• Decision Date: 29 June 1899
• Citation: 173 Mass. 541,54 N.E. 353
• Parties: COMMONWEALTH v. WARNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 541

54 N.E. 353

COMMONWEALTH v. WARNER.

Supreme Judicial Court of Massachusetts, Hampshire.

June 29, 1899

COUNSEL

J.C. Hammond, Dist. Atty., for the Commonwealth.

Brooks & Hamilton, for defendant.

OPINION

KNOWLTON J.

The motion to quash and dismiss the indictment was rightly overruled. The property alleged to have been embezzled and stolen by the defendant is described in each of the counts of the indictment on which the defendant was convicted as "a great quantity of money, to wit, the sum of five thousand dollars, of the property of the said Hampshire Savings Bank." It is contended that the indictment is insufficient because it fails to make an express statement of the value of the money. Ordinarily, in indictments for larceny and other similar offenses, the value of the property is stated in terms, out of abundant caution, as well when the property is money as when it is something else. But by Pub.St. c. 203, § 44, it is provided that in prosecutions like the present "it shall be sufficient to allege generally in the indictment an embezzlement, fraudulent conversion, or taking with such intent, of money to a certain amount, without specifying any particulars of such embezzlement," etc. This provision seems to imply that in this class of indictments the pleader may avail himself of the fact, of common knowledge, which is well recognized in law, that money has value. This section goes on to say that "it shall be sufficient to maintain the charge in the indictment, and shall not be deemed a variance if it is proved that any bullion, money, notes, bank note, check, draft, bill of exchange or other security for money of such person, bank, incorporated company co-partnership, city, town or county, of whatever amount, was fraudulently embezzled, converted or taken *** within said period of six months." This provision shows that the amount in value is immaterial in reference to conviction, and is therefore unimportant as a part of the description of the offense. In three cases of conviction of obtaining money by false pretenses the money obtained was described as the sum of a certain number of dollars (giving the number), although this question was not considered by the court. Com. v. Coe, 115 Mass. 481; Com. v Howe, 132 Mass. 250; Com. v. Dunleay, 153 Mass. 330, 26 N.E. 870. In Com. v. Hussey, 111 Mass. 432, it was said that in cases of notes current as money, "amount" and "value" are ordinarily synonymous terms. This section was intended to relieve the pleader from technical requirements not needed for the protection of the accused. It gives to a defendant no new information to add to the statement of the taking of a sum of money that it is of the value which the law puts upon it. We are of opinion that under the provisions of this section this allegation was sufficient.

This indictment is brought under Pub.St. c. 203, § 41, which treats as guilty of larceny any officer of an incorporated bank "who fraudulently converts to his own use *** any bullion, money, note, bill, or other security for money belonging to and in possession of such bank, *** whether intrusted with the custody thereof or not," etc. The indictment rightly contains an averment that the money was in the possession of the savings bank. This statute makes it immaterial whether the accused was intrusted with the custody thereof or not, and whether the offense, according to ordinary rules, would be deemed embezzlement or larceny. Com. v. Tenney, 97 Mass. 50, 57, 58. There was no material error in the averment that by virtue of his said office of treasurer he did "have, receive, and take into his possession a great quantity of money, to wit, the sum of five thousand dollars," etc. The words, "by virtue of his said office of treasurer" may be rejected as surplusage, for the statutory offense would be committed alike whether the money came rightfully into his possession by virtue of his office, and was then fraudulently converted, or whether it was feloniously taken from the vault of the bank for no other purpose than to steal it. It was therefore unnecessary to allege anything in regard to the defendant's personal possession or custody when the offense was committed, and it is of no consequence whether the averment is true or not.

Another question which arises upon the form of the indictment, and upon the defendant's request to direct a verdict in his favor, is whether the term "incorporated bank," in the statute referred to, applies to savings banks. This question has been argued by the district attorney, but not by the counsel for the defendant. The words "an incorporated bank" are broad and comprehensive. They have been held to apply to national banks incorporated under the statutes of the United States. Com. v. Barry, 116 Mass. 1; Com. v. Tenney, 97 Mass. 50. In Com. v. Shepard, 1 Allen, 575, they are assumed by this court to include a savings bank. The word "bank" is commonly used in referring to savings banks, as well in opinions of the courts as in conversation. McCarthy v. Institution, 159 Mass. 527, 34 N.E. 1073; Bank v. Flanders, 161 Mass. 335, 37 N.E. 307; Johnson v. Gerald, 169 Mass. 500, 48 N.E. 764. In the opinion in Com. v. Pratt, 137 Mass. 98, is a discussion indicating that savings banks are not included in the provisions of this section. But in that case the court was careful to say that it did not determine the question, and it put its decision on other grounds, Even in this opinion the savings bank under consideration is repeatedly referred to by no other designation than "the bank." In the General Statutes of Massachusetts the laws pertaining to savings banks are found with those governing banks of issue in chapter 57, which is entitled "Of Banks and Banking." The reasons for the legislation are as applicable to savings banks as to banks of issue. Notwithstanding this dictum in Com. v. Pratt, we are of opinion that the words "an incorporated bank" used in this section, apply to savings banks as well as to other banks.

In examining jurors the court rightly refused to put to them the third, fourth, and seventh interrogatories suggested by the defendant's counsel. The examination of jurors as to interest or bias beyond the inquiries expressly provided for by the statute is left to the discretion of the presiding judge. Com. v. Poisson, 157 Mass. 510, 32 N.E. 906; Com. v. Thompson, 159 Mass. 56, 33 N.E. 1111. Each of the questions which the judge declined to put in the present case related to matters about which the jurors could not be supposed to have knowledge.

The records to prove the organization of the bank were sufficiently proved, and were rightly admitted. So, also were the records to show that the defendant was the duly-elected treasurer of the bank. They were in the handwriting of the defendant, and, in addition to their official character, they were competent as his admission of the truth of the facts stated in them. That some of them were signed by him as secretary and others as clerk is immaterial. Until the enactment of St.1876, c. 203, the officer acting as clerk of a savings bank might be called "secretary" as properly as "clerk." Ordinarily, in the absence of an express provision of a statute, either name is proper for a recording officer. Mack v. Railroad Co., 172 Mass. 185, 51 N.E. 1076. In the records of this savings bank the recording officer is called the "secretary" up to the time of the meeting in May, 1898, and in the record of that meeting. Afterwards, in accordance with the change in the statute, made a little more than a year...