Commonwealth v. Shepard

83 Mass. 575

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1861
• Status: Published

Opinion

Bigelow, C. J.

1. Evidence of another act of embezzlement by the defendant, during the same week in which that charged in the second count of the indictment was alleged to have been committed, was competent only for the single purpose of proving a guilty intent in the mind of the defendant in the commission of the principal act. It is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those charged against him, and for which he is on trial, but also because it may lead the jury to violate the great principle, that a party is not to be convicted of one crime by proof that he is guilty of another. For this reason, it is essential to the rights of the accused that, when such evidence is admitted, it should be carefully limited and guarded by instructions to the jury, so that its operation and effect may be confined to the single legitimate purpose for which it is competent. Roscoe Crim. Ev. 90, 94. Rex v. Ball, Russ. & Ry. 132. Commonwealth v. Eastman, 1 Cush. 189, 216. In the present case, there is nothing in the report which shows that any specific instructions were given on this point. # For aught that appears, this evidence was admitted as general proof of the guilt of the defendant, and the jury were left to draw such inferences from it as they might think proper. If this case came before us upon a bill of exceptions, in which, according to our practice, the party aggrieved is bound to make it appear that the rulings and instructions of the court were erroneous, we might presume that correct and appropriate instructions were given to enable the jury to make a proper application of this evidence. But such a presumption cannot be made against a defendant in a criminal case, where the judge who tried the cause, in the exercise of his judicial discretion, has deemed it proper to present the questions of law in the form of a report. On the contrary, the fair inference is that, in such case, nothing is omitted by him which could in any way have been material in its bearing on the validity of the objection taken to the ruling of the court.

2. The more important question presented by the report is, whether the evidence was sufficient in law to support a conviction of the defendant upon the second count in the indictment. The manner in which the case is reported for our consideration is not favorable to a clear and correct apprehension of the facts to which it is our duty to apply the legal principles on which the decision of this part of the case must turn. A full and careful statement of the evidence, in its bearing on the points in issue, would have presented the question in a much more intelligible form; but a loose and disconnected detail of the facts proved, which cannot be understood without reference to long schedules of figures and an inspection of numerous and complicated accounts, affords a very inadequate and imperfect view of the case, and renders it difficult to determine with accuracy the question of law which it is the object of the report to present for our adjudication. Perhaps this difficulty is attributable to the nature of the evidence adduced at the trial. We have referred to it, in order to account for any obscurity which may arise in stating the conclusion to which we have arrived on this part of the case.

The defendant was convicted only on the second count in the indictment. By it he was charged, under St. 1846, c. 171, § 1, with the offence of fraudulently taking and secreting, with ntent to convert to his own use, certain bank-bills of the amount of one hundred dollars, and certain gold coins of the same amount, a description of which was unknown to the grand jury. It is obvious that this was intended as a charge of fraudulently taking and secreting certain specific bills and coins, being a particular, designated amount or sum of money belonging to and in the possession of the bank ; and was not meant to be a general allegation of taking money of the bank with a fraudulent intent, authorized by the second section of the act above cited, under which any taking with such intent, committed within six months after the time alleged in the indictment, might be proved. It was treated at the trial as a charge of taking and secreting a specific sum. The proof offered by the government tended to show that the sum of $200 was deposited in the bank by one John Woods, on the 9th day of April 1857; $100 of it being in bank-bills, and $100 in gold coin. It was this sum which the government sought to prove was fraudulently taken and secreted by the defendant.

