Instruction 8.480, Criminal Model Jury Instructions for Use in the District Court

LARCENY BY EMBEZZLEMENT

The defendant is charged with larceny by embezzlement. Section 30

of chapter 266 of our General Laws provides as follows:

“[W]hoever unlawfully,

and with intent to steal or embezzle,

converts, or secretes with intent to convert,

the property of another. . . ,

whether such property is or is not in his possession at the time

of such conversion or secreting,

shall be guilty of larceny. . . .”

In order to prove the defendant guilty of embezzlement, the

Commonwealth must prove three things beyond a reasonable doubt:

First: That the defendant, while in a position of trust or confidence,

was entrusted with possession of personal property belonging to another

person or entity;

Second: That the defendant took that property, or hid it, or converted

it to his (her) own use, without the consent of the owner; and

Third: That the defendant did so with the intent to deprive the owner

of the property permanently.

See the definitions of “property,” “of another,” and “intent to deprive permanently,” and the instructions

on larceny over $250, single scheme and claim of right that may be found in the supplemental

instructions to Instruction 8.520 (Larceny by Stealing). See also Instruction 3.120 (Intent).

Third Nat'l Bank of Hampden County v. Continental Ins. Co., 388 Mass. 240, 244, 446 N.E.2d 380,

383 (1983) (definition of “conversion”); Seelig v. Harvard Coop. Soc., 355 Mass. 532, 543, 246 N.E.2d

642, 649 (1969) (demand and refusal is evidence, but not an element, of larceny); Commonwealth

v. Carson, 349 Mass. 430, 437, 208 N.E.2d 792, 796 (1965) (honest and reasonable claim of right

negates criminal intent); Commonwealth v. Anthony, 306 Mass. 470, 475-477, 28 N.E.2d 542, 545

(1940) (comingling of clients’ and own funds so as to incur risk of loss to former is embezzlement if

done with criminal intent); Commonwealth v. Hull, 296 Mass. 327, 330, 5 N.E.2d 565, 567 (1937) (not

necessary that defendant personally benefitted); Commonwealth v. Snow, 284 Mass. 426, 430-437,

187 N.E. 852, 853-856 (1933) (embezzlement requires trust, as distinguished from debtor-creditor,

relationship; diversion of funds received for collection on another’s behalf is embezzlement);

Commonwealth v. O’Connell, 274 Mass. 315, 319-320, 174 N.E. 665, 667 (1931) (not a defense that

defendant intended to repay misappropriated money); Commonwealth v. Tuckerman, 76 Mass. 173,

187, 205-207 (1857) (same); Commonwealth v. Este, 140 Mass. 279, 284, 2 N.E. 769, 770 (1886)

(offense requires adverse holding or use of property); Commonwealth v. Cooper, 130 Mass. 285, 288

(1881) (not a defense that money was entrusted to defendant for illegal purpose); Commonwealth v.

Barry, 124 Mass. 325, 327 (1878) (embezzlement involves honest receipt of funds later fraudulently

converted); Commonwealth v. Hays, 80 Mass. 62, 64-65 (1859) (unlike larceny, embezzlement does

not require asportation, but does require that property be received in relationship of trust or

confidence); Commonwealth v. Kenneally, 10 Mass. App. Ct. 162, 176-177, 406 N.E.2d 714, 724-725

(1980) (defendant who obtains money legally and then forms intent to keep it is embezzler), aff'd on

other grounds, 383 Mass. 269, 418 N.E.2d 1224, cert. denied, 454 U.S. 849 (1981); Slater v. United

States Fidelity & Guar. Co., 7 Mass. App. Ct. 281, 285, 386 N.E.2d 1058, 1061 (systematic course

of embezzlement by single scheme constitutes one offense), S.C., 379 Mass. 801, 400 N.E.2d 1256

(1979).