Commonwealth v. Barry

124 Mass. 325, 1878 Mass. LEXIS 310

• Court: Massachusetts Supreme Judicial Court
• Decided: April 1, 1878
• Status: Published

Opinion

Lord, J.

The principles upon which the decision of this case rests are too well settled and too familiar to justify a citation of authorities.

If a person honestly receives the possession of the goods, chattels or money of another upon any trust, express or implied, and, after receiving them, fraudulently converts them to his own use, he may be guilty of the crime of embezzlement, but cannot be of that of larceny, except as embezzlement is by statute made larceny. If the possession of such property is obtained by fraud, and the owner of it intends to part with his title as well as his possession, the offence is that of obtaining property by false pretences, provided the means by which they are acquired are such as, in law, are false pretences. If the possession is fraudulently obtained, with intent on the part of the person obtaining it, at the time he receives it, to convert the same to his own use, and the person parting with it intends to part with his possession merely, and not with • his title to the property, the offence is larceny.

Upon the facts of this case, the jury might well find that the property was obtained by the defendant as stated in the last of these propositions; and the defendant has no cause to complain of the refusal to rule as requested, or of the instructions given.

Exceptions overruled.