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 Phalen's Criminal cases :being a seiecti 
 
 3 1924 020 133 264 
 
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PHILEN'S CRIimiL CASES: 
 
 BEING 
 
 A SELECTION OF AUTHORITIES 
 
 UPON THE SUBJECTS OF 
 
 EMBEZZLEMENT, FALSE PRETENSES, 
 LARCENY, ROBBERY, ETC., 
 
 WITH COMMENTS, NOTES AND REFERENCES. 
 
 TOL. 1. 
 
 By ALBEET PHALEN, 
 
 Attorney at Law. 
 
 CHICAGO: 
 
 GEO. K. HAZLITT & CO., PRINTERS, 1^2 AND 174 CLARK STREET. 
 
 1885. 
 
Entered according to Act of Congress, in the year 1884, by 
 
 ALBERT PHALEN", 
 In the Office of the Librarian of Congress, at Washington. 
 
 re 3 
 
TABLE OF CASES. 
 
 A 
 
 Allen, People v 
 
 Anderson v. State.. 
 
 . 83 
 .371 
 
 B 
 
 Baker V-. State 179 
 
 Bazely, E. V 14 
 
 Beall V. State 325 
 
 Berry, Com. v 109 
 
 Bird, Reg. v.. 168 
 
 Boody, State v.... 128 
 
 C 
 
 .298 
 
 Campbell v. People 
 
 Carter v. State B6 
 
 Cherry, R. v 264 
 
 Cory V. State 105 
 
 Crockett v. State 247 
 
 D 
 
 Balton, People v 59 
 
 Davis, State v 146 
 
 De Banks, Reg. v 176 
 
 Dopeke, State V 257 
 
 Fenn, State v 248 
 
 Plynn, State v 272 
 
 Polkes, Queen V 87 
 
 Poster, State V 54 
 
 Gaddyv. State 53 
 
 Goodall V. State 237 
 
 Goodhue V. People 112 
 
 Grady, Com. v 369 
 
 Graves V. State 292 
 
 H 
 
 Harrison, R. v 316 
 
 Harrison, R. v 317 
 
 Hartwell, U.S.v 93 
 
 Haynes, People v 833 
 
 Hazelton 401 
 
 Hennessey, People v 99 
 
 Hennessey, State v 224 
 
 Husband, People V 70 
 
 Irwin V. State 334 
 
 Jacobs, People v 355 
 
 Jones V. State 373 
 
 Jones, State V 412 
 
 Keller V. State- 361 
 
 Kent, State v 78 
 
 Ker V. People _ 25 
 
 King v. State 269 
 
 Kribs V. People 18 
 
 Kribsv. People 76 
 
 Lapire, R. v 322 
 
 Lara, R. v 332 
 
 Lavandar, R. v.. 181 
 
 Leigh, R. v.. 309 
 
 Loomis, People v 171 
 
 Lowe V. State 233 
 
 Lowenthal v. State 138 
 
 Luckis, Com.v _ 266 
 
 Lymus, State v 306 
 
 m 
 
 Maranda v. State 354 
 
 Martinez v. State 314 
 
 McCloskeyv. People 323 
 
 Middleton, Reg.v 189 
 
 Murphy V. People 157 
 
 Negus, Queen V 80 
 
 Nichols V. People 183 
 
 Noregea v. People 376 
 
 » 
 
 R. V. Paradice 182 
 
 Reside V. State 58 
 
 Schlinger v. People 286 
 
 Sherman, People v 91 
 
 (iii) 
 
Table of Cases. 
 
 Simco V. state - 20 
 
 Simpson v. State .- - 243 
 
 Skiff V. People.. 358 
 
 Slowly, Reg. V 168 
 
 Smith, People V 388 
 
 Smith, State V 277 
 
 Stanley V. State -382 
 
 Stevens V. State 319 
 
 Swan V. People. . ..... 295 
 
 T 
 
 Taiutor, U. S. v 44 
 
 Thatcher, State V 393 
 
 Thompson, R.v 265 
 
 Titus, Com. V 294 
 
 Walker, State V. 281 
 
 Ware v. State 362 
 
 Warmonth v. Com 143 
 
 Waters v. People 153 
 
 Waters V. State 328 
 
 Watkins V, State 274 
 
 Watson, R. v.. .... 13 
 
 Webb V. State..... 23 
 
 Webb V. State. -J ...283 
 
 Wheatly, R. v 331 
 
 Williams V. State 238 
 
 Williams V. State... _ 810 
 
 Williams, People v 3rtO 
 
 Wilson V. State. .' 227 
 
 Wright V. People 73 
 
HMBEZZLEMEiNT. 
 
