Commonwealth v. Tuckerman

76 Mass. 173

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1857
• Status: Published

Opinion

Merrick, J.

The defendant was tried in the municipal court upon a charge of having committed the crime of larceny by the embezzlement of money which came into his possession and was under his care by virtue of his employment as the treasurer of the Eastern Railroad Company. This transaction consisted in the alleged fraudulent conversion of five thousand dollars belonging to that corporation, drawn from the Merchants’ Bank on the 26th of June 1855 by a check for that amount signed by him in his official capacity. The jury returned a verdict that he was guilty of embezzling bank bills to the amount and value of two thousand dollars, in manner and form as set forth in the indictment. To many of the rulings of the presiding judge he alleged exceptions; and the questions of law to which they relate are now before this court for revision and final determination.

1. One of these exceptions lies at the foundation of the prosecution against the defendant. It rests upon the denial that at the time of the alleged embezzlement he was ia any such employment, or held any such office, as would enable him to commit the offence. In one of the prayers for special instructions to the jury, the judge was asked to rule, that the treasurer of the Eastern Railroad Company, in regard to money and funds under his control and administration, including such funds as were deposited or drawn on the 26th of June, was not such an officer or agent of the corporation that an indictment alleging embezzlement of its property could be maintained against him. If this rule had been adopted by the court, it would necessarily have ensured the acquittal of the defendant; for it asserts that the provisions of § 29 of c. 126 of the Rev. Sts., under which he was indicted, is inapplicable to any person holding the office of treasurer in a railroad corporation; and that no misappropriation, or conversion to his own use, of the money or property intrusted to him in his official capacity, however fraudulent or dishonest, and with whatever intent or purpose it may have been dpne, would or could constitute the crime of embezzlement. But the court declined to accede to this request of the defendant, and on the contrary ruled that the prohibition and penalties of this section of the statute extended to such officers, and that they were clearly embraced in the terms in which its provisions were expressed.

In the argument of the counsel in support of the exceptions no great reliance was placed upon this objection. Indeed we are not sure that it was not their purpose to waive it altogether. But we do not feel at liberty, in a matter of so great importance, wholly to overlook and disregard the objection on this ground alone, since if it could be maintained it would be fatal to the prosecution.

That part of the statute under which the defendant is indicted provides that if any officer, clerk, agent or servant of any incorporated company shall embezzle or fraudulently convert to his own use, or shall take or secrete with intent to embezzle or convert to his own use, without consent of his employer or master, any money or property of another which shall have come into his possession, or shall be under his care, by virtue of such employment, he shall be deemed by so doing to have committed the crime of simple larceny. Rev. Sts. c. 126, § 29. The treasurer of a railroad company is an officer distinctly recognized by law. He is to be chosen by the directors, and is required to give bond for the faithful discharge of his trust in such sum as the by-laws of the company shall require. Rev. Sts. c. 39, § 49. Being therefore within the very words of the statute, he must be considered as liable to the penalties prescribed for its violation, unless upon some reasonable principle of interpretation he is not to be accounted as one of the several parties against whose misconduct it was the object of the legislature to provide guards and security. It would certainly seem, not, less from the course of legislation on the subject, and the mischief to be provided against, than from the literal meaning of the words of the statute, that the treasurer of a railroad corporation is comprehended in one of tne classes of persons who, by a fraudulent conversion of prop erty enti'usted to their care, are to be deemed to have thereby committed the crime of larceny. The twenty-ninth section of c. 126 of the Rev. Sts. is a reenactment of the provisions of the St. of 1834, c. 186. But there is one significant and decisive change in its phraseology. While the former is only in general terms, the revised statutes mention particularly the “ officers and agents of any incorporated company” as parties to whom its provisions shall extend. They were specially mentioned probably to remove any doubt which might be entertained upon the question whether they were embraced in the more general language of the former statute. The commissioners by whom the revision was made do not appear to have intended to enlarge or change the class of persons by whom embezzlement might be committed. Nothing of that kind is alluded to in their notes. Commissioners’ Report of 1835, c. 126. This specific change in the language of the former statute only makes it certain that every officer of an incorporated company, to whose care property is entrusted by his employer, occupies a position in which he is to be considered capable of committing acts of embezzlement, and liable to the penalties which the law has assigned as the punishment of the offence.