It is unnecessary, in the present case, to define with accuracy the precise distinction between a fraudulent conversion of money and a fraudulent taking and secretion with intent to convert it, which are the two offences against which the penalties of St. 1846, c. 171, are aimed. The second count in the indictment, on which the defendant was convicted, sets out the latter offence. It was therefore necessary to prove a fraudulent taking of the specific money, as well as a secretion by the defendant with intent to convert it to his own use. The main evidence connected with the principal transaction, on which the government relied to obtain a conviction, was an alteration in the entries made in the books of the bank in relation to this deposit of money by Woods. Upon this point it was proved that the sum deposited was received by Shepard, and was entered by him in the proper book, called the “ old waste,” in regular form, showing that it was deposited by John Woods. This entry ivas probably made on the 9th of April, the same day on which the money was received. It appeared on a careful scrutiny that this entry had been subsequently erased, the word “ Nobody ” being written in place of the name of “John Woods,” and three ciphers instead of the figures “ 200,” over these erasures. It was also ascertained by the jury, on inspecting this book, after they had retired to deliberate on their verdict, that the footing of the column of figures, in which the 200 was originally entered, had also been altered by an erasure from 1234 to 1034, so as to make the footing correspond with the other alterations by which 200 had been taken out of the figures which made up the sum total. There was evidence which tended very strongly to show that the words and figures thus altered were in the handwriting of the defendant. It also was proved that on the page of the ledger on which the account of John Woods was posted, the sum of $200 was there carried to his credit in the defendant’s handwriting, as a deposit made on the 8th day of February 1857, instead of on the 9th day of April following, when it was in fact made. These facts, standing by themselves, in the absence of any explanation, and without a critical examination of the dates of the entries, would certainly go very far to support the allegation in the second count of the indictment, because the fraudulent taking, which is an essential ingredient in the crime of embezzlement, may always be shown by subsequent circumstances, especially by proof of false entries relating to the money alleged to be taken in the regular books of account kept by the defendant in behalf of his principal or employer. But, on looking carefully at these entries and erasures, and comparing them with other contemporaneous entries, the correctness of which is not drawn in question, it will be found that the inferences to be drawn from them do not necessarily and directly tend to prove the specific offence charged on the defendant. In the first place, it is clear that the defendant did not fraudulently take the money deposited by Woods at the time he received it. He was the officer of the bank whose proper duty it was to take money from depositors, and his reception of it was prima facie rightful. He duly entered it in the book of the bank, as so much money deposited in the regular course of business. So far he did his exact duty, and the case shows no fact from which the inference of any fraudulent intent concerning this money can be drawn, at or immediately after its receipt. In the next place, there is no proof of any wrongful act or fraudulent conduct on the part of the defendant, in relation to this transaction, until the making of the false entries and erasures in the books which have been already described. It therefore becomes material to ascertain, if possible, when they were made. An inspection of other entries on the same page of the “ old waste ” with that which contains these alterations, taken in connection with the weekly statement of the condition of the bank made on the l‘5th of April by the defendant, clearly shows that they were not made until five days after the deposit of the money by Woods — that is, on the 14th day of April. The course of business of the bank was to make up weekly accounts of its condition. To effect this, it was necessary that the sums deposited, as entered on the “ old waste,” should be added up at the end of each business week, in order to be carried into the general statement. Such addi tian was made of the sums deposited during the week ending on the 14th day of April, including that deposited by Woods; and it must have been made at the end of this week, because, in order to obtain the sum total of 1234 as originally written before the erasure, it is necessary to include all the deposits received up to the end of the business week. The alterations must therefore have been made after all the deposits of that week had been received and entered ; certainly as late as the fourteenth day of the month. It is equally clear that it was made before the weekly statement of the condition of the bank was prepared on the 15th of April, because the sum total of deposits entered in the “ old waste ” is carried into the statement at the reduced amount of 1034, at which it stood after the erasures. Here then was an interval of five days, during which the money received from Woods appeared duly entered on the books of the bank, and there was no act indicating any fraudulent intent on the part of the defendant respecting it. Nor is there any proof whatever that the money itself was not put with the other funds of the bank, and used in paying depositors, making investments, or otherwise appropriated in the regular course of business. This state of the evidence leaves great room for reasonable doubt, whether the erasures relied on as proof of the fraudulent taking of this specific sum are not equally consistent with the belief that they were made, not to conceal the fraudulent taking of the money deposited by Woods, but for the purpose of concealing a previous defalcation, or some prior act of embezzlement. This doubt is greatly strengthened when it is considered that there is no evidence of any deficiency in the money belonging to the bank occurring during the week when this transaction took place, nor of any abstraction of funds which can be traced to this particular point of time. On the contrary, an examination of the receipts, disbursements and appropriations by the defendant in behalf of the bank, in connection with the amount deposited by him in other banks in which he was accustomed to keep the moneys received by him, from the 8th to the 21st of April, tends to show that he did not take this specific sum of money out of the funds belonging to the bank, but that it was included with other moneys received by him, and went to make up the general balance of money which was passed to his credit in the banks, where, with the knowledge and assent of the directors of the savings bank for which he acted, he deposited from day to day his current receipts, and paid out by checks his necessary disbursements. The legitimate inference from this is, not that he took the money deposited by Woods with any fraudulent intent to convert it to his own use, but that he received it rightfully, entered it properly in the books, and put it with other moneys belonging to the bank, so that it went to their use; and that five days afterwards he altered the entries in the books, in order to conceal the fact that he had received this sum, and thereby to cover up some previous deficit occasioned by former dishonest and fraudulent acts. We are therefore of opinion that the evidence was not sufficient to support the second count in the indictment. The government were bound to prove the exact offence as it was charged in that count. Doubtless there was proof that the defendant had been guilty of making false entries in his books, and perhaps evidence which tended to show previous acts of embezzlement, But he was not convicted on any count in the indictment which charged such offences. Looking at the case, as we are bound to do, without any reference to the supposed culpability of the defendant in other respects, but as a question of the proper application of the facts proved to the crime charged, and with a single eye to the firm and impartial administration of the law, we are compelled to say that there was no adequate proof that the specific sum of $200, as charged in the second count, was fraudulently taken by the defendant, and that on this ground the verdict of the jury was erroneous.

Verdict set aside.