Holmes, J.
This is a complaint for embezzlement of money. The case for the government is as follows. The defendant was employed by one Sullivan to sell liquor for him in his store. Sullivan sent two detectives to the store, with marked money of Sullivan’s, to make a feigned purchase from the defendant. One [527]*527detective did so. The defendant dropped the money into the money drawer of a cash register, which happened to be open in connection with another sale made and registered by the defendant, but he did not register this sale, as was customary, and afterward — it would seem within, a minute or two — he took the money from the drawer. The question presented is whether it appears, as matter of law, that the defendant was not guilty of embezzlement, but was guilty of larceny, if of anything. The defendant asked rulings to that effect on two grounds: first, that after the money was put into the drawer it was in Sullivan’s possession, and therefore the removal of it was a trespass and larceny; and secondly, that Sullivan’s ownership of the money, in some way not fully explained, prevented the offence from being embezzlement. We will consider these positions successively.
We must take it as settled that it is not larceny for a servant to convert property delivered to him by a third person for his master, provided he does so before the goods have reached their destination, or something more has happened to reduce him to a mere custodian ; Commonwealth v. King, 9 Cush. 284; while, on the other hand, if the property is delivered to the servant by his master, the conversion is larceny. Commonwealth v. Berry, 99 Mass. 428. Commonwealth v. Davis, 104 Mass. 548.
This distinction is not very satisfactory, but it is due to historical accidents in the development of the criminal law, coupled, perhaps, with an unwillingness on the part of the judges to enlarge the limits of a capital offence. 2 Leach, (4th ed.) 843, 848, note; 1 Leach, (4th ed.) 35, note; 2 East, P. C. 568, 571.
The history of it is this. There was no felony when a man received possession of goods from the owner without violence. Glanv., bk. 10, c. 13. Y. B. 13 Edw. IV. 9, pl. 5. 3 Co. Inst. 107. The early judges did not always distinguish clearly in their language between the delivery of possession to a bailee and the giving of custody to a servant, which indeed later judges some times have failed to do. E. g. Littleton in Y. B. 2 Edw. IV. 15, pl. 7. 3 Hen. VII. 12, pl. 9. Ward v. Macauley, 4 T. R. 489, 490. When the peculiar law of master and servant was applied either to the master’s responsibility or to his possession, the test seems to have been whether or not the servant was under the master’s eye, rather than based on the notion [528]*528of status and identity of person, as it was at a later day. See Byington v. Simpson, 184 Mass. 169,170. Within his house a master might be answerable for the torts of his servant, and might have possession of goods in his servant’s custody, although he himself had put the goods into the servant’s hands; outside the house-there was more doubt; as when a master intrusted his horse to his servant to go to market. Y. B. 21 Hen. VII. 14, pl. 21. T. 24 Edw. III. Bristol, in Molloy, De Jure Maritimo, bk. 2, c. 3, § 16. Y. B. 2 Hen. IV. 18, pl. 6. 13 Edw. IV. 10, pl. 5; S. C. Bro. Abr. Corone, pl. 160. Staundforde, I., c. 15, fol. 25; c. 18, fol. 26. 1 Hale, P. C. 505, note. See Heydon & Smith’s case, 13 Co. Rep. 67, 69; Drope v. Theyar, Popham, 178, 179; Combs v. Bradley, 2 Salk. 613; and, further, 42 Ass. pl. 17, fol. 260; 42 Edw. III. 11, pl. 13; Ass. Jerus, (ed. 1690), cc. 205, 217. It was settled by St. 21 Hen. VIII. c. 7, that the conversion of goods delivered to a servant by his master was felony, and this statute has been thought to be only declaratory of the common law in later times, since the distinction between the possession of a bailee and the custody of a servant has been developed more fully, on the ground that the custody of the servant is the possession of the master. 2 East, P. C. 564, 565. The King v. Wilkins, 1 Leach, (4th ed.) 520, 523. See Kelyng, 35; Fitzh. Nat. Brev. 91 E; Blosse’s case, Moore, 248 ; S. C. Owen, 52, and Gouldsb. 