The only consideration which has ever, as far as we know, been suggested as having a tendency to show that upon a true interpretation of the statute treasurers of incorporated companies are not comprehended under the general term of “ officers ” who are made liable to its penalties is, that on account of their peculiar employment and the nature of the duties they are required to perform, they are necessarily themselves the masters of all the property of which they come into the possession or have the care, and that they cannot therefore either embezzle, secrete or fraudulently convert it without the consent of then employer or master. This is a mistake ; no such difficulty exists. To some extent it is true that a treasurer, being a keeper of cash and responsible for it, has for the time being the exclusive right of possession, control and disposal. Unless he is restrained by some rule prescribed for the government of his official conduct, or by the orders of those to whom in the distribution of the powers and duties of the corporation for whom they all act he is made subordinate, he may keep the money, of which he obtains possession by virtue of his office, in the manner and in the place which he shall himself prefer — in any place where under a sense of his responsibility he may consider it, however erroneously, the most secure and the most readily available for any purpose to which those to whom it belongs shall devote it. But in doing this he is only executing a trust. He is not managing anything which is his own, but only controlling, within the legitimate limits of his official authority, for the benefit of the owner by whom he is employed, the property entrusted to his care. And in this particular, excepting merely the kind, and it may be the value, of the property respectively possessed, his powers, duties and obligations do not in the least degree differ from the powers, duties and responsibilities of the clerks, agents and servants of the same employer. They are severally, for the time which they hold possession of anything committed to them to keep, as much masters of it, as he in the same sense is master of the money with which he is entrusted. Both and all of them are to act, in their several relations, with strict fidelity to their employer; and every species of property is to be kept by them respectively upon the terms and according to the directions given them concerning it. The clerk who has the custody of books and papers, the agent to whom is given the general control of all the effects of his principal, the servant who in a more limited sphere is entrusted with goods for any specific purpose, has each within the circle of his authority a right of control as clear and absolute as that of the treasurer in the discharge of the duties which devolve upon him in a higher and more responsible department of service. They are therefore all alike included in the scope and purposes, as well as in the literal meaning of the comprehensive words of the statute. And surely, if there be any reason to discriminate between different ranks and classes of service, to no one of all those who may be in the employment of a corporation, of copartners or of individual proprietors, can there be a higher reason or more stringent occasion for applying the restraint of penal laws to insure fidelity than to him who is specially entrusted with the care of money. Of every species of property, this is the most easily concealed, misapplied, converted to use and embezzled. Being at all times available for the purposes either of business or of pleasure* it presents more than anything else a temptation to misuse. Whether therefore the mischiefs to be guarded against, the temptations to be restrained, or the express words of the statute, are considered, it is equally apparent that treasurers of railroad corporations, as well as of other bodies politic, to whose care any kind of personal property is specifically entrusted by then employers to be kept for them, are to be accounted officers, within the meaning of that term as it is used in the particular section of the statute prescribing the punishment of embezzlement.

2. As we thus find that the defendant occupied a position in which he was capable of committing the offence charged against him in the indictment, we are brought to a consideration of the several rulings of the presiding judge which are complained of as erroneous.

In the first place the defendant insists that all the evidence concerning the confessions supposed to have been made by him to John B. Parker and to Samuel Hooper, which was produced by the government in support of the prosecution, ought, upon his objection thereto, to have been rejected, because they were not, in a legal sense, voluntary confessions, but were evoked from him by promises of favor, held out to induce him to acknowledge himself guilty of embezzling the money of his employers. If he was right in the fact which he thus alleged, there can be no doubt that the objection which he predicates upon it ought to have been allowed to prevail; for no legal proposition is better established than that upon which the objection rests. It is certainly a clear as well as familiar principle of law, that every free and voluntary confession is admissible in evidence against a party accused of any criminal offence; but that all those which are obtained from him by threats of harm, or promises of favor and worldly advantage, held out by a person in authority, or standing in any relation from which the law will presume that his communications would be likely to exercise an influence over the mind of the accused, are to be excluded from the hearing of judicial tribunals. This is in conformity with the whole current of authorities on the subject. 1 Greenl. Ev. § 219. Commonwealth v. Knapp, 9 Pick. 507, and 10 Pick. 489. 2 Bennett & Heard’s Lead. Crim. Cas. 184 & seq. Rose. Crim. Ev. 29. Doubts have sometimes been expressed both as to the expediency of the rule, and the extent, to which in particular instances it has been allowed to be carried; but no one thinks of breaking in upon or attempting to disturb it. Regina v. Baldrey, 5 Cox C. C. 523. “ The ground,” said the chief justice of this court, “ on which confessions made by a party accused, under promises of favor, or threats of injury, are excluded as incompetent, is, not because any wrong is done to the accused, in using them, but because he may be induced, by the pressure of hope or fear, to admit facts unfavorable to him, without regard to their truth, in order to obtain the promised relief, or avoid the threatened danger, and therefore admissions so obtained have no just and legitimate tendency to prove the facts admitted.” Commonwealth v. Morey, 1 Gray, 462, 463.

