Boston & Worcester Railroad v. Dana

67 Mass. 83

Opinion

Bigelow, J.

The main objection, raised by the defendant in the present case, which, if well maintained, is fatal to the plaintiffs’ action, presents an interesting and important question, hitherto undetermined by any authoritative judgment in the courts of this commonwealth.

The plaintiffs seek to recover in an action of assumpsit a large sum of money alleged by them to have been fraudulently abstracted jrorn their ticket office by the defendant, while he was in then employment as depot-master, having charge of their principal railway station in Boston. In regard to this item of the plaintiffs’ claim, the defendant contended at the trial, and requested the judge who presided to instruct the jury, that the plaintiffs were not entitled to recover in this action the money thus taken by the defendant, because their cause of action, if any they had, was suspended, until an indictment had been found or complaint made against the defendant for larceny. This request was refused, and the jury were instructed, that if the defendant had fraudulently taken and appropriated the plaintiffs’ money in the manner alleged, and was thereby guilty of larceny, he would be liable in the present action, although no criminal prosecution had first been instituted therefor. It is upon the correctness of this instruction that the first and main question in the case arises.

The doctrine, that all civil remedies in favor of a party injured by a felony are, as it is said in the earlier authorities, merged in the higher offence against society and public justice, or, according to more recent eases, suspended until after the termination of a criminal prosecution against the offender, is the well settled rule of law in England at this day, and seems to have had its origin there at a period long anterior to the settlement of this country by our English ancestors. Markham v. Cob, Latch, 144, and Noy, 82. Dawkes v. Coveneigh, Style, 346. Cooper v. Witham, 1 Sid. 375, and 1 Lev. 247. Crosby v. Leng, 12 East, 413. White v. Spettigue, 13 M. & W. 603. 1 Chit. Crim. Law, 5.

But although thus recognized and established as a rule of law in the parent country, it does not appear to have been, in the language of our constitution, “ adopted, used and approved in the province, colony or state of Massachusetts Bay, and usually practised on in the courts of law.” The only recorded trace of its recognition in this commonwealth is found in a note to the case of Higgins v. Butcher, Yelv. (Amer. ed.) 90 a, note 2, by which it appears to have been adopted in a case at nisi prius by the late Chief Justice Bewail. The opinion of that learned judge, thus expressed, would certainly be entitled to very great weight, if it were not for the opinion of this court in Boardman v. Gore, 15 Mass. 338, in which it is strongly intimated, though not distinctly decided, that the rule had never been recognized in this state, and had no solid foundation, under our laws, in wisdom or sound policy. Under these circumstances, we feel at liberty to regard its adoption or rejection as an open question, to be determined, not so much by authority, as by a consideration of the origin of the rule, the reasons on which it is founded, and its adaptation to our system of jurisprudence.

The source, whence the doctrine took its rise in England, is well known. By the ancient common law, felony was punished by the death of the criminal, and the forfeiture of all his lands and goods to the crown. Inasmuch as an action at law against a person, whose body could not be taken in execution and whose property and effects belonged to the king, would be a useless and fruitless remedy, it was held to be merged in the public offence. Besides; no such remedy in favor of the citizen could be allowed without a direct interference with the royal prerogative. Therefore a party injured by a felony could originally obtain no recompense out of the estate of a felon, nor even the restitution of his own property, except after a conviction of the offender, by a proceeding called an appeal of felony, which was long disused, and wholly abolished by St. 59 Geo. 3, c. 46; or under St. 21 H. 8, c. 11, by which the judges were empowered to grant writs of restitution, if the felon was convicted on the evidence of the party injured or of others by his procurement. 2 Car. & P. 43, note. But these incidents of felony, if they ever existed in this state, were discontinued at a very early period in our colonial history. Forfeiture of lands or goods, on conviction of crime, was rarely, if ever, exacted here; and in many cases, deemed in England to be felonies and punishable with death, a much milder penalty was inflicted by our laws. Consequently the remedies, to which a party injured was entitled in eases of felony, were never introduced into our jurisprudence. No one has ever heard of an appeal of felony, or a writ of restitution under St. 21 H. 8, c. 11, in our courts. So far therefore as we know the origin of the rule and the reasons on which it was founded, it would seem very clear that it was never adopted here as part of our common law.

