Commonwealth v. Pratt

Colburn, J.

1. The first question raised by the motion to quash is, whether the defendant was indictable under § 38 or § 39 of the Gen. Sts. e. 161, (Pub. Sts. c. 203, §§ 40, 41,) or whether he might have been indicted under either section, at *103 the option of the prosecutor; the contention of the defendant being that he could only be indicted under § 39 of the Gen. Sts. e. 161. *

In determining this question, the history of these statutes furnishes much assistance. The first bank established in this Commonwealth was the Massachusetts Bank, incorporated on February 7, 1784, by the St. of 1783, a. 25; and on March 16, 1784, the St. of 1783, c. 53, an act to prevent frauds on that bank, was passed, the first section of which provides for the punishment of embezzlement from that bank, by its officers or servants.

On January 29, 1825, many banks having by that time been incorporated, the St. of 1824, c. 51, was passed, “ to prevent and punish frauds upon banks,” which provides for the punishment of embezzlement by an officer or servant “of any bank incorporated within this Commonwealth, for the purpose of issuing bills or notes;” and the St. of March 16, 1784, was repealed. “An act to regulate banks and banking,” passed February 28,1829, being the St. of 1828, e. 96, reenacts in § 26 substantially the act of January 29, 1825.

These acts were revised, and became § 27 of the Rev. Sts. c. 126, which is substantially a reenactment of the Sts. of 1824, c. 51, and 1828, c. 96, § 26, except that the words “ any incorporated bank ” are substituted for the words “ any bank incorporated within this Commonwealth, for the purpose of issuing bills or notes; ” and it was provided that the offender should be deemed to have committed the crime of larceny “ in such bank,” instead of simply the crime of larceny, as provided in the former statutes. This section was substantially reenacted in the St. of 1846, c. 171, § 1, and became § 39 of the Gen. Sts. c. 161.

The first act for the punishment of embezzlement, except those already mentioned, was the St. of 1834, c. 186. This act did not include officers or servants of an incorporated company. The first section of this act was revised, and extended to include officers, agents, clerks, or servants of any incorporated company; *104 in the Rev. Sts. c. 126, § 29, and became § 38 of the Gen. Sts. c. 161.

It is clear that, under the statutes of which § 27 of the Rev. Sts. c. 126, is a revision, an officer of a savings bank or institution for savings could not have been indicted, and it seems improbable that it was intended to include in § 27 an entirely different class of corporations from those to which the statutes of which it is a revision applied, without any note indicating the intention to make so important a change. It seems more probable that the substitution of the words “ any incorporated bank,” for the words “ any bank incorporated within this Commonwealth, for the purpose of issuing bills or notes,” was only for the purpose of brevity. There were at that time no incorporated banks, eo nomine, beside banks of issue, except one or two institutions for savings, which had been incorporated under the name of savings banks. We are aware of but one instance, that of “the Savings Bank for Seamen in the city of Boston.” St. 1833, e. 73. Prior to 1843, institutions for savings were almost universally incorporated under the name of “institutions,” and not “banks.” Generally when the words “ bank ” and “ incorporated bank ” are used in the statutes without words of qualification, a bank of issue is meant. See Rev. Sts. e. 36; Gen. Sts. c. 57; Pub. Sts. c. 118. And this is the' meaning ordinarily given to the word in the community. No one would suppose that a note “ payable at any bank in Boston ” was payable at a savings bank.

It would seem to be a forced construction to hold that an officer of an institution for savings, incorporated under that name, could be indicted under the Rev. Sts. c. 126, § 27, or the Gen. Sts. c. 161, § 39; and yet a savings bank and institution for savings differ only in name. In Commonwealth v. Wyman, 8 Met. 247 , it was held that the defendant, who was president of a bank of issue, was not indictable for embezzlement from the bank under the Rev. Sts. c. 126, § 29, though that section in its terms included his offence, but must be indicted under § 27, as that section expressly applied to officers of such banks. The decision is put upon the ground that § 27 is a revision of statutes expressly relating to such banks. The decision in that case, as it related only to a bank of issue, has but slight bearing upon the question before us.

