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Theft by embezzlement must be an intentional and fraudulent appropriation and for conviction it must be beyond a reasonable doubt that the defendant had a criminal intent to defraud.
On a citizen complaint charging Steven Moreton with larceny by check and larceny over $ 250, a judge of the Orleans District Court found the defendant not guilty of the check charge and guilty of the larceny. Moreton was placed on one year's administrative probation, and was ordered to pay restitution in the amount of $ 2,915.89. The property alleged to have been stolen was the proceeds from the sale of a blue fin tuna, delivered to the defendant for sale in Japan. On appeal, Moreton claimed his motion for a required finding of not guilty, Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), filed at the close of the Commonwealth's case and renewed at the close of all the evidence, should have been allowed because the Commonwealth failed to prove the requisite criminal intent.
Did the Commonwealth prove the requisite criminal intent?
The court reversed the judgment of conviction. The court found that there was no direct or circumstantial evidence of requisite criminal intent: evidence of affirmative effort by defendant to mislead complainant, the owner of the property, warranting an inference of intent to steal or defraud. At best, evidence showed that Moreton accepted delivery of the fish, agreed to pay proceeds to complainant within a week of selling the fish, did not pay complainant on the promised date or in the weeks thereafter, and then declared bankruptcy without having paid complainant. Moreton’s mere failure to pay complainant within agreed time in these circumstances was not sufficient to support an inference of larcenous intent. Judgment of conviction reversed.