It does not appear from the bill of exceptions that any doubt whatever was entertained by the court, upon the trial of the defendant, concerning his right to have the full benefit, advantage and protection of this rule of law, or that any controversy arose or existed concerning it. But there was a question of fact which was debated by the parties; and this was, whether the communications of the defendant to Parker and to Hooper were free and voluntary disclosures, or were drawn out by promises of favor held forth to induce him to make an acknowledgment of his guilt. In relation to the testimony of Parker, it is distinctly stated in the bill of exceptions that the court determined that the facts disclosed by Reed were insufficient to exclude the proposed evidence of the defendant’s confessions upon the ground that they were made under the influence or in consequence of any promises of favor. And although nothing is specially said upon this subject n relation to the testimony of Hooper, we think it is very apparent that it was held to be admissible solely upon the ground that there was no sufficient proof before -the court of any such antecedent promises as would justify its exclusion. Indeed, all this is substantially conceded; for in the argument in support of the exceptions it was not suggested that there was any failure on the part of the court to recognize this principle of law, or any refusal to apply it in what was admitted to be a proper case, but that it was erroneously determined upon the evidence that no promises of favor were held out to induce the confessions of guilt upon which the government relied in support of the prosecution.

The question then recurs whether that adjudication was correct. This is to be determined upon a consideration of the evidence which was before the court when that question arose, and cannot be settled by a mere reference to judicial authorities. These can only supply the principle of law which is to constitute a uniform standard of decision; but in every case the admissibility in evidence of confessions must depend upon the peculiar state of facts and circumstances under which it is offered.

.To show that the confessions of the defendant to which the testimony of Parker relates were not free and voluntary communications, but were educed from him under the pressure of hopes excited by promises of favor, the defendant relied at the trial, and still relies, upon the facts disclosed by Reed in his examination upon the preliminary question. It appears from this examination that on the evening of the 27th of June 1855 the defendant went, in company with his wife, and certainly after consultation with her in relation to the objects of his visit, to the residence of his friend Reed in Lynn, to make a disclosure of the trouble in which he was involved, and to solicit advice concerning it. After he had, in language the substance only of which is stated, admitted that he was a defaulter in his official capacity as the treasurer of the Eastern Railroad Company, Reed said to him that “ he had better go to the directors and make a clean breast of it; ” “ that it would be for his interest to go and confess all; ” “ to go and make a full confession ; ” that “ he had better go and make a clean confession and a clean breast of" it.” It is insisted that these expressions, to which it appears that Reed repeatedly gave utterance, were calculated to encourage the defendant to confess, to excite in his mind hopes of relief and advantage if he yielded to that advice ; and that he must have considered them to be, and lhat they were in fact, promises of favor held out as inducements to influence him in the course of conduct he should pursue. Such might, and perhaps would, be the necessary and legal consequences of these exhortations of Reed, if they were to be considered without reference to the circumstances under which they were made, and to whatever else was said at the same time, tending'to limit, explain and qualify their meaning. The accompanying circumstances are never to be lost sight of in determining whether proof of confessions alleged to have been made shall be received. Thus, if an accused party has been made a prisoner, anything which may be said to him by the officer by whom he is held in custody will always be scrutinized with the greatest care, and slight promises of favor coming from him will be considered a sufficient reason for rejecting all proof of subsequent confessions. Commonwealth v. Taylor, 5 Cush. 605. But the defendant was not under arrest, and no charge had been brought or complaint made against him at the time of his interview with Reed. From the responsible position which he occupied, as the treasurer of a great railroad corporation, it is impossible not to regard him as a person possessed of at least the ordinary degree of intelligence, and quite capable of appreciating the force and effect of the whole conversation which then took place. And in looking at the bill of exceptions, it is very plain that, in addition to the expressions which have already been quoted, much was said by Reed by which they were materially qualified. Thus he states that he “ said nothing, in terms, of a prosecution ; ” that he told the defendant “ to commit no violence on himself, nor run away; that the disgrace was in doing wrong, not in suffering punishment for it; he had better stay and meet the punishment; ” and finally, that he “ advised the defendant as a friend and as a son.” Now it is impossible, taking all this together, to consider that any promise of favor was held out to the defendant as an inducement to confess his guilt. But there was a consultation between the parties; and the defendant, at the conclusion of their conversation, obtained all that he went to solicit from his friend. It was advice how he should conduct himself in the emergency into which he had fallen, that he particularly sought for; and that advice was given generally, upon the broad ground of right and expediency; and though pressed with an earnestness corresponding with the importance of the occasion, Reed did not presume to accompany it with any assurance of protection or any promise of favor or relief. And it was obviously understood in this light by the defendant; for at that time he. declined to reply in any detail to the inquiries which were urgently, though kindly, pressed upon him ; and he reserved to a future occasion the determination whether he would make the frank and full communications to which he was exhorted. This was all the evidence, when the testimony of Parker was offered, which was before the court to show that any promise of favor had been made or held out to the defendant; and as it fails to prove that fact, it was rightly held that there was no sufficient ground upon which it could be excluded.

