Appeals Court (April 5, 2007)

Simple embezzlement is a lesser included offense of embezzlement by a county, city, or town officer.

The defendant was charged with embezzlement by a county, city, or town officer under G.L. c. 266, §51. The indictment was based on the defendant's alleged theft of approximately $44,000 out of parking fines and excise taxes she received in her capacity as an employee of the office of the parking clerk of the city of Lowell. After the judge directed a finding of not guilty on the charge of embezzlement by a county, city, or town officer, he determined that the defendant could be convicted of a lesser included charge of simple embezzlement and instructed the jury accordingly. The defendant was convicted of simple embezzlement.

The defendant appealed arguing that simple embezzlement (G.L. c. 266, §30) is not a lesser included offense because the identity of the owner of the property in each offense is different; the victim under § 30, "another," cannot be "a city, town or county" as defined in § 51. The court disagreed. The Commonwealth is not required to prove the identity of the owner of the stolen property in order to satisfy its burden with respect to embezzlement. The Commonwealth must show only that the defendant was not the actual owner. Therefore, the crime of simple embezzlement is a lesser included offense of embezzlement by a county, city, or town officer.