 The common law definition of larceny, as constnied by the 
 English courts, did not extend to all cases in which the prop- 
 erty of one was taken and fraudulently converted to his own 
 use by another. The offence was strictly defined, and from 
 the earliest time it had been held that the non-consent of the 
 owner of goods to the taking thereof was an indispensable 
 ingredient in making up the crime of larceny, a 
 
 Where the possession of goods was acquired hona fide by a 
 bailee, no subsequent fraudulent conversion by him amounted 
 to larceny at common law unless there was breaking of bulk, 
 or some other rupture of the condition of bailment amounting 
 to trespass, h 
 
 ISr either was it larceny at common law for a servant to em- 
 bezzle, or fraudulently convert to his own use goods delivered 
 into his possession by his master, to keep for the use of the 
 master. But where a servant had merely the custody of the 
 goods, then a felonious appropriation thereof was larceny at 
 common law, though the custody came directly from the mas- 
 ter or employer, c 
 
 . At the common law no delivery of goods from the owner to 
 the offender upon trust, could ground a larceny. As if A. 
 loaned B. a horse, and he rode away with it; or if I sent 
 goods by a carrier and he carried them away ; these were not 
 larcenies. But if the carrier opened a bale or package of 
 
 a R.v. Bazely, 14; Kribs V. People, 20; Com. v. Berry, 109; Warmouth 
 
 18 ; Simco v. State, 20 ; People v. v. Com., 142 ; People v. Nichols, 183. 
 Hemiessey, 99 ; People v. Loomis, c R. v. "Watson, 13 ; Com. v. Berry, 
 
 171 ;Reg.v.Middletetoii,189; Kellogg 109; Warmouth v. Com., 142; R. v. 
 
 V. State, 384. Lavandar, 181 ; R. v. Paradice, 182. 
 
 JR. V. Bazely, 14; Simco v. State, 
 
3 Phalbn's Ceiminal Cases. 
 
 goods, or pierced a vessel of wine, and took away part thereof, 
 or if he carried it to the place of delivery, and afterward took 
 away the whole, or a part thereof, these were larcenies ; for 
 there the animus furandi is manifest, since in the first case 
 he had otherwise no inducement to open the goods, and in the 
 second the trust was terminated, the delivery having taken 
 its effect. Neither by the common law was it larceny in any 
 servartt to run away with the goods committed to him to keep, 
 but only a breach of civil trust. But if he had not the pos- 
 session, but only the care and oversight of the goods, as the 
 butler of the place, the shepherd of the sheep, and the like, the 
 embezzlement of them was felony at common law. So if a 
 guest robbed his inn or tavern of a piece of plate, it was lar- 
 ceny; for he had not the possession delivered to him, but 
 merely the use. 4 Blk. Com., 230, 231. 
 
 " If a man deliver goods to a carrier to carry to a certain 
 place, and he carry them away, it is no felony; otherwise, if 
 he had a bale or trunk with goods delivered to him, and he 
 break the bale or trunk, and take and carry away the goods 
 with intent to steal them. So if he carry the whole 'pack to 
 the place appointed, and then carry it away with intent to steal 
 it, this is a felonious taking by the book of 13 Ed. 4, 9, for 
 the delivery had taken effect, and the privity of the bailment 
 was determined. But that must be, indeed, says Lord Hale, 
 where he carries them to the place, and delivers or lays them 
 down; for then his possession by the first delivery is deter- 
 mined, and the taking afterwards is a new taking. 
 
 " It appears at first sight absurd to say, that if the carrier 
 never carry the package to the place appointed, but sell the 
 whole, it shall not be felony; but that if he take out a part 
 of the goods only, it shall be so. Yet the distinction is well 
 settled; for the carrier is trusted with the carriage of it in that 
 condition; and if the package be lost, stolen, or taken, he is 
 answerable; and therefore his conversion is a breach of trust 
 for which the owner may recover the value of the whole 
 in damages. But to constitute larceny there must be an 
 unlawful taking and trespass; and up to the moment of his 
 parting with the whole package, his possession is lawful, and 
 he has no unlawful possession afterwards whereby to consti- 
 
Embezzlement. 3 
 
 tute a new taking, unless he break the package, or sever part 
 of the commodity from the rest while it continues in his pos- 
 session." 2d. East's P. 0., 659. 
 