Nor does it appear from the testimony of Hooper that, previously to making those confessions to him, which the government proposed to put in evidence, any promises of favor or assurances of safety or relief had been held out to the defendant to bias or disturb his judgment, or to influence his conduct or course of action. When they met in the morning after the interview with Reed at the office of the latter, Reed urged the defendant to make a full confession ; tided very hard to make him do so; and amongst other things said that Hooper had influence with the directors, and would see that he was not complained of or arrested. But here Hooper interposed, and told Reed to stop, and declared that he would make no promises whatever. And although he afterwards said to the defendant, that he had no vindictive feelings towards him, and intended to do whatever was right and proper for him to do to prevent his arrest or the institution of a prosecution against him ; yet he cautiously and repeatedly added, that he did not know the extent either of his power or of his duty ; but that at all events he would enter into no stipulations with or make any promises to the defendant, who, in revealing or fully developing the particulars of his defalcations, must confide wholly in him; and that he should in every respect, without embarrassing himself by any previous engagements, do precisely as his own judgment and discretion should direct him. This is too clear and explicit to admit of any doubt, either as to what was said, or as to the import and meaning of what was said. Not only were no promises of favor made; but the defendant was repeatedly warned, in substance, that none would or could be made, and that he must decide for himself whether he would disclose or withhold the information he was desired to communicate. He afterwards did confess, and gave to Hooper for the directors a detailed written statement of the various sums of money which he had on different occasions abstracted from the company’s treasury; not, as there is any reason to suppose, under the influence of a promise of favor which had, of which he supposed had, been made to him; but rather in a confidence entertained in his own mind, and probably well founded, that what he might do in future would mitigate the resentment or disapprobation of those whom he had injured, and thus secure to himself protection and relief. The judge determined, and we do not see how he could have come to any other determination, that evidence of the confessions which ensued was admissible.

3. The defendant further excepted, and now objects, to the ruling of the presiding judge, that, if money which belonged tc the Eastern Railroad Company was deposited in the Merchants' Bank by the defendant to his own credit as treasurer of the corporation, and he afterwards in that capacity drew his own check upon the bank therefor, and received the amount of it in bills, those bills, while in his hands as treasurer, were the property of the corporation, and might be embezzled by him. And this objection is attempted to be supported upon two grounds: first, that the defendant, though bound by law to apply that amount of money to the use and service of the corporation, was not required absolutely to apply those identical bills for that purpose; and secondly, that the relationship between him and the corporation was such that his possession gave them no ownership of the money or coin which he drew from the bank. As to the first of these reasons, it may be assumed as true that, if unrestrained, as in this instance he appears to have been, by positive instructions on the subject, the treasurer might lawfully change the money which came into his hands, whenever and as often as he should choose to do so ; but the consequence contended for by no means follows from the exercise of that right or privilege. The change of one parcel of bank bills for another parcel, or for their equivalent value in any species of currency, can have no effect upon the rights of the parties in relation to the question of ownership ;• for of whatever the money, which for the time being is in the hands of the treasurer of a railroad company and held by him on their account, may consist, it always, and in every shape, belongs to his principals. He is at all times the keeper of their property, and never, whatever its form may be, can rightfully set up any claim of ownership to it in himself, in opposition to them. He cannot cease to hold it in trust, so long as he holds it at all. Here it is admitted, in the very terms in which the exception is stated, that the money which was deposited in the bank belonged to the corporation. They had therefore a perfect right to draw and use the amount deposited as their own ; and it could be drawn only upon the order or check of their treasurer. When it was so drawn, the bills received could no less be theirs, than were the bills or coin placed on deposit, and for which by this course of proceeding they would have been virtually exchanged. And this shows that there is no foundation for the second reason urged in support of the exception. The relationship of the parties to each other is not that of debtor and creditor; nor does it arise from a contract that one of them shall collect and receive money belonging to the other, and thereupon account for and pay it over to him; or that one shall pay over to the other the proceeds of property which he has been authorized and employed to sell for the owner; as in the cases of Commonwealth v. Stearns, 2 Met. 343, and Commonwealth v. Libbey, 11 Met. 64, cited by the counsel for the defendant. But, more than this, he is exercising a trust which is not only faithfully, but specifically, to be observed and kept. As an officer of the corporation, whose especial duty it is to hold, manage and control their funds, whenever money belonging to his principals comes into his possession, he must hold it in his fiduciary character, having no further right to or interest in it than that which is sufficient to enable him to discharge his duty to the owner by whom he has been intrusted with its possession. The ruling of the court upon this subject appears therefore to have been perfectly correct.

