BOARD OF ASSESSORS OF IPSWICH vs. WALTER A. SMITH, JR. & another.

COMMONWEALTH vs. CHARLES C. SLOANE.

357 Mass. 778

June 3, 1970

On September 13, 1968, the defendant Sloane, treasurer of the Grafton State Hospital, was indicted on two counts charging larceny from the Commonwealth. The first count alleged larceny on or about June 27, 1967, in the sum of $671.67. The second count alleged larceny on or about August 17, 1965, in the sum of $211.34. On October 24, 1969, Sloane was found guilty by a jury on both counts on evidence tending to show that he received the proceeds of two checks unlawfully indorsed by a person other than the payee. Over objection the judge permitted a witness to testify that she saw the defendant "around" November 28, 1967, and in July, 1965, enter a vault under his control and "remove . . . cash." The evidence was improperly admitted to "establish

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intent" on the counts in the indictment and was otherwise without probative value. These separate and independent acts, if criminal, should themselves be the subject of indictment. They cannot be used as evidence to convict of the crimes charged. Commonwealth v. Stone, 321 Mass. 471 , 473, and cases cited. Commonwealth v. Cutler, 356 Mass. 245 , 248.

Judgments reversed.