Without regard however to the causes which originated the doctrine, it has been urged with great force and by high authority, that the rule now rests on public policy; 12 East, 413, 414; that the interests of society require, in order to secure the effectual prosecutions of offenders by persons injured, that they should not be permitted to redress their private wrongs, until public justice has been first satisfied by the conviction of felons ; that in this way a strong incentive is furnished to the individual to discharge a public duty, by bringing his private interest in aid of its performance, which would be wholly lost, if he were allowed to pursue his remedy before the prosecution and termination of a criminal proceeding. This argument is doubtless éntitled to great weight in England, where the mode of prosecuting criminal offences is very different from that adopted with us. It is there the especial duty of every one, against whose person or property a crime has been committed, to trace out the offender, and prosecute him to conviction. In the discharge of this duty, he is often compelled to employ counsel; procure an indictment to be drawn and laid before the grand jury, with the evidence in its support; and if a bill is found, to see that the case on the part of the prosecution is properly conducted before the jury of trials. All this is to be done by the prosecutor at his own cost, unless the court, after the trial, shall deem reimbursement reasonable. 1 Chit. Crim. Law, 9, 825. The whole system of the administration of criminal justice in England is thus made to depend very much upon the vigilance and efforts of private individuals. There is no public officer, appointed by law in each county, as in this commonwealth, to act in behalf of the government in such cases, and take charge of the prosecution, trial and conviction of offenders against the laws. It is quite obvious that, to render such a system efficacious, it is essential to use means to secure the aid and cooperation of those injured by the commission of crimes, which are not requisite with us. It is to this cause, that the rule in question, as well as many other legal enactments, designed to enforce upon individuals the duty of prosecuting offences, owes its existence in England. But it is hardly possible, under our laws, that any grave offence of the class designated as felonies can escape detection and punishment. The officers of the law, whose province it is to prosecute criminals, require no assistance from persons injured, other than that which a sense of duty, unaided by private interest, would naturally prompt.

On the other hand, in the absence of any reasons, founded on public policy, requiring the recognition of the rule, the expediency of its adoption may well be doubted. If a party is compelled to await the determination of a criminal prosecution before he is permitted to seek his private redress, he certainly has a strong motive to stifle the prosecution and compound with the felon. Nor can it contribute to the purity of the administration of justice, or tend to promote private morality, to suffer a party to set up and maintain in a court of law a defence founded solely upon his own criminal act. The right of every citizen, under our constitution, to obtain justice promptly and without delay, requires that no one should be delayed in obtaining a remedy for a private injury, except in a case of the plainest public necessity. There being no such necessity calling for the adoption of the rule under consideration, we are of opinion that it ought not to be engrafted into our jurisprudence.

We are strengthened in this conclusion by the weight of American authority, and by the fact that in some of the states, where the rule had been established by decisions of the courts, it has been abrogated by legislative enactments. Pettingill v. Rideout, 6 N. H. 454. Cross v. Guthery, 2 Root, 90. Piscataqua Bank v. Turnley, 1 Miles, 312. Foster v. Commonwealth, 8 W. & S. 77. Patton v. Freeman, Coxe, 113. Hepburn’s case, 3 Bland, 114. Allison v. Farmers’ Bank of Virginia, 6 Rand. 223. White v. Fort, 3 Hawks, 251. Robinson v. Culp, 1 Const. Rep. 231. Story v. Hammond, 4 Ohio, 376. Ballew v. Alexander, 6 Humph. 433. Blassingame v. Glaves, 6 B. Monr. 38. Rev. Sts. of N. Y. Part. 3, c. 4, § 2. St. of Maine of 1844, c. 102.