 " If the person to whom goods are delivered has but the 
 bare charge or custody of them, the legal possession remains 
 in the owner, and the other may commit larceny by a fraudu- 
 lent convertion of them to his own use. This rule I have 
 before shown d to hold most expressly in the case of servants 
 entrusted with the care of goods in the possession of their 
 masters. The only doubt which had any foundation in respect 
 to such persons was where the master had no previous posses- 
 sion of the property distinct from the actual possession of the 
 servant; but that difficulty has been removed by the stat., 39 
 Geo., 3 C, 85. e The same rule applies to him who has a bare 
 special use of goods; as in the case of a guest in the owner's 
 house; for none of these persons have, properly speaking, the 
 possession. So, if a weaver or silk throwster deliver yarn or 
 silk to be wrought by journeymen in his house, and they 
 carry it away with the intent to steal it, it is felony; for the 
 entire property remains there only in the owner, and the jdos- 
 session of the workman is the possession of the owner. But 
 if the yarn had been delivered to a weaver out of the house, 
 and he having the lawful possession of it had afterward em- 
 bezzled it, this would not be felony; because by the delivery 
 he had a special property, and not a bare charge; in the same 
 manner as one who is entrusted with the care of a thing for 
 another to keep for his use." 2 East's, P. C, 682. 
 
 In view of these defects and uncertainties in the common 
 law, and to prevent servants from embezzling or converting to 
 their own use, with intent to steal, caskets, jewels, money, goods 
 or chattels, delivered to them by their masters or mistresses 
 to keep, the English parliament passed the following enactment, 
 21 Henry VIII. 0. 7, which recites that: " Where before this 
 time, divers, as well noblemen as others the king's subjects, 
 have upon confidence and trust delivered unto their servants, 
 their caskets and other jewels, money, goods, and chattels, 
 safely to be kept to the use of their said masters or mis- 
 tresses, and after such delivery the said servants have with- 
 
 d Paradioe's Case, post. e 39 Geo., 3 c, 85, Post. 
 
4 Phalen's Geiminal Cases. 
 
 drawn themselves and gone away from their said masters or 
 mistresses, with the said caskets, jewels, money, goods and 
 chattels, or part thereof, to the intent to steal the same, and 
 defraud their said masters or mistresses, have converted the 
 said jewels, money and other chattels, or parts thereof, to 
 their own use, which misbehavior so done was doubtful in 
 the common law, whether it were felony or not; and by reason 
 thereof, the aforesaid servants have been in great boldness to 
 commit such or like offences: Be it therefore enacted, or- 
 dained and established by the King our Sovereign Lord, by 
 the assent of the Lords Spiritual and Temporal, and the Com- 
 mons, in this present Parliament assembled, and by authority 
 of the same, That all and singular such servants (1), to whom 
 any such casket, jewels, money, goods or chattels, by his or 
 their said masters or mistresses (2), shall from henceforth so 
 be delivered to keep (3), that if any such servant or servants 
 withdraw him or them from their said masters or mistresses 
 and go away with the said caskets, jewels, money, goods or 
 chattels, or any part thereof, to the intent to steal the same, 
 and defraud his or their said masters or mistresses thereof, 
 contrary to the trust and confidence to him or them put by 
 his or their said masters or mistresses, or else being in the 
 service of his said master or mistress, without assent or 
 commandment of his master or mistress, embezzle the same 
 caskets, jewels, money, goods, or chattels, or any part thereof, 
 or otherwise convert the same to his own use, with like pur- 
 pose to steal it, that if the said caskets, jewels, money, goods 
 or chattels, that any such servants shall so go away with, or 
 which he shall embezle with purpose to steal it, as is afore- 
 said, be of the value of XI s. or above, that then the same 
 false, fraudulent, and untrue act or demeanor, from henceforth 
 shall be deemed and adjudged felony; and he or they so 
 offending, to be punished, as other felons be punished for 
 felonies committed by the course of the common law. 
 
 II. " Provided always, that this act, or any thing therein 
 contained, shall not in anywise extend, or be prejudicial to any 
 apprentice or apprentices, nor to any person within the age 
 of eighteen years, going away with his or their masters goods 
 or jewels, or otherwise converting the same to his or their 
 
Embezzlement. 6 
 
 own use, during the time of their apprenticeship, or being 
 within the age of eighteen years, but that every apprentice 
 or apprentices, such person or persons being within the said 
 age, doing or offending contrary to this present Act, shall be, 
 and stand in like case as they and every one of them were 
 before the making of this Act; the same Act to continue and 
 endure unto the next Parliament." 
 
 While the above statute, made the offence of embezzling 
 property delivered by the master, felony; the property of 
 others was not expressly embraced and it was held in Bazely's 
 case,i that where a banker's clerk received money and 
 notes paid in by a customer, and embezzled the notes, that 
 the offence was not larceny but only a breach of trust, the 
 master never having possession distinct from the servant. 
 
