Commonwealth v. Peakes , 231 Mass. 449 ( 1918 )

De Courcy, J.

The jury have found the defendant guilty

on an indictment containing twenty-five counts, based upon nine separate transactions. The nineteenth count charges him ■with the larceny of $2,200, and twenty-four counts are "for forgery, uttering. and larceny in relation to the other eight- occurrences. The facts with reference to these last, as proved by the Commonwealth and admitted by the defendant in his testimony, are substantially these: Peakes was the treasurer of F. E. Atteaux and Company, Incorporated, a corporation organized in Massachusetts in 1914, to take over the business of a similar corporation organized in 1900 under the laws of New Jersey. The corporation (by which we refer to both the present concern and its predecessor). was a manfacturer and importer of dyestuffs and chemicals. The defendant, in the eight transactions referred to, obtained from the company’s cashier a check signed in blank by her, telling her that he was going to the bank to buy exchange to send to a foreign customer, and that on learning what the exchange would cost he would fill in the check for that amount and return with a receipt. As matter of fact he filled in the checks for larger amounts, cashed them, and retained for himself the excess over what the exchange cost.

The defendant concealed his appropriation of his employer’s money by many acts that were calculated to deceive the bookkeepers, auditors and others. The receipts which the bank gave him, showing payment of the foreign drafts he purchased, were raised by him to the amount for which he had filled in 'the corporation’s checks, either by altering the figures on the bank’s receipt, or by inserting items indicating that additional drafts had been purchased. In the alterations he simulated the handwriting and the ink of the originals. He dictated letters which were supposed to accompany the exchange drafts that he pretended to have bought, and then destroyed the letters, leaving copies on the files, but sending others in their place. He removed from the files acknowledgments received from the foreign creditors. And he caused fictitious invoices to be entered on the accounts of these creditors in the corporation’s books, to avoid the appearance of overpayment. As to the nineteenth count for the larceny of $2,200: After purchasing with the corporation’s check two drafts for ten thousand francs each, he sent but one (although the books and correspondence indicated that he sent both), sold the other to a trust company and appropriated the proceeds after deceiving the cashier.

The defendant testified substantially as follows: that in 1905, while he was treasurer, a shortage was discovered in certain accounts of the corporation, and that he was accused as the person responsible for it; that, although he did not in fact take any money, and was not permitted to examine the books to learn what the shortage represented, he agreed to pay to the corporation the sum of $21,000; that thereupon he paid over money he had saved, conveyed his real estate and borrowed funds wherewith to pay this sum, the last payment being made in 1909; that Atteaux, the president of the corporation, orally agreed that, if he (Peakes) would pay in this money and so prevent an investigation of the books, the corporation would repay him; that in 1914, after reminding Atteaux of this agreement and being told that what he should take to repay himself must not show on the books, he began to take these sums of money; that he had paid himself "somewhere about $16,000,” but had no memorandum of the amount and had destroyed his check books. He testified that he believed the corporation owed him the money; that he thought Atteaux, the president, had a right to agree that this money should be repaid to him; and that he only intended to carry out the arrangement made with Atteaux in repaying himself what he believed was due to him.

The principal contention of the defendant is that the presiding judge erred in the instructions he gave and in Ihe refusal to give certain rulings requested on the issue of his criminal intent. Apparently his claim is, that if he took the money in payment of a debt which the corporation owed him and acted under an honest belief that he had a legal right to resort to the methods shown by the evidence, he could not be found guilty.

Plainly there was no error in charging the jury that the defence failéd if there was no debt due to the defendant from the corporation. That was the very basis of his present claim of supposed right to appropriate the money.

Even assuming that, the jury believed the unsupported and contradicted testimony of the defendant as to the alleged indebtedness of the corporation to him for the money he had paid as restitution between 1905 and 1909, that would afford him no legal justification for the fraudulent alteration of the receipts for foreign drafts issued by the bank. The description of these receipts in the indictment as “an accountable receipt for money” seems appropriate, especially as copies of them were set forth in the specifications filed by the Commonwealth, which must be read in connection with the indictment. R. L. c. 218, § 39. Commonwealth v. Howard, 205 Mass. 128, 145. The false making or altering of such instruments would, constitute forgery, within the definition of the statute. Commonwealth v. Lawless, 101 Mass. 32. Commonwealth v. Boutwell, 129 Mass. 124. R. L. c. 209, § 1. See R. L. c. 218, § 22. The “intent to injure or defraud,” referred to in the statute establishing the penalty for forgery (R. L. c. 209, § 1) is a general intent to defraud any one. R. L. c. 218, § 30. Commonwealth v. Costello, 120 Mass. 358. Commonwealth v. Segee, 218 Mass. 501, 504. As to uttering see Commonwealth v. Bond, 188 Mass. 91.