4. The next exception of the defendant is founded upon the general and well established rule that in all trials, and especially in every criminal trial, the evidence must be confined to the proof or disproof of the precise point in issue. And it is undoubtedly true that the prosecutor is commonly to be restrained from proving the commission by the accused of other distinct offences, for the purpose of showing that he is guilty of that which is specially charged against him. The defendant objects that this rule, which was of the greatest practical importance to him, was directly disregarded upon his trial; and that if it had been properly enforced, all the evidence which was admitted respecting acts of alleged embezzlement "of property belonging to the Eastern Railroad Company, other and distinct from those set forth and charged against him in the indictment, would have been excluded.

To form a correct opinion upon the question whether this evidence was admissible, it is necessary to take notice, in the first place, that it was confined to a special and designated class of facts, having, as it was alleged, and as it was understood by the court, a peculiar and intimate, if not also an inseparable, connection with, and tending to explain and characterize, the material act in issue which was charged against the defendant; and secondly, that it was allowed to be laid before the jury for the sole purpose of showing that the money alleged to have been embezzled was taken and appropriated by him with a fraudulent intent. The counsel for the government proposed to enter upon a much broader field of inquiry, and to prove, without limitation, the commission of distinct and independent acts of embezzlement during the period between six months and four years next preceding the commission of the act charged in the indictment. But he was not allowed to do so. In the strict application of the rule, that no evidence inapplicable to the precise point in issue is admissible, all the proofs which he offered in relation to those remote and independent facts were rejected. But there was another class of facts of an entirely different character. It had already appeared in the progress of the trial, from the testimony of Hooper, that the defendant, in giving an account of his dealing with the funds of the corporation, produced and delivered to him a detailed statement in writing of the various sums of money which he had, after receiving them in his official capacity, wrongfully abstracted from the treasury, and for which he was then a defaulter. This paper had been produced in evidence. One of the items found upon it was the same sum of $5000, the embezzlement of which was set forth and charged against the defendant in the indictment. This item and all the items contained in the paper were explained by him to Hooper to be a statement of the different amounts of the property of the corporation which he had appropriated to his own use. All these various circumstances appeared to the court below to have a tendency to prove that the misappropriation of this sum of $5000 was one of a series of connected transactions, and that the whole series would tend to show the intent of the defendant in doing the particular act which is made the subject of accusation against him in the indictment. There may be a difference of opinion as to the effect of this evidence, of the inferences to be drawn from it, and of its sufficiency to prove the occurrence of a series of connected transactions, and the guilty intent of the defendant in them all, which it was the object of the government to establish by its introduction. But it is enough that it had a tendency to show these important facts. The intent and purpose of the defendant, in the withdrawal of the sum of $5000 from the treasury of the corporation, and in the disposal and appropriation which he made of it, was an essential matter of inquiry in relation to the issue to be tried. His alleged guilt consisted not merely in the conversion of the money, but in its fraudulent conversion to his own use. Hence it was competent for the government to introduce evidence of any facts tending directly to show his fraudulent intent, or from which that intent might justly and reasonably be inferred. It was in this view, that the government was permitted to lay before the jury proof of the embezzlement by the defendant of the several sums of money mentioned in the written statement which constituted a part of his confessions to Hooper. In relation to each and all of these several sums of money, if his conduct, motive, purpose and intent ought not to be considered to be by him confessedly of the same character, yet it is clear from the testimony of Hooper that, in the full explanations afforded in the course of his confession, the defendant himself did not indicate or suggest any distinction between them, but brought them all together in one general statement of his defalcations. If his intent in relation to all of them was precisely the same, then if in reference to any of them it was shown to be fraudulent, all would be shown to be fraudulent, and thus a particular fact material to the issue would be satisfactorily established. Considered in this aspect, it will be seen that the admission and exclusion of all the evidence, produced or offered by the government concerning transactions other than those mentioned in the indictment, were both regulated, not in disregard, but in strict recognition, of the rule requiring it to be confined to the proof or disproof of the point in issue. Thus all the proof which was offered in relation to transactions not intimately and directly connected with the particular accusation against the defendant, or with the evidence, or in necessary explanation of the evidence, adduced to establish it, was carefully rejected. But, on the other hand, transactions which had that intimate connection were permitted to be shown, because they tended to develop and expose the fraudulent intent of the defendant in converting to his own use the $5000 which he is charged in the indictment with having embezzled, and thus to sustain one of its essential allegations. This was perfectly right. Where the intent of the accused party forms any part of the matter in issue, evidence may always be given of other acts not in issue, provided they tend to establish the intent imputed to him in committing the act. Rose. Grim. Ev. 71. The same proposition is stated, though in somewhat different language, by Archbold. Archb. Grim. PL (10th ed.) 112. This rule is always recognized. It is uniformly acted upon in criminal trials, whenever an occasion arises for its application.