 This construction brought forth the statute 39 George III. 
 C. 86, which recites and enacts that: 
 
 " Whereas bankers, merchants, and others, are, in the 
 course of their dealings and transactions, frequently obliged 
 to entrust their servants, clerks and persons employed by 
 them in the like capacity, with receiving, paying, negotiating, 
 exchanging, or transferring money, goods, bonds, bills, notes, 
 bankers' drafts, and other valuable effects and securities. 
 And whereas doubts have been entertained whether the 
 embezzling of the same by such servants, clerks, and others, 
 so employed by their masters, amounts to felony by the law 
 of England, and it is expedient that such offences should be 
 punished in the same manner in both parts of the United 
 Kingdom ; be it enacted and declared by the King's most Ex- 
 cellent Majesty, by and with the advice and consent of the 
 Lords Spiritual and Temporal, and Commons, in this present 
 Parliament assembled, and by the authority of the same, That 
 if any servant or clerk; or any person employed for the 
 purpose in the capacity of a servant or clerk, to any per- 
 son or persons whosoever, or to any body corporate or poli- 
 tic, shall, by: virtue of such employment, receive or take into 
 his possession any money, goods, bond, bill, note, bankers' 
 draft, or other valuable security, or effects, for or in the 
 name or on the account of his master or masters, or employer 
 ■■ Bazely's case, post. 
 
6 Phalen's Criminal Cases. 
 
 or employers, and shall fraudulently embezzle, secrete, or 
 make away with the same, or any part thereof, every such 
 oifender shall be deemed to liave feloniously stolen the same 
 from his master or masters, employer or employers, for whose 
 use, or in whose name or names, or on whose account the 
 same was or were delivered to, or taken into the possession 
 (1) of such servant, clerk or other person so employed, al- 
 though such money, goods, bonds, bills, notes, bankers' draft, 
 or other valuable security, was or were not otherwise received 
 into the possession of his or their servant, clerk, or other 
 person so employed; and every such oifender, his adviser, 
 procurer, aider or abetter, being thereof lawfully convicted or 
 attainted, shall be liable to be transported to such parts beyond 
 the seas as his Majesty, by and with the advice of his Privy 
 Council, shall appoint, for any term not exceeding fourteen 
 years, in the discretion of the Court before whom such offen- 
 der shall be convicted or adjudged." 
 
 The next statute upon the subject of embezzlement is, 
 the 7 and 8 George IV. C. 29, entitled "An Act for consolida- 
 ting and amending the laws in England relating to Larceny 
 and other offences connected therewith. Section 47. " And, 
 for the punishment of embezzlements committed by clerks 
 and servants, be it declared and enacted: That if any clerk 
 or servant, or any person employed for the purpose or in the 
 capacity of a clerk or servant, shall by virtue of such employ- 
 ment, receive or take into his possession any chattel, money or 
 valuable security, for or in the name or on the account of his 
 master, and shall fraudulently embezzle the same", or any part 
 thereof, every such offender shall be deemed to have feion- 
 ously stolen the same from his master, although such chattel 
 money or security was not received into the possession of 
 such master otherwise than by the actual possession of his 
 clerk, servant or other person so employed; and every such 
 offender, being convicted thereof, shall be liable, at the discre- 
 tion of the court, to any of the punishments which the court 
 may award as hereinbefore last mentioned. 
 
 Section 48. " And, for preventing the difficulties that have 
 been experienced in the prosecution of the last mentioned 
 offenders, be it enacted. That it shall be lawful to charge in 
 
Embezzlement. 7 
 
 the indictment and proceed against the offender for, any num- 
 ber of distinct acts of embezzlement not exceeding three, 
 which maj"^ have been committed by him against, the same 
 master, within the space of six calendar months from the first 
 to the last of such acts; and in every such indictment, except 
 where the offence shall relate to any chattel, it shall be sufficient 
 to allege the embezzlement to be of money, without specify- 
 ing any particular coin or valuable security; and such allega- 
 tion, so far as regards the description of the property, shall be 
 sustained, if the offender shall be proved to have embezzled 
 any amount, although the particular species of coin or valua- 
 ble security of which such amount was composed shall not be 
 proved; or if he shall be proved to have embezzled any piece 
 of coin or valuable security, or any portion of the value thereof, 
 although such piece of coin or valuable security may have 
 been delivered to him in order that some part of the value 
 thereof should be returned to the party delivering the same, 
 and such part shall hai^e been returned accordingly. 
 