The defendant admittéd that in making the alterations in the receipts from the bank he intended to deceive the cashier and the auditor; the alterations and additions affected the liability of the bank by making it appear that it had obligated itself to transmit a larger sum in foreign money than it had contracted to do and had received a corresponding amount of current funds. R. L. c. 218, § 38. The inevitable effect of the defendant’s acts, knowingly and designedly committed, was to “injure or defraud,” and the inference of intent to defraud is necessarily drawn from those acts. His “belief” that he had a right to resort to forgery and otherjllegal acts in collecting a debt which he claimed the corporation owed him, does not deprive the forgery of its criminal character, nor excuse its commission. Commonwealth v. Tenney, 97 Mass. 50, 59. Commonwealth v. Henry, 118 Mass. 460.

Manifestly the alleged authorization by Atteaux would not purge the defendant’s acts of their criminality. He could not as president or stockholder of F. E. Atteaux and Company, Incorporated, authorize the defendant fraudulently to forge or alter the receipts of the bank. See England v. Dearborn, 141 Mass. 590; United States v. Taintor, 11 Blatchf. C. C. 374.

What we have said with reference to the counts charging the defendant with forgery and uttering are largely applicable to the defendant’s contention under the larceny counts, that he acted under a claim of right and' with an honest purpose. The statute provides that “Whoever steals, or, with intent to defraud, obtains by a false pretence, or whoever unlawfully and, with intent to steal or embezzle, converts or secretes with intent to convert, the money or personal chattel of another, whether such money or personal chattel is or is not in his possession at the time of such conversion or secreting, shall be guilty of larceny. . . .” R. L. c. 208, § 26. The defendant knowingly and designedly obtained the money of the corporation, whose treasurer he was,'by the use of forged receipts and other wrongful acts. The principle in Commonwealth v. McDuffy, 126 Mass. 467, on which he relies, goes no further than this: “that if the sole purpose of a false pretence is to procure from the person deceived the performance of a duty owed by that person to the prisoner, like the payment of a liquidated debt which is in fact due, there is no intention to defraud.” Commonwealth v. Burton, 183 Mass. 461, 466. The McDuffy case is not applicable here, where the alleged debt was not created by any one authorized to bind the corporation, was designedly kept off its books, was tainted with fraud in its origin, and apparently was barred by the statute of limitations.

The charge of the presiding judge was more favorable than the defendant was entitled to in stating, “If the defendant did the acts here, which would otherwise constitute the crimes of forgery, or uttering a forged instrument, or larceny, if the defendant here in good faith honestly did the acts charged without any intent on his part to injure or defraud, then the defendant is entitled to an acquittal.” The criminal intent involved in the charge was an intent to deprive the corporation permanently of its money. The defendant was guilty of larceny on the . evidence, even though the motive which induced him to steal from his employer was the payment of a debt which he claimed to be due him, and even though he believed his conduct was justified. Commonwealth v. Stebbins, 8 Gray, 492. Commonwealth v. Mason, 105 Mass. 163. Berry v. State, 31 Ohio St. 219. Fort v. State, 82 Ala. 50. The Queen v. Spurgeon, 2 Cox C. C. 102. Reg. v. Hall, 3 Cox C. C. 245. Reynolds v. United States, 98 U. S. 145. United States v. Anthony, 11 Blatchf. C. C. 200.

The exceptions to the admission and exclusion of evidence may be disposed of briefly. The question to the defendant on cross-examination, whether he intended to make the stenographer believe he was going to send the letter that he dictated to her (and later destroyed) was competent as tending to show that he was acting with a fraudulent intent, and not honestly, as he claimed. The offer to prove, by the cashier of the Waltham National Bank, that the bank had held certain notes which were signed by the defendant and indorsed by F. E. Atteaux, was excluded rightly. The notes were not produced in court, and the witness stated that he did not know Atteaux’s signature. The application for a fidelity bond, made by the defendant, and purporting to be signed by one Stuart, the vice president of the corporation, was offered for the purpose of contradicting the witness Atteaux. It is enough to say that the document was not signed by Atteaux.

The defendant has shown no error in the conduct of the case.

Exceptions overruled.