120

ly converts the property to his own use. So, if a person delivers goods or money to another merely to be examined or dealt with in some way in his presence, and then returned, and not with intent to vest any right of possession in the other, the other has the bare custody, and may be guilty of larceny in converting the goods to his own use. And it can make no difference that his intention was honest when he received the goods or money into his hands.121 Such cases arise when a merchant hauds a customer goods to examine with a view to purchasing, or to take upon paying for them, and he feloniously carries them away; 122 where money is handed to a person with the understanding that he is to take out a certain amount as a loan or in payment for goods, and return the change, and he keeps the whole amount;123 where a person requests change for a bill, and,

1201 Hale, P. C. 506; Anon., Lib. Ass. 137, pl. 39, Beale's Cas. 514; Com. v. Lannan, 153 Mass. 287, 26 N. E. 858, 25 Am. St. Rep. 629, Beale's Cas. 521.

121 It was said in Com. v. O'Malley, 97 Mass. 584, Beale's Cas. 518, that "if the owner puts his property into the hands of another, to use it or do some act in relation to it, in his presence, he does not part with the possession, and the conversion of it, animo furandi, is larceny." See Rex v. Sharpless, 1 Leach, C. C. 92, Beale's Cas. 611.

122 Rex v. Chissers, T. Raym. 275, Beale's Cas. 515; Reg. v. Slowly, 12 Cox, C. C. 269, Beale's Cas. 516; Com. v. Wilde, 5 Gray (Mass.) 83; Rex v. Sharpless, 1 Leach, C. C. 92, Beale's Cas. 611. See post, § 318c (2).

123 Com. v. O'Malley, 97 Mass. 584, Beale's Cas. 518; Com. v. Flynn, 167 Mass. 460, 45 N. E. 924, 57 Am. St. Rep. 472; Fitzgerald v. State, 118 Ga. 855, 45 S. E. 666; Hildebrand v. People, 56 N. Y. 394, 15 Am. Rep. 435, Beale's Cas. 519.

There are some cases in which it has been held that if a person gives another, not his servant, money to go out and get changed for him, or to buy goods for him, and return the goods and change, and the other, having received the money without felonious intent, afterwards forms such intent, and converts the money to his own use, he is not guilty of larceny. Reg. v. Thomas, 9 Car. & P. 741, Mikell's Cas. 763; Reg. v. Reynolds, 2 Cox, C. C. 170. The better opinion, however, is that, in such a case, the bare custody only is parted with; that the person receiving the money is pro hac vice in the position of a mere servant, and that he is therefore guilty of larceny. See Hilde

on receiving the change, refuses to hand over the bill;124 where the holder of a note or bond hands it to the maker or obligor, or to another, merely to examine or indorse a payment, and the other destroys it or refuses to return it.125 Many other illustrations of this principle are to be found in the reports.126

318. Consent of the Owner to Part with the Property.

(a) In General.--In considering the consent of the owner to part with the possession of his property, it was shown that ordinarily a bailee cannot be guilty of larceny if he had no felonious intent when he obtained possession, but that it is otherwise if he then had such intent.127 These cases are to be distinguished from cases in which the owner consents to part with the property in the goods, as distinguished from the possession; that is, with the title or ownership. The rule is well settled that, if the owner's intention is to part with the right of property in goods in delivering them to another, and the delivery is absolute, and not conditional, the other cannot be guilty of larceny. And it can make no difference in such a case that the property is obtained with fraudulent intent, and by means of false pretenses. As was said in an Ohio case: "Where the owner intends to transfer, not the possession merely, but also the title to the property, although induced thereto by

brand v. People, supra; Murphy v. People, 104 Ill. 528; Justices v. People, 90 N. Y. 12; Reg. v. Smith, 1 Car. & K. 423.

124 State v. Anderson, 25 Minn. 66, 33 Am. Rep. 455. And see Reg. v. McKale, 11 Cox, C. C. 32.

125 People v. Call, 1 Denio (N. Y.) 120, 43 Am. Dec. 655, Mikell's Cas. 767; Reg. v. Rodway, 9 Car. & P. 784; Dignowitty v. State, 17 Tex. 521, 67 Am. Dec. 670.