 Section 49. " And, for the punishment of embezzlements 
 committed by agents entrusted with property, be it enacted, 
 That if any money, or security for the payment of money, 
 shall be entrusted to any banker, merchant, broker, attorney', 
 or other agent, with any direction in writing to apply such 
 money, or any part thereof, or the proceeds or any part of 
 the proceeds of such security, for any purpose specified in 
 such direction, and he shall, in violation of good faith, and 
 contrary to the purpose so specified, in anywise convert to 
 his own use or benefit such money security or proceeds, or 
 any part thereof respectively, every such offender shall be 
 guilty of a misdemeanor, and being convicted thereof, shall 
 be liable, at the discretion of the court, to be transported be- 
 yond the seas for any term not exceeding fourteen years nor 
 less than seven years, or to suffer such other punishment by 
 fine or imprisonment, or by both, as the court shall award; 
 and if any chattel or valuable security or any power of attor- 
 ney for the sale or transfer of any share or interest in any 
 public stock or fund, whether of this kingdom, or of Great 
 Britain or Ireland^ or of any foreign state, or in any fund 
 of any body, corporate company or society, shall be entrusted 
 
8 Phalen's Criminal Cases. 
 
 to any banker, merchant, broker, attorney or other agent, for 
 safe custody, or for any special purpose, without any authority 
 to sell, negotiate, transfer, or pledge, and he shall, in violation 
 of good faith and contrary to the object or purpose for which 
 such chattel security or power of attorney shall have been 
 entrusted to him, sell, negotiate, transfer, pledge, or in any 
 manner convert to his own use or benefit such chattel or secu- 
 rity, or the proceeds of the same, or any part thereof, or the 
 share or interest in the stock or funds to which such power of 
 attorney shall relate, or any part thereof, every such ofi^nder 
 shall be guilty of a misdemeanor, and being convicted thereof, 
 shall be liable, at the descretion of the court, to any of the pun- 
 ishments which the court may award, as hereinbefore last 
 mentioned. 
 
 Section 50. " Provided always, and be it enacted. That 
 nothing hereinbefore contained relating to agents sliall affect 
 any trustee in or under any instrument whatever, or any mort- 
 gagee of any property, real or personal, in respect of any act 
 done by such trustee or mortgagee in relation to tlie property 
 comprised in or affected by any such trust or mortgage; nor 
 sliall restrain any banker, merchant, broker, attorney or other 
 agent from receiving any money which shall be or become 
 actually due and payable upon or by virtue of any valuable 
 security, according to the tenor and effect thereof, in such 
 manner as he might have done if this Act had not been passed ; 
 nor from selling, transferring or otherwise disposing of any 
 securities or effects in his possession, upon which he shall 
 have any lieu, claim or demand, entitling him by law so to do, 
 unless such sale, transfer or other disposal shall extend to a 
 greater number or part of such securities or effects than shall 
 be requisite for satisfying such lien, claim or demand. 
 
 Section 51. " And be it enacted. That if any factor or agent 
 entrusted, for the purpose of sale, with any goods or merchan- 
 dise, or entrusted with any bill of lading, warehouse keeper's 
 or wharfinger's certificate, or warrant or order for delivery of 
 goods or merchandise, shall for his own benefit and in viola- 
 tion of good faith, deposit or pledge any such goods or merchan- 
 dize, or any of said documents, as a security for any money 
 or negotiable instrument borrowed or received by such factor 
 
Embezzlement. .9 
 
 •or agent, at or before the time of making such deposit or 
 pledge, or intended to be thereafter borrowed or received, 
 every such offender shall be guilty of a misdemeanor, and be- 
 ing convicted thereof, shall be liable, at the discretion of the 
 •court, to be transported beyond the seas, for any term not ex- 
 ceeding fourteen years nor less than seven years, or to suffer 
 such other punishment by fine or imprisonment, or by both, 
 as the court shall award ; but no such factor or agent shall be 
 liable to any prosecution for depositing or pledging such goods 
 or merchiandize, or any of the said documents, in case the same 
 shall not be made as security for or subject to the payment of 
 any greater sum of money than the amount which, at the 
 time of such deposit or pledge, was justly due and owing to 
 such factor or agent from his principal, together with the 
 amount of any bill or bills of exchange drawn by or on account 
 of such principal, and accepted by such factor or agent." 
 
 The 9 George IV. C. 55 entitled "An Act for consolidating 
 and amending the Laws in Ireland, relative to Larceny, and 
 other offences connected therewith," and recites that Whereas 
 in the last session of Parliament ;an Act was passed for con- 
 solidating and amending the laws in England relative to 
 larceny, and other offences connected therewith; and it is ex- 
 pedient that provision should be made in Ireland for the like 
 purposes. Be it therefore enacted by the King's most excel- 
 lent Majesty, by and with the advice and consent of the Lords 
 Spiritual and Temporal, and Commons, in this present 
 Parliament assembled, and by authority of the same, that this 
 present Act, and the several matters herein contained, shall 
 •extend to Ireland, and not to England, Wales or Scotland, 
 except in the two cases liereinafter specially provided for; 
 and that this Act shall commence and take effect in Ireland 
 on the first day of SepteTnher, one thousand eight hundred 
 and twenty-eight." 
 