Thus where a party was tried upon an indictment for the crime of adultery, evidence of three instances of improper familiarity between the prisoner and his supposed paramour, one of which occurred within a fortnight and the others within a year next preceding the particular act complained of, was held to be admissible; and this manifestly for the purpose of showing the intent of the parties when they met in secret, so that no direct evidence of their conduct there could be expected to be produced. And in delivering the opinion of the court, it was said by Putnam, J.: “ Evidence should be excluded which tends only to the proof of collateral facts. But it should be admitted if it has a natural tendency to establish the fact in controversy.” To which he immediately adds : “ It was argued that the defendant was not to be put upon his trial for every act of his life, but for a particular offence. Be it so; if the evidence which was received has a natural tendency to corroborate other direct evidence in the case, it would seem to be clearly admissible.” Commonwealth v. Merriam, 14 Pick. 519, 520.

In the case of Commonwealth v. Eastman, 1 Cush. 216, this principle of law was not only fully recognized, but its decision afforded an opportunity for a clear exposition of the occasions upon which it may be availed of, and of the reason upon which it is founded. The defendants were indicted for obtaining goods and merchandise, by false pretences, of certain persons named in the indictment. On the trial evidence of purchases of goods from other persons, under circumstances similar to the transactions charged in the indictment, was offered in support of the prosecution. It was objected to, but admitted. In stating the. opinion of the court, after an elaborate argument by the counsel for the defendants, it was said by Dewey, J.: ‘ This species of evidence would not be admissible for the purpose of showing that the defendants had also committed other like offences; but simply as an indication of their intention in making the purchases set out in the indictment.” “ Such evidence is always open to the objection that it requires the defendant to explain other transactions than those charged in the indictment; but when offered for the limited purpose of showing a criminal intent in doing the act charged in the indictment, it has always been held admissible.” See also Commonwealth v. Miller, 3 Cush. 250.

These authorities abundantly establish the principle contended for on the part of the government. It is not indeed denied by the counsel for the defendant; but the objection urged to the admission of evidence concerning other acts of embezzlement beyond that immediately charged in the indictment rests wholly upon the rule that it ought always to be confined to the precise point in issue. But in the position of the case, when during the progress of the trial evidence of some such transactions was offered, the government had become entitled, not in disregard or in violation of that rule, but upon another distinct principle, to avail itself, to the extent which was authorized by the court, of proof concerning those particular transactions w’bich the defendant by the manner and form and peculiarity of his confessions to Hooper had made pertinent, if not indeed indispensable, to a true exposition of his intent in using the particular sum of money alleged in the indictment to have been embezzled. The evidence was therefore properly admitted.

5. In reference to the general crime of embezzlement, the jury were instructed, that if the defendant, acting as treasurer, took the money of the corporatiop which had been entrusted to him, and used it for his own purposes, knowing that he had no right to do so, and did it without the consent of the company-or of any of its officers, and concealed the transaction from them, this amounted to a fraudulent conversion of the money of the company, even though at the time of taking it he intended to restore what he had so appropriated, before the appropriation should become known to its owners, and believed” that he should be able to do so, and had in his, possession property to secure the full amount of the property so taken. This instruction is objected to by the defendant for the assigned reason that it amounts to a statement, that every conversion made without a formal claim of right is a fraud; and that from any and every conversion fraud is necessarily to be presumed ; and that therefore the question whether the defendant was actuated by a fraudulent intent was substantially and improperly withdrawn from the consideration of the jury.