126 People v. Johnson, 91 Cal. 265, 27 Pac. 663; Com. v. Lannan, 153 Mass. 287, 26 N. E. 858, Beale's Cas. 521; People v. McDonald, 43 N. Y. 61, Mikell's Cas. 701; People v. Montarial, 120 Cal. 691, 53 Pac. 355, Mikell's Cas. 772; Reg. v. Johnson, 5 Cox, C. C. 372; Levy v. State, 79 Ala. 259; State v. Fenn, 41 Conn. 590; Huber v. State, 57 Ind. 341.

127 Ante, § 316.

the fraudulent pretenses of the taker, the taking and carrying away do not constitute larceny. The title vests in the taker, and he cannot be guilty of larceny. He commits no trespass. He does not take and carry away the goods of another, but the goods of himself."128 This, as a general principle, is too well settled to admit of controversy, but there has been difficulty in applying the rule, and in determining whether, in a particular case, the intention was to part with the property or merely with the possession, and there is some conflict in the decisions resulting from a failure to properly draw the distinction.

The principle has been applied in numerous cases in which goods have been obtained by false pretenses. Thus, it has been held not to be larceny for a person to obtain property by falsely pretending to have been sent by another person for it,129 or for a person to obtain property on the pretense of purchasing it, and on a promise to pay for it, which he does not intend to perform,130 or to purchase property and pay for it with forged

128 Kellogg v. State, 26 Ohio St. 16. And see Smith v. People, 53 N. Y. 111, 13 Am. Rep. 474, Beale's Cas. 653, where it is said: "If, by trick or artifice, the owner of property is induced to part with the naked possession to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but the right of property also, the offense of the party obtaining them will not be larceny, but that of obtaining goods by false pretenses." See, also, Rex v. Atkinson, 2 East, P. C. 673, Beale's Cas. 660; Rex v. Moore, 2 East, P. C. 679; Reg. v. Riley, 1 Cox, C. C. 98; Rex v. Robson, Russ. & R. 413, Mikell's Cas. 783; Reg. v. Solomons, 17 Cox, C. C. 93, Beale's Cas. 668; Reg. v. Bunce, 1 Fost. & F. 523, Beale's Cas. 651; Reg. v. Prince, L. R. 1 C. C. 150, Beale's Cas. 660; Reg. v. Williams, 7 Cox, C. C. 355; Reg. v. McKale, 11 Cox, C. C. 32; Reg. v. Twist, 12 Cox, C. C. 509; Reg. v. Hollis, 15 Cox, C. C. 345; Wilson v. State, 1 Port. (Ala.) 118; Kelly v. People, 6 Hun (N. Y.) 509; Ross v. People, 5 Hill (N. Y.) 294; People v. Sumner, 33 App. Div. 338, 53 N. Y. Supp. 817, Mikell's Cas. 787; Steward v. People, 173 Ill. 464, 50 N. E. 1056.

129 Rex v. Adams, Russ. & R. 225.

130 Rex v. Harvey, 1 Leach, C. C. 467.

bills.1 131 And there are many other similar cases.132 132 The principle applies equally to the obtaining of money by false pretenses. Thus, it has been held not to be larceny to obtain money from a bank or individual on a forged or counterfeit order or letter;133 to make a pretense of finding a valuable article and sell it to another, it being in fact worthless;183a to make a pretense of putting three shillings into a purse and trade it for one shilling;134 to obtain money in payment of a sham bet, by pretending that the bet was fair and was lost.135 So, if a man fraudulently induces another to lend him money, the other not expecting to get the same money back, but intending to part with his property therein, he is not guilty of larceny, though he may have obtained the money by false pretenses.136

131 Rex v. Parkes, 2 Leach, C. C. 614, 2 East, P. C. 671, Mikell's Cas. 774. See, also, Reg. v. Bunce, 1 Fost. & F. 523, Beale's Cas. 651. Obtaining a loan of money by fraudulently depositing spurious pieces in the form and semblance of gold coin as security is not larceny. Kelly v. People, 6 Hun (N. Y.) 509.

