CHAPTER V.

WHO MAY COMMIT LARCENY, AND HOW.

$30. Larceny by bailee; common law and statutory rules. 31. Who may be prosecuted as a bailee, generally.

32. Depositary.

33. Hirer or borrower of a chattel.

34. Carrier, factor, or other bailee for special purpose.

35. Larceny by agent, servant or clerk.

36. Larceny by co-tenant, lessee, cropper, etc.

37. Larceny by maker of note, bond, etc. 38. Larceny by paramour of owner's wife.

39. Larceny by public officers.

§ 30. Larceny by bailee; common law and statutory rules. While it is true that larceny may be committed of goods obtained from the owner by delivery, if it be done animo furandi;' yet, at common law, a bailee of goods could not be guilty of larceny by a fraudulent conversion of them," even though he obtained possession by fraud.' So, also, at common law an indictment for larceny cannot be maintained when it appears that the goods charged to have been stolen, were transferred, so as to create any trust or right of property; and this is a question of fact for the jury. Where property is voluntarily delivered to a person who has not generally the care of his employer's property, and such person converts the property to his own use, it is embezzlement and not larceny. Thus where one intrusts personal property to another to procure a loan on it, and the latter procures the loan, but appropriates the proceeds, this is not larceny of the property pledged.*

State v. Gorman, 2 N. & McC. 90; 10 Am. Dec. 576.

2 Wright v.

8

Lindsay, 20 Ala. 428.

People v. Call, 1 Denio 120; 43 Am. Dec. 655.

Wilson v. State, 1 Port. 118.

Ennis v. State, 3 Greene 67; State v. Fann, 65 N. C. 317.

People v.

Cruger, 102 N. Y. 510; 55 Am. Rep. 830.

In Georgia it is a criminal offense to fraudulently convert to one's use an article intrusted to him, or to dispose of the article without the owner's

§ 31. Who may be prosecuted as a bailee, generally.If the owner of goods alleged to have been stolen parts with both the possession and the title of the goods, to the alleged thief, then neither the taking nor the conversion is felonious. It can but amount to a fraud. If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending that the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a larceny.' Thus one to whom a mare was delivered to sell may be indicted for larceny. as a bailee.' So also the defendant in execution is a bailee, guilty of larceny under a statute providing that "if any person, being a bailee of any property, shall fraudulently take or convert the same to his own use," he shall be guilty of larceny, where his personal property was purchased at the sheriff's sale by the plaintiff in execution, who permitted the defendant to retain and use it until demanded, and the defendant, being so intrusted, appropriated it to his own use." In England, an infant, although incapable of entering into a contract of bail

consent, and without paying him its full value on demand.-Soule v. State, 71 Ga. 267.

In Illinois, one may be convicted on proof either that he received the property with intent to steal it, or by fraud, or that the bailment has been determined by some tortious act, and he has since converted the property to his own use.—Johnson v. People, 113 Ill. 99. In Missouri, an intent to steal, existing at the time of obtaining the property, is not an essential element of the crime of larceny by a bailee, as defined by Wagner's Mo. Stat. 459, § 37; otherwise, of the crime of larceny prohibited by § 25.-State v. Stone, 68 Mo. 101.

To bring a case of larceny by bailee within the Pa. Crimes Act of 1860, § 108, in addition to the fraudulent disposal of the property, it must be proved that there was such a delivery of the property as to divest the owner of possession, and vest it in the prisoner for some time, and that at the expiration of that time the identical property was to be restored to the owner.-Krause v. Commonwealth, 93 Pa. St. 418.

1 Murphy v. People, 104 Ill. 528; Welsh v. People, 17 Ill. 339; Stinson v. People, 43 Ill. 397; State v. Watson, 41 N. H. 533.

Commonwealth v. Maher, 11 Phila. 425.

8 Com. v. Chathams, 50 Pa. St. 181; 88 Am. Dec. 539.

ment, may be convicted of larceny, as bailee, under the 24 and 25 Vict., c. 96, § 3.1 On the other hand, one disposing of another's property under a well-founded belief that he was entrusted therewith for that purpose, is not guilty of larceny,' and one who had agreed to conduct a business, pay expenses, and divide the net profits, was held not to be liable for larceny as a bailee for failing to account. The remedy was by a civil

action."

§ 32. Depositary.— Where personal property is left in the possession of another through inadvertence, and the latter knowing the owner, animo furandi, conceals it, he is guilty of larceny. And it is larceny in a servant or bailee to open a package intrusted to his care, and take away any part of the goods therein, and dispose of them to his own use animo furandi. But finding an article by direction of the owner, and taking it as his bailee, but afterwards concealing it, and denying the finding, is but a breach of bailment, and not lar

1 Regina v. Macdonald, 33 W. R. 735.

The prosecutor advanced money to prisoner on deposit of a title deed to property, and on a legal mortgage of the same property. Prisoner obtained from prosecutor the title deed on the representation that he had found a person who would take a transfer of the mortgage; and he then obtained £140 from another person on deposit of the deed, and appropriated the money to his own use. The judge directed the jury that the prisoner was a bailee of the deed. Held, that the direction was right, and that prisoner was properly convicted of larceny as a bailee.-Regina v. Tonkinson, 44 L. T. 821.