Embezzlement of property by officers, clerks, agents and servants is fully defined by the statute, which creates the offence and provides for its punishment. A fraudulent intent is made a constituent and an essential part of the offence. Without it there may be misconduct, but there will be no criminality. The question therefore whether any particular act of conversion was infected or accompanied by a fraudulent purpose is a question of fact to be passed upon by the jury. But the submission of that question to their determination ought to be accompanied with • suitable instructions in the matters of law which pertain to it. This being done, it may be sufficient to leave them to find whether there was or was not any fraudulent intent, in the legal sense and meaning of that phrase, and according to the definition of it which may have been given to them ; or whether they are reasonably satisfied of the truth of certain enumerated facts and circumstances from which a fraudulent intent, is a direct and inevitable inference. It is very plain that the latter was the course pursued upon the trial in the present case. For although in one part of his charge the presiding judge stated most explicitly that to establish the charge against the defendant the government must make out a fraudulent taking and conversion, and explained satisfactorily the nature of fraud and in what it consists, yet in conclusion the jury were advised that the actual conversion by the defendant to his own use of money belonging to his employers, which they had entrusted to him in his official capacity, doing this without their consent, and knowing that he had no right to do it, and concealing it from them, would amount to a fraudulent conversion. The question therefore, plainly stated, is, whether from the facts and circumstances to which the attention of the jury was thus called and directed a fraudulent intent in the taking and conversion of the money is the only just and reasonable inference which can be deduced. In fraud there is always some kind of deception. And a fraud may be defined to be any artifice whereby he who practises it sains, or attempts to gain, some undue advantage to himself, or to work some wrong or do some injury to another, by means of a representation which he knows to be false, or of an act which he knows to be against right or in violation of some positive duty. All these elements and characteristics of fraud are embraced in the hypothesis which was put to the jury, and upon which the final instructions given to them, and now objected to, were founded. The appropriation to his own use by the defendant of money belonging to the corporation, which came into his possession by virtue of his office and employment, and was thus entrusted to his care, was an unlawful act. It was a breach of trust; and, upon the supposition that he well understood that he had no right so to dispose of it, was a wilful violation of his duty. He unjustly gained thereby an undue advantage to himself in the accomplishment of objects purely selfish and personal, by applying to his own individual purposes the property of others, which he ought faithfully to have kept and preserved exclusively for them. He committed a wrong against his employers by secretly substituting his own mere personal credit and liability in the place of the specific property which they had entrusted to his care, and thus subjected them to a risk and hazard of loss which they had never consented or intended to assume. And by concealing the transaction from their knowledge, he practised upon them a preconceived and intentional deceit. For concealment, in the connection in which it was spoken of by the court, necessarily imports the execution of some plan previously arranged, or of some design which had been cautiously premeditated. This is not merely that he was still and silent, or omitted to publish or disclose what he had done; but involves by necessary implication the idea, that he had deliberately resorted to the active employment of means, which he believed would be effectual for that purpose, to secrete and hide from his employers the fact of his defalcation, in order that he might escape with impunity from its consequences. How, or in what manner, he effected that concealment, or whether any evidence was adduced upon the trial, which would warrant the conclusion that it was in fact in any way effected it is not now material to consider or inquire. It might have been by false entries upon the books of the corporation, or by the, failure to make any entry upon them at all; or by representations known to be untrue; or by any device resorted to for the purpose of disguising the truth from the knpwledge of his employers, and thus inducing them to rest in a false security. All these were proper subjects of inquiry and investigation upon the trial before the jury. We are confined here to the question whether the rule of law which was laid down for a guide to them in their deliberations was correct. And in this point of view it is obvious that the actual use of means in conformity to some scheme devised to conceal the unlawful appropriation of their money from his employers directly imports and evinces a purpose to mislead and deceive them. But no single circumstance is alone to be taken into consideration. The several 'acts enumerated as parts of the hypothesis upon which the instructions to the jury were predicated, embracing the conversion by the defendant of the money of his employers, the known -violation of duty thereby, the evident advantage gained for himself, the injury inflicted upon his employers, and some of these objects accomplished by artifice and deception voluntarily practised, were respectively unlawful; and taken altogether as one general fact, though consisting of several, but a connected series of, transactions, they constitute an act of positive fraud. And he by whom these acts were done must be presumed to have contemplated and intended the natural and probable consequences of his own well understood misconduct. And since the intention by which a party is actuated in any particular transaction must be presumed to participate in the nature of that transaction and of the various acts by which it is consummated, the inference must be inevitable that the perpetrator of a fraud commits it with a fraudulent intent. This result shows that the law was rightly stated and explained in the instructions to which exception is taken. These instructions were predicated upon the facts embraced in the hypothesis laid before the jury; and as the doing of the acts therein mentioned was fraudulent, the motive and intent with which they were done were fraudulent also.