 Section 40. " And for the punishment of embezzlement 
 committed by clerks and servants, be it enacted. That if any 
 clerk or servant, or any person employed for the purpose or 
 in the capacity of a clerk or servant, shall, by virtue of such 
 employment, receive or take into his possession any chattels, 
 moneys or valuable security, for or in the name or on the 
 
10 Phalen's Criminal Oases. 
 
 account of his master or employer, and shall fraudulently 
 embezzle the same or any part thereof, every such offender 
 shall be deemed to have feloniously stolen the same from his 
 master or employer, although such chattel, money or security 
 was not received into the possession of such master or em- 
 ployer otherwise than by the actual possession of his clerk, 
 servant or other person so employed; and every such offender, 
 being convicted thereof, shall be liable, at the discretion of the 
 court, to be transported beyond the seas for any term not 
 exceeding fourteen years nor less than seven years, or to be 
 imprisoned for any term not exceeding three years, and, if a 
 male, to be once, twice or thrice publicly or privately whipped, 
 (if the court shall so think fit), in addition to such imprison- 
 ment." 
 
 Sections 41, 42, and 43 of this Act are identical with sec- 
 tions 48, 49 and 50 of the 7 and 8 Geo., IV, Chapter 29. 
 
 Section 75, provides that any person offending against the 
 provisions of this act who shall afterwards have the same 
 property in his possession in any part of the United Kingdom, 
 may be tried and punished, under this act, in that part of 
 the United Kingdom where he shall have such property, in 
 the same manner as if he had actually stolen or unlawfully 
 taken it as aforesaid in that part of the United Kingdom. 
 
 The 34 and 25 Victoria, C, 96, Sec. 68, provides that, 
 " Whosoever being a clerk or servant, or being employed for 
 the purpose or in the capacity of a clerk or servant, shall 
 fraudulently embezzle any chattel, money, or valuable security 
 which shall be delivered to, or received ov taken into posses- 
 sion by him, for, or in the name or on account of his master 
 or employer, or any part thereof, shall be deemed to have 
 feloniously stolen the same from his master or employer, 
 although such chattel, money, or security was not received 
 into the possession of such master or employer otherwise than 
 by the actual possession of his clerk, servant, or other person, 
 so employed." 
 
Embezzlement. 11 
 
 Some difficulties have been experienced both in this country 
 and England, in the application of the embezzlement statutes. 
 These difficulties arise mainly in failing to keep in view the 
 distinguishing features between the offence of larceny and 
 that of embezzlement and in the different construction courts 
 have placed upo:i the same or similar statutes upon this sub- 
 ject. 
 
 Whether the embezzlement statutes: are simply supple- 
 mentary to the common law, and consequently confined to that 
 class of cases not included within the common law range of 
 larcenies, or whether they extend to and include within their 
 embrace, facts which constitute larcency at common law, has 
 been the source of much controversy, and is far from being a 
 settled question in the American courts at tlie present time^ 
 
 Where the etnbezzlement statutes have been considered as 
 merely supplementary to common law larceny, their applica- 
 tion has been confined to such fraudulent appropriations by 
 agents, clerks and servants as were not reached by common 
 law prosecutions for larceny. This is the settled doctrine of 
 the English courts, and seems to be supported by reason as 
 well as authority ; since a count for larceny and embezzlement 
 may be joined in the indictment, and when the facts are 
 developed by evidence, the prosecutionfmay elect upon which 
 count it desires to stand, or upon proper instructions may go 
 to the jury upon both counts, it is hard to understand how 
 the slightest inconvenience can arise from^the maintenance of 
 this rule. Otherwise, if the embezzlement statutes cover all 
 classes of larceny by servants, the old common law indictment 
 for larceny will not be good where servants [are defendants, 
 for the reason that the embezzlement statutes would have to 
 be followed, and in indictments for embezzlement it is neces- 
 sary to allege all such facts and circumstances as constitute 
 the statute offence, so as to bring the party indicted precisely 
 within the provisions of the statute creating the offence. All 
 that would be necessary in a prosecution for larceny, to obtain 
 an acquittal, would be to prove that the defendant was a clerk, 
 servant, agent or bailee.^ 
 
 /Ker V. People, post; Lowenthal nessy, post; State v. Sims, post. 
 V. State, post; People v. Dalton; gr Murphy v. People; People v. 
 Com. V. Berry, post ; People v. Hen- Allen, post; Carter v. State, post; 
 
12 Phalen's Ceiminal Cases. 
 
 But where the embezzlement statutes are considered as inde- 
 pendent acts, creating a new class of offences, although the 
 subject matter or a part thereof may have been larceny at com- 
 mon law, they will be viewed as other penal statutes and 
 subject to the same rule of construction, and upon trial of the 
 accused the inquiry will be, was the act done within the terms 
 of the statute./i 
 