* State v. Barrackmore, 47 Iowa, 684. The owner of horses delivered them to defendant, under an agreement that the defendant was to buy them, the horses to remain the property of the owner till paid for, and to be returned at a specified period if not paid for. The defendant refused to pay for them, or return them. Held, not larceny, nor larceny by a bailee.-Krause v. Com. 93 Pa. St. 418; 39 Am. Rep. 762.

* Commonwealth v. Superintendent, 9 Phila. 581.

4 People v. McGarren, 17 Wend. 460.

'State v. Fairclough, 29 Conn. 47; 76 Am. Dec. 590. A. left his trunk unlocked, and in which there was money, with B., telling him to keep the room secured. In A.'s absence B. took a double-eagle and applied it to his own use. Held, to be larceny. If the money itself had been handed to B. to keep safely, and he had applied it to his own use, it would have been only a trespass, but here the trunk, and not the money, was left with him. -Robinson v. State, 1 Cold. 120; 78 Am. Dec. 487.

ceny.' The mere possession of another's property with intent to steal it is no larceny, until the intention has ripened into the act." And if one having charge of property converts it to his own use in an honest belief that he is a part owner, he cannot be convicted of larceny, although the belief is erroneous."

$33. Hirer or borrower of a chattel.-Larceny is committed by one who obtains possession of personal property by consent of the owner, under the pretense of hiring it for a temporary purpose, when in fact he intends thereby to wholly deprive the owner of it, and he actually puts it to a different purpose, although he does not sell or dispose of it; and the rule is the same whether he conceives the design of stealing it at the time he gets possession of the thing or afterwards, and carries it away with that design.' So where a person borrows a horse by falsely and fraudulently pretending that he wants to use him a short time for a temporary purpose, and will return him to the owner at a specified time, when in fact he intends to and does wholly deprive the owner of the horse, and appropriates him to his own use, there is such a taking and carrying away as to constitute larceny; and the fact that he afterwards changes his mind and returns the horse, does not purge the offense of larceny.' If, however, A. borrow of B.

1 State v. England, 8 Jones N. C. 399; 80 Am. Dec. 334.

2 State v. Newman, 9 Nev. 48.

Phelps v. People, 55 Ill. 334.

4 State v. Humphrey, 32 Vt. 569; 78 Am. Dec. 605; State v. Williams, 35 Mo. 229; Commonwealth v. Smith, 1 Pa. L. J. Rep. 400; Smith v. State, 35 Tex. 738.

5 Norton v. State, 4 Mo. 461; Starkie's Case, 7 Leigh, 752. Contra, Felter v. State, 9 Yerg. 397.

• State v. Woodruff, 27 Pac. Rep. 842; Coldwell v. State, 59 Tenn. 429; Brooks v. State, 26 Tex. App. 184; Williams v. State, 16 S. W. Rep. 760. In Pennsylvania, where personal property having been sold on execution was bought by a friend of the execution debtor, who loaned it to him to use until demanded, and the execution debtor sold and consumed it, it was held that he was guilty of larceny.-Com. v. Chathams, 50 Pa. St. 181. A person while stopping at a hotel, was handed a gun by the landlord, who told him he might go and shoot birds with it, which he did for a short time, and then went off with the gun and traded it away. Held, larceny.-Richards

v. Com., 13 Grat. 803.

State v. Scott, 64 N. C. 586.

twenty dollars, with the same intent, it is not larceny, but fraud. But if the money be obtained by A. by trick or contrivance, with the intent at the time to steal it, it is larceny.' The reason given for the distinction being that in the case of the money the specific thing loaned is not expected to be returned, but only its equivalent in value, the title passing to the borrower.

§ 34. Carrier, factor, or other bailee for special purpose. (a) Carriers. At common law, if a carrier opens a package of goods and takes away and disposes of part of them to his own use, animo furandi, it is larceny; but not if he takes away and disposes of the entire package.'

(b) Factors. It being the usual course of business for a factor to mix the proceeds of his sales with his own funds, and to use them indiscriminately, to make out larceny from the mere use of the article it must appear that the use was fraudulent, and that it was used under such circumstances as to show an intent to deprive the owner of his property."

(c) Other bailee for special purpose.-If the owner of goods parts with them for a special purpose, and the person who receives them avowedly for that purpose has a fraudulent intention at the time to convert the goods to his own use, and does so convert them, it is larceny. Thus a person to whom a mare was delivered to sell may be indicted for larceny as a

2 State v. Fairclough, 29 Conn. 47; Robinson v. State, 1 Cold. 120; 78 Am. Dec. 487. But in Massachusetts, it has been held that if a person to whom a wagon load of goods, consisting of several packages, is delivered to be transported, fraudulently takes away one of the packages, such taking is larceny.-Com. v. Brown, 4 Mass. 580. And in New York the wrongful taking from a canal boat by the captain and owner of the boat, of bars of iron which had been intrusted to him for transportation is larceny, and not embezzlement.-Nichols v. People, 17 N. Y. 114, Denio, J., dissenting. Where it appeared that a common carrier fraudulently opened certain packages and casks and took therefrom a part of their contents, and converted the same to his use, but it did not appear that the contents were feloniously carried away, such offense was held to amount to a trespass, and not larceny.-Cook v. Darby, 4 Manf. 444; 6 Am. Dec. 529.

Snell v. State, 50 Ga. 219.

Lever v. Com., 15 Serg. & R. 93; State v. Gorman, 2 Nott & McC. 90.