This result cannot be affected by the consideration, if it be admitted to be well founded, that the defendant, at the time of taking and converting the money to his own use, intended to restore it to the owners before his appropriation of it should become known to them, and believed that he should be able to do so, and had in his possession property to the full amount of the money which was taken. The intention to take, and the intention at some future time to make restitution, may be two different operations of the mind, just as the taking of money at one time and the repayment of it at some subsequent period are two distinct transactions. But even if it can be supposed that these two purposes, having in view the accomplishment of objects éntirely distinct from each other, may be so blended together, by being contemplated at one and the same moment, as to be absolutely inseparable, still it is undeniable that the execution of them can be worked out only by successive acts, with some intervening space of time between them. The abstraction must necessarily precede the restitution. The first will be complete before there is a possibility of commencing the act by which it is to be followed. And thus, whatever it may be the purpose of a guilty party ultimately to do, the offence prohibited by the statute will already have been consummated whenever, after the commission of all the other acts of which it consists, a fraudulent conversion of property shall have actually taken place. And even if it be necessary to go the length of affirming that there can be no embezzlement except where money or property is taken with an intention never to return to the owner that which is taken, the actual use and conversion of money will cover and comprehend that proposition. For as an encrusted agent, servant or officer can convert to his own use the money of his employer only by passing it out of his hands and delivering it with the right of property to some other person, since, so long as he remains in possession of it, it will continue to be the specific property of his principal, he necessarily loses all control of it by such an unlawful conversion, and can never afterwards by his own mere power and motion bring it back. The past is complete and unchangeable; and as to the future he is dependent upon the will of others and upon circumstances over which he cannot exercise an absolute control. The intention to abstract the money and appropriate it to his own use has been fully executed; the intention to indemnify and do justice to the party from whom it has been withdrawn remains unexecuted, and may finally, however conscientiously entertained, be altogether defeated. Conversion bears nearly, if not quite, the same relation to embezzlement, as asportation does to the crime of larceny. Yet no one would doubt but that the commission of the latter crime would .be fully consummated if a person, possessed of abundant means to afford and ultimately to insure a complete indemnity to the owner of stolen property, if applied to that purpose, should, under the pressure of some present necessity for money, go furtively into his neighbor’s shop, and carry away from there a parcel of coin or bank bills found there, although the act were accompanied with an intention to return as much at an early, but yet at a future, day, to be put in its place before the money should have been missed or the trespass become known. That which must always qualify and characterize the act is the intention of the party when he takes or converts to his own use the property of another person. If the intention be to use and enjoy the thing taken for some brief period, and then to abandon or restore it to the owner in the identical form and condition in which it was taken, a trespass only may have been committed, however unjustifiable were the means by which the possession of it was acquired; but if the intention be, feloniously in the one case, or fraudulently in the other, to make a full and entire appropriation to his own use, and thus absolutely to deprive the' owner of his property, the act, whether of asportation or of conversion, will be criminal, and is not to be excused or justified by any resolve, however honestly entertained, to make restitution at some future, but indefinite period.

It was in conformity to the principle, thus developed, that the instructions to the jury which are complained of were framed and accurately stated. They were to find the conversion of the money taken by the defendant from the treasury of the Eastern Railroad Corporation to have been fraudulent, if they found the evidence laid before them sufficient to prove the truth of certain alleged facts from which a fraudulent intent was a legitimate and an inevitable inference. Thus under these instructions it must have been made satisfactorily to appear to the jury, before they could have rendered a verdict of conviction, that the defendant, standing in a relation of trust and confidence to his employers, not only unlawfully and in violation of his duty converted their money, entrusted to his official care, to his own use; but that he did it by artifice and deception deliberately practised, and therefore with a fraudulent intent. These instructions then contained a precise description of one of the acts of embezzlement, which are made criminal by the express provisions of the statute; and they were accurately adapted to the particular accusation set forth in the indictment against the defendant.

6. In addition to the various objections which have now been considered and disposed of, the defendant excepts to the course of proceeding upon the trial, and to the refusal of the presiding judge to rule in conformity to many of the prayers for instruction, which were seasonably presented to the court for its adoption. Instead of adopting them, he gave such instructions as he deemed proper for the direction and guidance of the jury. When, as in the present case, at the close of a protracted trial, many prayers for instruction, voluminous and complicated in their structure, are presented to the court by either or both of the parties, it is within the judicial discretion of the judge to respond to them severally, adopting such parts as appear to be correct, and rejecting the residue altogether; or to explain the law wholly in language of his own. And no cause of complaint is thereby afforded, if all the matters propounded in the various prayers are fully adverted to and explained. No complaint of any omission in relation to them is urged by the defendant; but he insists that the court erred in overruling the doctrine, which he says is involved in his prayers for his instructions, that there can be no embezzlement unless there has been a demand of the money alleged to have been embezzled, or a denial of its receipt, or some false account given of it, or a false statement or false entry concerning it, or a refusal to account for it. If the doctrine so stated be fairly indicated and involved in those prayers, it is clear that they were properly overruled, because it is apparent, from the definition already given, that the several circumstances above mentioned do not in fact constitute any part or element of the offence. They are facts and circumstances admissible in evidence as bearing upon the question of a fraudulent intent; but for all other purposes they are wholly immaterial. And this is all that is shown by the several authorities cited by the defendant to support the doctrine supposed to be asserted in his prayers for instruction. Thus it appears in relation to these prayers that both the refusal of the court to adopt them literally as the basis of its instructions, and the substitution of a different definition of the offence charged against the defendant in the indictment, were correct in point of law and obnoxious to no valid objection.

Exceptions overruled.