 Wharton in his Work on Criminal Law, Sec. 1905 (7 ed.), 
 says : "In the common law definition of larceny existed two gaps 
 through which, in the expansion of business, many criminals 
 escaped. The first of these is caused by the position that to 
 maintain larceny it is necessary that the stolen goods should 
 have been at some time in the prosecutor's possession. The 
 second results from the assumption that when possession of 
 goods is acquired bona fide by a bailee, no subsequent fraudu- 
 lent conversion, unless there be breaking of bulk or some 
 other rupture of the condition of bailment, can be larceny 
 while the bailment lasts. To cure these defects were passed 
 the embezzlement statutes of England and of most of the 
 United States. These statutes were intended simply to estab- 
 lish two new cases of larceny. If a servant (and this is the 
 first of the two), steals his master's goods before they have 
 arrived into his master's possession he, the servant, shall be 
 guilty of larceny. And the second is, that it shall be larceny 
 for a trustee, or bailee to fraudulently convert to his own use 
 his master's goods he may have iona fide received. Now, as 
 neither of these cases are larceny at common law, the statute 
 of embezzlement in no way overlaps the old domain of lar- 
 ceny. They were passed solely and exclusively to provide for 
 cases which larceny at common law, did not include. Hence 
 nothing that is larceny at common law is larceny under the 
 embezzlement statute; and nothing that is larceny under the 
 embezzlement statute is larceny at common law." 
 
 Gaddy V. Slate, post ; Ker v. People, pie v. Cohen, post; Ker f. People, 
 
 post; Kribs V. People, post ; State v. poit; People v. Sliermau, post; 
 
 J3ims, post; Com, v. Berry, post. State v. Foster, post. 
 h Ljwenthall v. Stii.te, post; Pen. 
 
E. V. Watson. IS 
 
 R. y. Watson. 
 
 (2 East's. P. C, 562.) 
 
 Bmbkzzlbmbnt. No larceny in servant who embezzles money deliv- 
 ered to Mm to purchase goods with, either on the statpte 27 Hery, 8 C. 7,. 
 or at common law. 
 
 William Watson was tried ou an indictment, containing 
 three counts; the first stating, that the prisoner as a servant, re- 
 ceived £3 18s. the money of E. Cowper his late master; which 
 was delivered to him safely to keep to the use of his said master; 
 and that afterwards the said prisoner withdrew himself from 
 his master with the money, with an intent to steal the same, 
 and to defraud his said master thereof. The 2d count stated 
 that the prisoner having received the said money in the man- 
 ner above stated, and being with his master, had converted the 
 same to his own use; and both concluded against the form of 
 the statute. The third court was for larceny generally. It 
 appeared that Cowper, who was a surrogate, had sent the 
 prisoner, who was his servant, to buy some blank licenses, 
 and had delivered him the £3 18s. for that purpose; but the 
 prisoner ran away with the money; and being convicted, a 
 question was reserved for the opinion of the Judges, whether 
 the evidence supported any of the counts? and in East term,. 
 1788, all the Judges but the Chief Baron held- that this case 
 was not within the Stat., for to keep means to keep for the 
 use of the master, and to return to him. As to the count for 
 larceny, all the Judges held this could not be felony at com- 
 mon law; for to make it felony there must be some act done 
 by the prisoner, a fraudulent obtaining of the possession with 
 intent to steal. The last point, however, has been since denied 
 to be law in Lavender's case. 
 
 Lavender's case, post. 
 
14 Phalen's Criminal Cases. 
 
 E. V. Bazely. 
 
 ( 3 East's P. C, 571.) 
 
 Embezzlement. Where a clerk in a banker's shop received money 
 and notes paid in by a customer on his account, and the clerk placed the 
 money in the till, but embezzled the notes immediately ; held no larceny, 
 but only breach of ^ust at common law ; for though the possession of the 
 servant is for many purposes and as against third persons the possession of 
 the master, yet here the master never had a possession distinct from the 
 servant as against him ; and his receipt being lawful, there was no tor- 
 tious taking by him, without which there can be no larceny. Aliter if he 
 had taken the notes after he had deposited them in the till. 
 