2. The remaining objections raised at the trial may be briefly disposed of. First in order is the objection, that the plaintiffs, having in their specification of claim set out only a demand for proceeds of tickets sold, cannot recover under it for money taken and abstracted by the defendant from their ticket office. This objection might have been entitled to great weight, if it had been seasonably raised. But after the defendant had introduced evidence to rebut the claim of the plaintiffs in this particular, and the whole testimony in the case had been closed, it was quite too late to object on such grounds. The defendant was not taken by surprise by the nature of the claim, or the evidence offered in its support, but had endeavored to meet it fully by proof. Nor is it true, as was urged by the defendant, that the judgment -in the present case would not be a bar to another suit in favor of the plaintiffs to recover on a similar claim for money abstracted by the defendant. The rule is familiar and well settled, that in such a case parol proof is admissible to show the precise nature of the claim adjudicated in a former suit, Eastman v. Cooper, 15 Pick. 285, 286. But if it were not so, the defect in the specification would constitute no valid objection to a recovery by the plaintiffs for the money abstracted by the defendant. The count for money had and received was a declaration under which such recovery might be had; and there having been no surprise on the defendant, the defect in the specification was only a matter of form, not affecting the merits of the case, and so within the statutes requiring the allowance of amendments of formal defects, even after verdict. Rev. Sts. c. 100, §§ 31, 22. St. 1839, c. 151, § 1.

3. The next objection proceeds on a misconception of the in struction given by the court. The claim made by the plaintiffs in the sixth and seventh items of their specification was for tickets, belonging to them, sold by the defendant, and for which he received the proceeds. The instruction was not that the mere fact of sales of tickets by the defendant, without proof as to their ownership, threw on him the burden of accounting to the plaintiffs therefor. The question whether the tickets thus sold had first been purchased by the defendant and paid for by him to the plaintiffs, or whether they had been furtively taken by him and sold without the knowledge of the plaintiffs, and were therefore the property of the plaintiffs, when sold, was submitted to the jury; and the instruction given was, that if they found them to have been the plaintiffs’ tickets, the defendant was bound to account to them for the proceeds when sold by him. In this view, the direction to the jury was clearly right.

4. The next objection presents a more important question, and, if it were now for the first time brought before us for adjudication, would require deliberate and careful examination. But it appears to us, that the question has been determined in a recent decision of this court. Commonwealth v. Montgomery, 11 Met. 534. The plaintiffs offered evidence tending to show that the defendant, at the time of entering the plaintiffs.’ service, was insolvent, and that he had since received only a limited salary and some small extra compensation; and that subsequent to the time of his alleged misdoings, and during the period specified in the writ, he was the owner of large property, far exceeding the aggregate of all his salary and receipts, while in the service of. the plaintiffs. This evidence was objected to by the defendant, but was admitted for a single and limited purpose as having some tendency to prove, if the jury were satisfied from other and independent sources of proof, that money had been fraudulently abstracted from the plaintiffs by some one in their employment, that the defendant was the guilty party. The instruction to the jury on this point was carefully guarded, and their attention was particularly drawn to the precise bearing of the evidence. It appears to us, that this evidence was competent, not on the ground, as the defendant supposes, of its being proof of possession of stolen property, but upon the broader and more general principle of being a material and relevant fact to the point in issue before the jury. The defendant had held an office of trust under the plaintiffs for a series of years. During this time he possessed their entire confidence, and had means of access to the places where then: tickets were deposited and their money kept. The allegation on the part of the plaintiffs was that during this entire period he violated then confidence by clandestine sales of tickets, for which he never accounted, and by abstractions of money from then ticket offices. To establish these facts, we think it was competent for them to prove the conduct of the defendant during the time he was in their employment, his habits of life and his pecuniary condition and resources, as having a direct bearing on the inquiry before the jury. They were in the nature of res gestee, accompanying the very acts and transactions of the defendant under investigation, and tending to give them character and significance. In this view, the case at bar presents much stronger reasons for the admission of the evidence than the case, before cited, of Commonwealth v. Montgomery. In that case, the possession of a large amount of money, several weeks after the alleged criminal act, not identified as the stolen property, in connection with the previous poverty of the defendant, was admitted as tending to prove a single act of larceny. The present case is widely different in its circumstances, and the testimony had a more direct bearing on the issue. The charge against the defendant was in the nature of a charge of embezzlement, extending over a period of more than two years, not susceptible in its nature of direct proof, but to be established mainly by circumstantial evidence. The testimony was therefore directly connected with the alleged fraudulent acts, and tended to prove the possession of money and other property by the defendant at the very time of their supposed commission. This evidence, unexplained, had a direct tendency to implicate the defendant. The argument so strenuously urged by the defendant, that the admission of such evidence imposed a burden on the defendant of proving negotiations and transactions during a long period of time, which it was difficult, if not impossible, to discharge, bears very strongly on the weight of the evidence, and might well have been urged upon the consideration of the jury; but it does not in our judgment at all affect its competency.

