Commonwealth v. Gateley

126 Mass. 52, 1878 Mass. LEXIS 169

Opinion

Morton, J.

The indictment charges that Swasey embezzled treasury notes and national bank bills. The defendant contends that the evidence showed an embezzlement of a bank check, and therefore that there was a variance. But we are of opinion that the court properly left this question to the jury.

The evidence tended to show that Swasey had the right, in the course of his duty, to present the check at the bank, and draw the money upon it. There was no evidence that he made any use of the check except to draw the money upon it. The jury might well find, upon the evidence, that there was no misappropriation or conversion of the check, and that the embezzlement by Swasey of the property of his employers was not completed until after he had drawn the money from the bank.

Exceptions overruled.