*105 It seems probable that the Legislature designed that § 27 of the Rev. Sts. c. 126, should apply to officers of what were commonly known as banks, that is, banks of issue, to which only the statutes of which it was a revision applied; and that officers of all other incorporated companies, including savings banks or institutions for savings, should be included in § 29.

The decision in Commonwealth v. Tenney, 97 Mass. 50 , that national banks are included within the provisions of the Gen. Sts. c. 161, § 39, has but slight bearing upon the present question, as national banks are banks of issue, and essentially alike in their functions to the state banks which they succeeded.

For the reasons before stated, we are of opinion that the defendant was indictable under the Gen. Sts. c. 161, § 38.

In the case of Commonwealth v. Shepard, 1 Allen, 575 , the defendant was indicted under the St. of 1846, c. 171, § 1, for embezzlement as treasurer of a savings bank, and no question was made that he was not properly indicted under that statute.

In the present case, in which the question is raised, we do not find it necessary to determine definitely whether the defendant could properly be indicted under the Gen. Sts. c. 161, § 39, on the ground that a savings bank is an incorporated bank within the terms of that section, for the reason that we are of opinion that all the counts in the indictment which can be held to be founded on that statute are defective.

The offence prohibited by the Gen. Sts. c. 161, § 39, is declared to be larceny in a bank, which is larceny in a building. Commonwealth v. Pratt, 132 Mass. 246 . All the counts which can be held to be based on § 39, after describing the acts done, proceed as follows : “ Whereby, and by power of the statute in such case made and provided, the said Nathan P. Pratt is deemed to have committed the crime of simple larceny.” This is not the offence which this section deems the defendant to have committed, but is the offence which the embezzler is deemed to have committed under § 38. These counts then go on, “ and so the jurors aforesaid, on their oath aforesaid, do say,” in substance, that the defendant did steal, take, and carry away the property “ in the banking-house aforesaid; ” thus charging larceny in a building. These different allegations leave it in doubt whether *106 these counts are framed under § 38 or § 39, and with which offence the defendant is charged. The penalty for the different offences is different. The allegation that the defendant is deemed to have committed simple larceny cannot be rejected as surplusage, as it is descriptive of the identity of the offence, or of the kind of larceny with which the defendant is charged. We are of opinion that these counts must be held to be bad. These are the counts to which the motion to quash refers as describing “ offences wholly repugnant and different.”

It is further objected, in the motion to quash, that there is no sufficient description of the property alleged to have been stolen. No greater particularity in the description of the property is required, in an indictment for embezzlement, than in one for larceny. Commonwealth v. Concannon, 5 Allen, 502 . Commonwealth v. Butterick, 100 Mass. 1 .

Under the Gen. Sts. c. 161, § 42, (Pub. Sts. c. 203, § 44,) it is sufficient to allege the embezzlement of money to a certain amount, without specifying any particulars of such embezzlement. Commonwealth v. Bennett, 118 Mass. 443 . This is alleged in the first count, and whether the description of the other property in that count is sufficient, is immaterial under the motion to quash. In the other counts, the mortgages and notes are sufficiently described to identify them, and this is sufficient, at least under the counts based on the Gen. Sts. c. 161, § 38, and whether the “ pieces of paper writing ” are sufficiently described is immaterial under the motion to quash.

We are of opinion that the first, second, fifth, seventh, eighth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, and twenty-third counts in the indictment are sufficient; but that the other counts upon which the defendant was found guilty are bad, so that no judgment can be entered upon them.

A part of the counts in the indictment being good, the motion to quash was rightly overruled. Commonwealth v. Hawkins, 3 Gray, 463 . Commonwealth v. Howe, 13 Gray, 26 .

2. The motions at the trial, to require the government to elect upon which of the counts in the indictment it would rely, were addressed to the discretion of the judge, and his refusal to order an election is not subject to exception. Commonwealth v. Sullivan, 104 Mass. 552 .

