Commonwealth v. Sawtelle , 141 Mass. 140 ( 1886 )

Dbvbns, J.

The defendant testified that all the money which Mrs. Sawin paid him he handed to the bookkeeper, or placed it in the money-drawer, when he returned to the store. The entry made by the defendant in his own handwriting credited Mrs. Sawin with fifty dollars only as paid by her on the day on which one of the acts of embezzlement was alleged to have been committed, the payment made by her, according to her testimony, having been sixty-one dollars. The defendant objected to the question to the bookkeeper whether his cash overran that day. It obviously would have done so, if the defendant had actually deposited the sum testified by Mrs. Sawin to have been received by him. If this question involved a single transaction, as if the money in the cash-drawer had been counted immediately before the deposit by the defendant, and then immediately afterwards, the amount of the sum deposited would be clearly shown. It would not seriously be contended that such evidence was inadmissible when the amount was in dispute. The fact that the question involves the business of an entire day, and thus that, by reason of the number of transactions that had taken place, there was an opportunity for mistake as to the amount on hand received, counted, or deposited, in connection with such other transactions, so that it was possible that the discrepancy between the amount which should have been found in the drawer, if Mrs. Sawin’s evidence were true, and the amount actually found, might be attributable to error in such other transactions, constitutes an argument as to the weight, and not an objection to the competency, of the evidence. Evidence is not to be rejected because it fails to be conclusive; it is sufficient if it fairly tends to prove a point sought to be established.

The defendant further contends, that, if the fact that the cash balanced upon the basis that fifty dollars only was paid in by him was competent, it could only have been proved by the books. This objection does not appear to have been taken at the trial, and can hardly be considered open. But it was not a question of what the books contained, but whether the amount on hand in the morning, adding thereto the amounts received during the day, equalled the amounts paid out during the day, adding thereto the balance on hand at the close of business. If the bookkeeper was able to state, as matter of fact, that these amounts balanced, treating the amount received from Mrs. Sawin as the defendant had entered it, he might do so, even though the statement involved the several minor facts of other receipts and payments.

In a conversation subsequent to the alleged acts of embezzlement, there was evidence that the defendant admitted that he had been taking money from his employer, Pope, whose property was alleged to have been embezzled, “ all along ever since he began to work for him, but could not say how much he had taken.” It appeared that no allusion was made to the specific matters charged in the indictment, by name, words, or figures. The judge instructed the jury, that they should not consider this confession, unless it had reference to some of the specific matters charged in the indictment. This was certainly sufficiently favorable to the defendant, as testimony in reference to similar transactions is admissible to show the criminal intent of a party when other transactions of the same general character, and connected therewith, are investigated. Commonwealth v. Shepard, 1 Allen, 575. Commonwealth v. Eastman, 1 Cush. 189, 216. Commonwealth v. Tuckerman, 10 Gray, 173. Nor is the admission of this evidence open to the objection that it was not competent for the jury to say that the confession related to the specific matters charged in the indictment. Even if those were not mentioned by name or other particular designation, a confession which related to a course of conduct pursued by the defendant during his whole employment in the service of the person whose property he was alleged to have embezzled, necessarily had reference to, and characterized, all the acts and matters charged to have been done within that time.

Exceptions overruled.