5. The declarations of the defendant, made in the absence of the plaintiffs’ agents, to third persons, concerning his property and business transactions, were rightly rejected on the familiar principle, that the declarations of a party in. his own favor, in the absence of the adverse party, are incompetent. It was open to the defendant to prove any facts bearing on his property and the mode of its acquisition, but not to introduce his own naked, unsupported declarations on the subject.

6. The objection founded on the admission of the evidence of Moore is also untenable. It was not offered nor admitted for the purpose of affecting the defendant in any way; but simply to repel an imputation on the character of one of the plaintiffs’ witnesses, by which the defendant sought to impeach him, and' after a refusal to disclaim such impeachment. In the peculiar posture of the case on this point, and under the limitations and guards with which it was admitted, and submitted to the jury, we think the evidence was rightly received. The abstractions of money from the plaintiffs’ ticket office, having been, during the entire time, effected by a peculiar mode of operation and by the use of devices of a similar character, and this having been done before Fowle, the witness, was in the employment of the plaintiffs, or had any means or opportunities of access to the office of the plaintiffs, tended to show that he was not the guilty party, and was not liable to the imputation which the defendant sought to fasten on him, although they had no tendency to prove that the defendant was liable in this action.

7. The defendant further objects, that schedules, made from the original papers and documents previously proved in the case, showing certain data and results obtained therefrom, and verified by the witness by whom they were prepared, were improperly admitted. But it appears to us, that questions of this sort must necessarily be left very much to the discretion of the judge who presides at the trial. It would doubtless be inexpedient in most cases to permit ex parte statements of facts or figures to be prepared and submitted to the jury. It should only-be done where books and documents are multifarious and voluminous, and of a character to render it difficult for the jury to comprehend material facts without the aid of such statements, and even in such cases they should not be admitted, unless verified by persons who have prepared them from the originals in proof, and who testify to their accuracy, and after ample time has been given to the adverse party to examine them and test their correctness. Such was the course pursued in the present case, and there can be no doubt that, in a trial embracing so many details and occupying so great a length of time as the case at bar, during which a great mass of books and documents were put in evidence, it was the only mode of attaining to an intelligible view of the cause before the jury.

8, 9. The next objection urged by the defendant is, that the statements of Ellis, made in the presence of the defendant, were admitted in evidence. But it appears to us that, on the facts stated in the report, they were competent, as tending to prove admissions by the defendant. They stand on the familiar principle, that what was said to a party, together with his replies thereto, or his silent acquiescence in statements, affecting his own interest, to which he has opportunity of replying, are admissible in evidence against him. In this view, the declarations of Ellis, subsequently made, when the defendant was not present, were clearly incompetent. 'The veracity of Ellis was not drawn in question. The point to be proved was the admissions of the defendant. These could not be controlled or contradicted by the statements of Ellis subsequently made to third parties.

10. The rejection of evidence, tending to impeach the accu racy of the plaintiffs’ cashier, was, under the circumstances, a matter of discretion with the judge who presided at the trial, and forms no sufficient ground for setting aside the verdict. It presents only a question affecting the order of the trial and good faith on the part of counsel in the conduct of a case, and not a question of right which a party can ask to have revised on a motion for a new trial.

11. The only remaining question arises on the motion for a new trial founded on the alleged misconduct of the jury in malting up their verdict. Without considering the, question, whether the matter stated in the affidavit of one of the jurors, if properly proved, would be deemed sufficient cause for invalidating a verdict and granting a new trial, it is only necessary to say, that there is no competent evidence offered to sustain the motion in the present case. It has been often determined in this court, that the affidavits of jurors cannot be received for the purpose of proving misconduct in the jury room. Dorr v. Fenno, 12 Pick. 525. Murdock v. Sumner, 22 Pick. 156. Folsom v. Manchester, Middlesex, October term 1853.

Judgment on the verdict.