*107 3. All the exceptions to the rulings of the court that the government was not required, upon the offer and request of the defendant, to become a witness, to call him to prove writings and signatures, in cases where it would have been necessary to call him if it had not been for his position of defendant, may be considered together. *

We are of opinion that the government had the right to proceed in the proof of its case as if the defendant could not be a witness. It could not compel him to testify. He was “ deemed a competent witness,” “at his own request, but not otherwise.” St. 1870, e. 393, § 1. Pub. Sts. c. 169, § 18. We do not think the method in which the government should prove its case was dependent upon his option. The purpose of the statute was to grant a privilege to the defendant, and not, at his election, to impose an obligation upon the government. The defendant had the full benefit of the statute, by testifying in defence as fully as he saw fit upon all parts of the case.

4. We see no ground for the exception to the ruling of the court, allowing the record of the vote authorizing the treasurer of the bank to release, discharge, and assign the mortgages of the bank, which the government contended authorized him, as it was passed, only to release and discharge mortgages of the bank, and had been fraudulently altered, to be exhibited to the jury, under the circumstances stated in the bill of exceptions. The book containing the record of the vote was the book of records of the bank, kept by the defendant, as its secretary, for the correctness of which he was presumably responsible, whether it was all in his handwriting or not. The government contended that inspection would show, not only changes in the record, but what the changes were. There had been evidence of the form in which the vote was originally passed. One step in proving a fraudulent alteration was to prove an alteration. The court passed only upon the admissibility of the record, not upon its effect; and it was clearly admissible.

*108 As to the requests for instructions to the jury: The meaning of the defendant’s first request is not readily apparent, but, as we understand it, it was in substance a request that the jury be instructed, that, as by an unauthorized assignment and delivery, the defendant could pass no title to the mortgages, as against the bank, such an act was not an assignment, and therefore not an embezzlement of the mortgages, as the bank could still enforce the mortgages against the mortgagors. This being the meaning, the instruction should not have been given. We are unable to see, as contended by the defendant in argument, that the request expressly assumes that the mortgages, as papers, were still in the bank. It assumes that the bank “ retained the full property and .benefit ” of the mortgages, but not the mortgages as written papers. It was the mortgages, as written papers, which the defendant was charged with embezzling.

The instructions asked for in the second request should not have been given. If the defendant believed he had authority to assign mortgages and mortgage notes, he could not have believed that he had such authority except for the purposes of the bank; and the exceptions expressly state that “there was no evidence that the defendant ever believed that he had authority to sell the mortgages of the bank, except for the purposes of the bank; ” and if he assigned mortgages and mortgage notes for his own use and benefit, it was an embezzlement of them.

The defendant further requested the judge to instruct the jury, if they found that the defendant took two or more mortgages at one time and assigned them to one assignee by one assignment, and the taking and assignment were all parts of a single transaction, that such taking and assignment would not support two or more several counts wherein the taking and assignment of said mortgages were alleged to be distinct acts of embezzlement ; and that for the same transaction the defendant could not be convicted as for two or more distinct acts of embezzlement. That the defendant was not entitled to have this request given is settled by Commonwealth v. Butterick , and Commonwealth v. Sullivan, ubi supra.

No exception was taken to the instructions given to the jury, but only to the refusal to give the instructions requested.

Exceptions overruled.

Section 38 applies to an embezzlement by an officer, agent, clerk, or servant of any incorporated company, and the offence is declared to be simple larceny. Section 39 applies to an embezzlement by an officer of an incorporated bank, and the offence is declared to be larceny in the bank.

The defendant was the secretary as well as treasurer of the savings bank. The government was allowed, without calling him as a witness, to prove his signature, as secretary, to the book of records of the corporation, for the purpose of proving the organization of the corporation; to prove his signature as an attesting witness to the execution of a mortgage deed; and to prove his signature to an assignment of a mortgage.