72. But probably when the act was passed it confirmed the above mentioned doubt as to the master’s possession where the servant was intrusted with property at a distance from his master’s house in cases outside the statute, that is, when the chattels were delivered by a third person. In Dyer, 5a, 56, it was said that it was not within the statute if an apprentice ran off with the money received from a third person for his master’s goods at a fair, because he had it not by the delivery of his master. This, very likely, was correct, because the statute only dealt with delivery by the master; but the case was taken before long as authority for the broader proposition that the act is not a felony, and the reason was invented to account for it that the servant has possession, because the money is delivered to him. 1 Hale, P. C. 667, 668. This phrase about delivery seems to have been used first in an attempt to distinguish between servants and bailees; Y. B. 13, Edw. IV. 10, pl. 5; Moore, 248; but as used here it is a pen[529]*529verted remnant of the old and now exploded notion that a servant away from his master’s house always has possession. The old case of the servant converting a horse with which his master had intrusted him to go to market was stated and explained in the same way, on the ground that the horse was delivered to the servant. Crompton, Just. 355, pl. 7. See The King v. Bass, 1 Leach, (4th ed.) 251. Yet the emptiness of the explanation was shown by the fact that it still was held felony when the master delivered property for service in his own house. Kelyng, 35. The last step was for the principle thus qualified and explained to be applied to a delivery by a third person to a servant in his master’s shop, although it is possible at least that the case would have been decided differently in the time of the Year Books; Y. B. 2 Edw. IV. 15, pl. 7; Fitzh. Nat. Brev. 91 E; and although it is questionable whether on sound theory the possession is not as much in the master as if he had delivered the property himself. Rex v. Dingley (1687), stated in The King v. Bazeley, 2 Leach, (4th ed.) 835, 841, and in The King v. Meeres, 1 Show. 50, 53. Waite’s case (1743), 2 East, P. C. 570; S. C. 1 Leach, (4th ed.) 28, 35, note. Bull’s case, stated in The King v. Bazeley, 2 Leach, (4th ed.) 835, 841; S. C. 2 East, P. C. 571, 572. The King v. Bazeley, ubi supra ; Regina v. Masters, 1 Den. C. C. 332. Regina v. Reed, Dears. C. C. 257, 261, 262.
The last mentioned decisions made it necessary to consider with care what more was necessary, and what was sufficient, to reduce the servant to the position of a mere custodian. An obvious case was when the property.was finally deposited in the place of deposit provided by the master, and subject to his control, although there was some nice discussion as to what constituted such a place. Regina v. Reed, Dears. C. C. 257. No doubt a final deposit of money in the till of a shop would have the effect. Waite’s case, 2 East, P. C. 570, 571; S. C. 1 Leach, (4th ed.) 28, 35, note. Bull’s case, 2 East, P. C. 572; S. C. 2 Leach, (4th ed.) 841, 842. The King v. Bazeley, 2
Free access — add to your briefcase to read the full text and ask questions with AI
Holmes, J.
This is a complaint for embezzlement of money. The case for the government is as follows. The defendant was employed by one Sullivan to sell liquor for him in his store. Sullivan sent two detectives to the store, with marked money of Sullivan’s, to make a feigned purchase from the defendant. One [527]*527detective did so. The defendant dropped the money into the money drawer of a cash register, which happened to be open in connection with another sale made and registered by the defendant, but he did not register this sale, as was customary, and afterward — it would seem within, a minute or two — he took the money from the drawer. The question presented is whether it appears, as matter of law, that the defendant was not guilty of embezzlement, but was guilty of larceny, if of anything. The defendant asked rulings to that effect on two grounds: first, that after the money was put into the drawer it was in Sullivan’s possession, and therefore the removal of it was a trespass and larceny; and secondly, that Sullivan’s ownership of the money, in some way not fully explained, prevented the offence from being embezzlement. We will consider these positions successively.
We must take it as settled that it is not larceny for a servant to convert property delivered to him by a third person for his master, provided he does so before the goods have reached their destination, or something more has happened to reduce him to a mere custodian ; Commonwealth v. King, 9 Cush. 284; while, on the other hand, if the property is delivered to the servant by his master, the conversion is larceny. Commonwealth v. Berry, 99 Mass. 428. Commonwealth v. Davis, 104 Mass. 548.
