Commonwealth v. Hussey.

AMES, J. In this indictment the defendant is charged with the embezzlement and fraudulent conversion to his own use of "divers promissory notes payable to the bearer on demand, current as money in said Commonwealth, of the amount and of the value of sixty-five dollars, a more particular description of which is to the jurors unknown." As decided in Commonwealth v.

Sawtelle, 11 Cush. 142, and Commonwealth v. Duffy, Ib. 145, an indictment in substantially that form is sufficient to warrant a judgment upon a general verdict of guilty. And it was held in both of those cases, that upon proof of the larceny of part of the articles or things alleged to have been stolen, the defendant might well be convicted, provided the jury find that part of the value alleged in the indictment lay in the articles proved to have been stolen.

In the case at bar, the evidence that proved the embezzlement proved that the amount and value of the notes embezzled was $70, and not $65. And it is insisted on the part of the defendant that, as the indictment alleges an excuse for not giving a more specific description of the notes, the amount and value are made a part of the description of the offence and essential to its identity, in the same manner as an unnecessary averment as to the color of a horse alleged to have been stolen, becomes a matter of description which must be proved as alleged. In other words, that the grand jury have described the property merely by the amount and value, and that a variance in that respect entitles the defendant to an acquittal. But this objection is in our judgment untenable. The two cases above cited make it certain that where the crime is described as it is in this indictment, it is not a material variance to prove the larceny of less than the alleged amount and value. The number stated may be much larger than appears in proof, and yet furnish no ground of objection on account of variance. The amount and value in this indictment do not appear to us to be descriptive of the offence, in such a manner as to fix its identity. The property is described as "divers promissory notes, payable to bearer, current as money in this Commonwealth." No attempt is made to give the number or denomina tions of the notes, but it was necessary to state that they had a

Commonwealth v. Cullen.

value, in order that they should be subjects of larceny; and in the case of notes current as money, the amount and value would ordinarily be synonymous terms. Except on the ground of variarce, the defendant cannot object that less is charged against him than was proved. If proof of less than the amount and value charged is not a variance, it is difficult to see why proof of more should be. If the indictment had contained a more particular description, the proof must have been limited accordingly. But it was not necessary to give a more particular description, for that given was already sufficient to support a judgment; and the allegation that a more particular description was unknown to the grand jurors was therefore an immaterial allegation, and proof that a more particular description was in fact known to them did not create a fatal variance between the indictment and the proof. We have no difficulty in overruling the motion to quash and the motion in arrest of judgment. The fiduciary relation essential to characterize the crime is sufficiently expressed by the averment that the property was delivered to the defendant upon the trust and confidence that he would return it to the owner on demand. Commonwealth v. Hays, 14 Gray, 62. Commonwealth v. Concannon, 5 Allen, 502. Commonwealth v. Butterick, 100 Mass. 1. This must mean on demand by or for the owner. A fraudulent conversion to the defendant's own use would be embezzlement, whether demand were made or not, and, of course, such demand need neither be averred nor proved.

Exceptions overruled.

COMMONWEALTH vs. JAMES CULLEN.

▲ police officer held out to a prisoner inducements to confess, and on the next day the prisoner confessed to another police officer. Held, that the refusal of the judge at the trial for the offence to instruct the jury that they ought to give no weight to the confession, if they thought it was made under tae influence of the inducements, gave the defendant a good ground of exception.

INDICTMENT for larceny from the person. At the trial in the Superior Court in Suffolk, before Allen, J., there was no direct

Commonwealth v. Cullen.

evidence of the taking, and no stolen property traced to the possession of the defendant. The evidence was all circumstantial, and confined to the conduct of the defendant and the statements made by him to two police officers, named Weir and Healey, after his arrest, as testified to by them.

Weir testified that he arrested the defendant in New York, and brought him on the cars to Boston; that on the way he said to the defendant: "If you will get the money it will not be used as evidence against you; I want to get back the money." Healey had previously testified to admissions of the defendant made to him at the station-house in Boston after the arrival of the defendant from New York on the day after the conversation with Weir. It did not appear that Healey had held out any inducement to the defendant.

The defendant, after Weir had testified, objected that the admissions to Healey were inadmissible, because made after the inducement held out by Weir, and so presumed to be made under the influence of that inducement. And he asked the judge to rule, “that the statement made by Weir to the defendant on the cars, to the effect that if the defendant would get the money it should not be used against him, was an inducement, and being an inducement, that all admissions made subsequently by the defendant, whether to Weir or Healey, should not be allowed to weigh against the defendant."

