Commonwealth v. O'Keefe , 121 Mass. 59 ( 1876 )

Devens, J.

The defendant was a member of a voluntary unincorporated association called the Washington Engine Company, and as chairman of a committee collected money as a contribution to pay the expenses of a band of music, which money he afterwards refused to deliver to the treasurer of the association. Under the instruction given, as the defendant was convicted, it must have been found by the jury that the money was received by him upon the specific trust that he should pay the same over to the treasurer of the company. Upon examining the indictment, it appears, however, that the offence alleged therein is not averred to have been the violation of such a trust. It is there alleged that he received the money in trust and confidence to be by him delivered and paid over to the Washington Engine Company, and that, before the same was thus delivered and paid over, it was embezzled and fraudulently converted by him. It is recited in the indictment that one Charles Peters was the treasurer of the association, duly authorized to receive said money from the defendant. But it. is not alleged that the defendant received it upon any trust or confidence that he should pay it to Peters as treasurer, or should pay it to the company through Peters ; and it is only upon finding this trust that the instruction permitted the defendant to be convicted, while, unless this trust existed, he was to be acquitted. Assuming it to be true, therefore, as contended by the counsel for the Commonwealth, that, if the defendant had only a special agency to carry and deliver the money to the treasurer, the title would remain in the donors, of whom he would be the agent merely, the difficulty remains that such is not the trust and confidence he is alleged by the indictment to have violated. An allegation that the money was received by the defendant, a member of an unincorporated company, to pay to the company, does not call upon the defendant to meet the charge of the violation of such a specific trust, and the conviction cannot therefore be maintained.

Exceptions sustained.