This distinction is not very satisfactory, but it is due to historical accidents in the development of the criminal law, coupled, perhaps, with an unwillingness on the part of the judges to enlarge the limits of a capital offence. 2 Leach, (4th ed.) 843, 848, note; 1 Leach, (4th ed.) 35, note; 2 East, P. C. 568, 571.
The history of it is this. There was no felony when a man received possession of goods from the owner without violence. Glanv., bk. 10, c. 13. Y. B. 13 Edw. IV. 9, pl. 5. 3 Co. Inst. 107. The early judges did not always distinguish clearly in their language between the delivery of possession to a bailee and the giving of custody to a servant, which indeed later judges some times have failed to do. E. g. Littleton in Y. B. 2 Edw. IV. 15, pl. 7. 3 Hen. VII. 12, pl. 9. Ward v. Macauley, 4 T. R. 489, 490. When the peculiar law of master and servant was applied either to the master’s responsibility or to his possession, the test seems to have been whether or not the servant was under the master’s eye, rather than based on the notion [528]*528of status and identity of person, as it was at a later day. See Byington v. Simpson, 184 Mass. 169,170. Within his house a master might be answerable for the torts of his servant, and might have possession of goods in his servant’s custody, although he himself had put the goods into the servant’s hands; outside the house-there was more doubt; as when a master intrusted his horse to his servant to go to market. Y. B. 21 Hen. VII. 14, pl. 21. T. 24 Edw. III. Bristol, in Molloy, De Jure Maritimo, bk. 2, c. 3, § 16. Y. B. 2 Hen. IV. 18, pl. 6. 13 Edw. IV. 10, pl. 5; S. C. Bro. Abr. Corone, pl. 160. Staundforde, I., c. 15, fol. 25; c. 18, fol. 26. 1 Hale, P. C. 505, note. See Heydon & Smith’s case, 13 Co. Rep. 67, 69; Drope v. Theyar, Popham, 178, 179; Combs v. Bradley, 2 Salk. 613; and, further, 42 Ass. pl. 17, fol. 260; 42 Edw. III. 11, pl. 13; Ass. Jerus, (ed. 1690), cc. 205, 217. It was settled by St. 21 Hen. VIII. c. 7, that the conversion of goods delivered to a servant by his master was felony, and this statute has been thought to be only declaratory of the common law in later times, since the distinction between the possession of a bailee and the custody of a servant has been developed more fully, on the ground that the custody of the servant is the possession of the master. 2 East, P. C. 564, 565. The King v. Wilkins, 1 Leach, (4th ed.) 520, 523. See Kelyng, 35; Fitzh. Nat. Brev. 91 E; Blosse’s case, Moore, 248 ; S. C. Owen, 52, and Gouldsb. 72. But probably when the act was passed it confirmed the above mentioned doubt as to the master’s possession where the servant was intrusted with property at a distance from his master’s house in cases outside the statute, that is, when the chattels were delivered by a third person. In Dyer, 5a, 56, it was said that it was not within the statute if an apprentice ran off with the money received from a third person for his master’s goods at a fair, because he had it not by the delivery of his master. This, very likely, was correct, because the statute only dealt with delivery by the master; but the case was taken before long as authority for the broader proposition that the act is not a felony, and the reason was invented to account for it that the servant has possession, because the money is delivered to him. 1 Hale, P. C. 667, 668. This phrase about delivery seems to have been used first in an attempt to distinguish between servants and bailees; Y. B. 13, Edw. IV. 10, pl. 5; Moore, 248; but as used here it is a pen[529]*529verted remnant of the old and now exploded notion that a servant away from his master’s house always has possession. The old case of the servant converting a horse with which his master had intrusted him to go to market was stated and explained in the same way, on the ground that the horse was delivered to the servant. Crompton, Just. 355, pl. 7. See The King v. Bass, 1 Leach, (4th ed.) 251. Yet the emptiness of the explanation was shown by the fact that it still was held felony when the master delivered property for service in his own house. Kelyng, 35. The last step was for the principle thus qualified and explained to be applied to a delivery by a third person to a servant in his master’s shop, although it is possible at least that the case would have been decided differently in the time of the Year Books; Y. B. 2 Edw. IV. 15, pl. 7; Fitzh. Nat. Brev. 91 E; and although it is questionable whether on sound theory the possession is not as much in the master as if he had delivered the property himself. Rex v. Dingley (1687), stated in The King v. Bazeley, 2 Leach, (4th ed.) 835, 841, and in The King v. Meeres, 1 Show. 50, 53. Waite’s case (1743), 2 East, P. C. 570; S. C. 1 Leach, (4th ed.) 28, 35, note. Bull’s case, stated in The King v. Bazeley, 2 Leach, (4th ed.) 835, 841; S. C. 2 East, P. C. 571, 572. The King v. Bazeley, ubi supra ; Regina v. Masters, 1 Den. C. C. 332. Regina v. Reed, Dears. C. C. 257, 261, 262.