The judge declined so to rule, and ruled that the jury might consider the defendant's admissions to Healey made subsequently to the inducement, and to Weir prior to the inducement, and gave them no other instructions, either as to the weight to be given to the statements made by the defendant to Weir and Healey, or as to the ruling requested by the defendant.

The jury returned a verdict of guilty, and the defendant al. leged exceptions.

G. W. Searle & J. W. Mahan, for the defendant.

W. G. Colburn, Assistant Attorney General, (C. R. Train Attorney General, with him,) for the Commonwealth. The confessin to Healey was admissible. Rex v. Richards, 5 C. & P. 318. Rex v. Lloyd, 6 C. & P. 393. State v. Potter, 18 Conn. 166. Moore's Case, 2 Leigh, 701.

Comm nwea th v. Cullen.

AMES, J. The assurances given to the defendant by the officer in whose custody he was brought from New York were of such a character that any confession which the defendant might have made during the journey, would have been inadmissible in evidence against him. It would have been a clear case of a confession obtained under such inducements that it could not be received. The ground for not receiving such evidence is that it is considered as made under a bias, and cannot safely be relied upon as a free and voluntary confession. Commonwealth v. Morey, 1 Gray, 461. The bill of exceptions shows that the defendant made no confes. sion during the journey, but that on the next day and while in the custody of another officer he made certain admissions, which were received by the court as evidence at the trial. If what the defendant said in this conversation with the second officer was so connected with the inducement held out by the first officer as to be a consequence of it, and to have been produced by it, injustice was done to him by allowing it to be given in evidence, without further explanation and caution than appears to have been given. In 2 Stark. Ev. 49, it is laid down that "where a confession has once been induced by such means," (threats or promises,) "all subsequent admissions of the same or of the like facts must be rejected, for they may have resulted from the same influence." The question of course must be, was the improper influence or inducement the cause of the confession.

The case finds that the evidence against the defendant was wholly circumstantial, and confined to his conduct and the statements made by him to the police officers, after his arrest. In such a state of things, under the rule as recognized in Commonwealth v. Cuffee, 108 Mass. 285, the statements to the second officer were admissible; but the jury should have been instructed that if an inducement in the shape of promises or threats had been brought to bear upon him by an officer, it would be their duty to allow no weight or influence against the prisoner to any statements which he afterwards made to another officer, provided they were satisfied that these statements were made under the influence, and as the result and consequence, of such inducement; and that the length of the interval between the two, the opportunity the de

Commonwealth v. Bean.

fendant might have had for consideration, and the surrounding circumstances generally, were all to be taken into account in esti mating the duration and effect of such previous inducement. State v. Potter, 18 Conn. 166. Sherrington's Case, 2 Lewin, 123. Rex v. Cooper, 5 C. & P. 535. Commonwealth v. Taylor, 5 Cush. 605.

Exceptions sustained.

COMMONWEALTH vs. BENJAMIN F. BEAN.

On an indictment for an indecent assault upon A. B., A. B. having testified that the defendant took indecent liberties with her person, on a day when he took her to drive, and upon cross-examination, that, on a subsequent day, she did not tell the defendant that she would kiss him if he would take her to drive, the defendant may show that she did so tell him.

INDICTMENT for an indecent assault committed upon Caroline E. Howe on August 21, 1872.

At the trial in the Superior Court in Suffolk, before Bacon, J., Caroline E. Howe testified that she was the wife of Frank B. Howe; that on August 21, 1872, the defendant took her to drive, visited a house belonging to him, and there, against her consent, took indecent liberties with her person. On cross-examination the defendant asked her if she had not, in September 1872, in the presence of a Mrs. Brownlow, asked him to take her to drive, and said that she would kiss him if he would. She answered that she did not think she ever had, but would not swear she had not. The defendant offered to prove by the testimony of Mrs. Brownlow that she had so asked and said, but the judge excluded it.

The jury returned a verdict of guilty, and the defendant alleged exceptions.

J. H. Bradley & S. A. Bolster, for the defendant.

W. G. Colburn, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the Commonwealth.

BY THE COURT. The testimony of Mrs. Brownlow ought to have been admitted. Exceptions sustained.