Commonwealth v. Moreton

On October 1, 1996, fisherman Henry Souza caught a large bluefin tuna. After surveying buyers, Souza sold the fish to Gulfstream Seafood, Inc. (Gulfstream), owned by Steven Moreton (defendant). Gulfstream promised to pay Souza within one week. The invoice for the transaction was a single piece of paper with the weight of the fish and the word “consignment” written on it. On October 5, Souza learned that the fish had been sold at auction. In the weeks following the sale, Souza called Moreton multiple times and demanded payment. On November 14, Moreton promised to send Souza a check. When Souza received it, he called the bank and was told there were not sufficient funds to cover the amount he was owed. Several days later the issue was still not resolved. Moreton threatened Souza that he would file bankruptcy if he tried to deposit the check. Souza deposited it anyway, and soon after received a notice that Gulfstream had filed bankruptcy. On March 20, 1997, Souza filed a criminal complaint against Moreton for one count of larceny by check and one count of embezzlement larceny. The commonwealth (plaintiff) prosecuted Moreton. During trial, Moreton moved two times for a finding of not guilty, and each time it was denied. The court found that the fish had been placed in consignment, and when Moreton refused to pay Souza the money he was owed for the sale of fish, he committed larceny. Morton was convicted of only one count of embezzlement larceny. Moreton appealed.