132 See Rex v. Jackson, 1 Mood. C. C. 119, where a pawnbroker was induced to surrender a pledge by giving him a package falsely represented to contain property, to be held instead; and Jacob of Bedford's Case, Sel. Pl. Jewish Exch. (Sel. Soc.) 125, Mikell's Cas. 773, where money was obtained on a fraudulent pretense of selling plates fused from coin clippings.

133 Reg. v. Prince, L. R. 1. C. C. 150, Beale's Cas. 660; Rex v. Atkinson, 2 East, P. C. 673, Beale's Cas. 660.

133a Reg. v. Wilson, 8 Car. & P. 111, Mikell's Cas. 779.

134 Reg. v. Solomons, 17 Cox, C. C. 93, Beale's Cas. 668; Reg. v. Williams, 7 Cox, C. C. 355, Mikell's Cas. 786.

135 Rex v. Nicholson, 2 Leach, C. C. 610, 2 East, P. C. 669, Mikell's Cas. 781; Hindman v. State (Ark.) 81 S. W. 836.

186 Rex v. Summers, 3 Salk. 194, 2 East, P. C. 668; Rex v. Atkinson, 2 East, P. C. 673, Beale's Cas. 660; Lewer v. Com., 15 Serg. & R. (Pa.) 93; Kellogg v. State, 26 Ohio St. 16; Ennis v. State, 3 G. Greene (Iowa) 67; Welsh v. People, 17 Ill. 339; Wilson v. State, 1 Port. (Ala.) 118.

Thus, in Rex v. Atkinson, supra, it was held that it was not larceny to obtain money by sending a forged letter asking for a loan. In Kellogg v. State, supra, the accused, by falsely pretending that he had a freight bill to pay, and that he did not wish to pay it in gold, which he represented that he had, induced the prosecutor to let

(b) Delivery by Servant or Agent.-Whether or not it is larceny to obtain goods from a servant or agent of the owner, who in delivering them intends to part absolutely with the property in the goods, depends upon the extent of the servant's or agent's authority. If he has general authority to part with his master's or principal's property, his act in doing so is the master's or principal's act, and his consent the master's or principal's consent, and the person so obtaining the property is not guilty of larceny if he would not have been guilty had the delivery been

him have $280 in currency, with which to make the payment. He promised to repay the money when he should go to the bank, where he said he had the money, and he gave the prosecutor what he falsely represented to be $280 in gold, to be held as security. He then ran off with the money. It was held, correctly, that this was not larceny, as the prosecutor intended to part with the property in the money, and not merely with the possession.

There are some cases in conflict with those cited above, but they cannot be sustained. One of these is People v. Rae, 66 Cal. 423, 6 Pac. 1, 56 Am. Rep. 102. In this case it appeared that the defendant, while a passenger on a railroad train, obtained from the prosecutor, who was a fellow passenger, $160, with which to pay a pretended express charge. In order to obtain the money, he falsely represented that he would go to the baggage car and get some money, and repay the loan, handing over a bogus United States bond as security in the meantime. It was held that he was guilty of larceny, on the ground that the prosecutor did not intend "to part with his ownership of the money." It is clear, however, that this is just what he did intend, for he made a straight out and out loan of the money, with the intention of having the defendant pay it out on his own pretended indebtedness, and the defendant was therefore guilty of obtaining the money by false pretenses and not of larceny. Two of the six judges dissented, and it will be seen, on an examination of the cases cited in support of the decision,-Com. v. Berry, 124 Mass. 325, and Loomis v. People, 67 N. Y. 322, 23 Am. Rep. 123,-that neither of them sustain it. The case is not like those hereafter referred to, in which money or property is delivered conditionally, with intent that the "property" shall not pass until the condition is performed, as where money is delivered for goods to be delivered in return, or to be changed, or when goods are handed over for ready money, which is not paid. See post, § 318c (2). Grunson v. State, 89 Ind. 533, 46 Am. Rep. 178, was a case of conditional delivery, and this distinguishes it from People v. Rae, supra.