The last mentioned decisions made it necessary to consider with care what more was necessary, and what was sufficient, to reduce the servant to the position of a mere custodian. An obvious case was when the property.was finally deposited in the place of deposit provided by the master, and subject to his control, although there was some nice discussion as to what constituted such a place. Regina v. Reed, Dears. C. C. 257. No doubt a final deposit of money in the till of a shop would have the effect. Waite’s case, 2 East, P. C. 570, 571; S. C. 1 Leach, (4th ed.) 28, 35, note. Bull’s case, 2 East, P. C. 572; S. C. 2 Leach, (4th ed.) 841, 842. The King v. Bazeley, 2 East, P. C. 571, 574; S. C. 2 Leach, (4th ed.) 835, 843, note. Regina v. Wright, Dears. & Bell, 431, 441. But it is plain that the mere physical presence of the money there for a moment is not conclusive while the servant is on the spot and has not lost his power over it: as, for instance, if the servant drops it, and instantly picks it up [530]*530again. Such cases are among the few in which the actual intent of the party is legally important; for, apart from other considerations, the character in which he exercises his control depends entirely upon himself. Sloan v. Merrill, 135 Mass. 17, 19. Jefferds v. Alvard, 151 Mass. 94, 95. Commonwealth v. Drew, 153 Mass. 588, 594.
It follows from what we have said, that the defendant’s first position cannot be maintained, and that the judge was right in charging the jury that, if the defendant before he placed the money in the drawer intended to appropriate it, and with that intent simply put it in the drawer for his own convenience in keeping it for himself, that would not make his appropriation of it just afterwards larceny. The distinction may be arbitrary, but, as it does not affect the defendant otherwise than by giving him an opportunity, whichever offence he was convicted of, to contend that he should have been convicted of the other, we have the less uneasiness in applying it.
With regard to the defendant’s second position, we see no ground for contending that the detective in his doings was a servant of Sullivan, or that he had not a true possession of the money, if that question were open, which it is not. The only question reserved by the exceptions is whether Sullivan’s ownership of the money prevented the defendant’s act from being embezzlement. It has been supposed to make a difference if the right of possession in the chattel converted by the servant has vested in the master previous to the delivery to the servant by the third person. 1 Eng. Crim. Law Com’rs Rep. (1834), 31, pl. 4. But this notion, if anything more than a defective statement of the decisions as to delivery into the master’s barge or cart, (Rex v. Walsh, 4 Taunt. 258, 266, and Regina v. Reed, ubi supra,) does not apply to a case like the present, which has been regarded as embezzlement in England for the last hundred years. Bull’s case, stated in The King v. Bazeley, 2 Leach, (4th ed.) 835, 841; S. C. 2 East, P. C. 571, 572. The King v. Whittingham, 2 Leach, (4th ed.) 912. The King v. Headge, 2 Leach, (4th ed.) 1033; S. C. Russ. & Ry. 160. Regina v. Gill, Dears. C. C. 289. If we were to depart from the English decisions, it would not be in the way of introducing further distinctions. See Commonwealth v. Bennett, 118 Mass. 443, 454.
Exceptions overruled.