 Joseph Bazely was tried at the O. B. in February, 1799, on 
 an indictment for stealing a bank note of the value of £100, 
 the property of Peter Esdaile and others, bankers in London. 
 It appeared in evidence, that Mr. Gilbert, who kept cash with 
 these gentlemen, sent by his servant £122 in bank notes 
 and £15 in money, and amongst the bank notes was the note 
 in question: That the servant delivered the whole into the 
 hands of the prisoner, who was a clerk to the bankers, and as 
 such, authorized to recewe and give a discharge for the same,' 
 and that it was his duty to put the money received into a till, 
 and to place in another drawer the several bank notes which 
 he might receive during the day, for the purpose of another 
 clerk taking down and entering in a book the particular de- 
 scription of each note. The prisoner gave an acknowledge- 
 ment to the servant of having received the full sum of £137, 
 and put the money into the till; but instead of placing the re- 
 maining sum of £122 which he received in bank notes in the 
 drawer, according to his duty, he kept back the one of £100, 
 for which he was indicted; and only delivered over those to 
 the amount of £22. The jury found the prisoner guilty, 
 subject to the opinion of the Judges. Whether such taking 
 were to be considered as felonious, or only a breach of trust? 
 The cause was argued in the Exchequer Chamber, in Easter 
 term, 39 Geo. 3, before all the Judges, except Ashhurst, Bul- 
 ler and Heath Js., who were absent. The arguments are in 
 print, and therefore I shall not detail them at length in this 
 
E. V. Bazely. 15 
 
 place. It is sufficient to observe, that on the part of the 
 prisoner it was contended to be a breach of trust, and not 
 felony. And these distinctions were taken; that larceny is 
 the taking of property from the possession of another with- 
 out his consent and against his will. Breach of trust, the 
 misapplication of property which another, by his own volun- 
 tary consent, has put into the possession of the part}', and 
 that fraud was (in this respect) the obtaining the possession 
 of the property of another with his consent, by some contri- 
 vance against which common prudence cannot guard. That 
 in order to constitute larceny the owner of the property must 
 be in possession of it either actually or constructively. That 
 here there was no actual possession, nor any constructive 
 possession as against the prisoner. In the course of the ar- 
 gument it was stated and admitted that the prisoner had given 
 his employers security to account for what he received, 
 and against embezzlement. And on the part of the prisoner 
 this was likened to a case of one Bull, who was indicted for 
 receiving his master's money. The prosecutor was a pastry- 
 cook, and having occasion to suspect he was robbed by the 
 prisoner, who was his servant attending his shop, he employed 
 a customer to come to his shop, on pretence of buying some- 
 thing; and for this purpose he gave him some marked shil- 
 lings of his own, with which the customer came to the shop 
 in the absence of the owner, and bought goods ■ of the defen- 
 dant. Soon after the master coming in, examined the till, 
 where the defendant ought to have deposited the money when 
 received, and not finding all the marked money there, he 
 procured the defendant to be immediately apprehended and 
 searched, and the rest of the marked money was found upon 
 him. After conviction the point was saved by Mr. Justice 
 Heath; and the Judges on being consulted were of opinion 
 that the prisoner was not guilty of larceny, but only of a 
 breach of trust; the money never having been put in the till, 
 and therefore not having been in possession of the master as 
 against the defendant. And Waite's case before mentioned 
 was very mainly relied on, in order to show that this was a 
 mere breach of trust; confirmed as the doctrine there laid 
 down had been by the acts of the legislature, in providing in 
 
16 Phalen's Criminal Cases. 
 
 future against embezzlements of that sort in the particular case 
 of the bank, by the act of the 15 Geo. 2, C. 13, and by simi- 
 lar statutes in regard to the post-office and other cases. And 
 the particular contract between the prisoner and his employers 
 was also insisted upon, as distinguishing this from the gen- 
 eral case of master and servant. 
 
 During the argument, Eyre, C. J., observed, that Charle- 
 wood's case, and other cases of the sort, turned upon the posses- 
 sion having been unlawfully obtained by the prisoner; but that 
 here there was no evidence to iind such an original intention 
 to steal, because the possession came to the servant in the or- 
 dinary course of his business, without any act of his own for 
 that purpose. 
 
 For the crown, it was insisted upon as a general rule, that 
 in the case of personal chattels the possession in law follows 
 the right of property. That if by law the possession of the ser- 
 vant were that of the master, which could not be denied, then no 
 compact between them to indemnify the master could do away 
 the operation of the law. That the customer could do away 
 the operation of the law. That the customer did not mean 
 to deposit the notes as a matter of trust in the clerk's hands; 
 for they were paid in the bank's own house, of which the de- 
 fendant was one of the organs; and therefore it was like pay- 
 ing money into the hands of the bankers themselves; and the 
 act of receipt by the clerk co-instanter vested the possession in 
 them. That in Bull's case the servant had authority to sell the 
 goods, and was only accountable for their value; but the pris- 
 oner had no authority to dispose of the notes which he received 
 in the shop. But there could be no doubt in that case, if the 
 servant had embezzled the master's goods out of his shop it 
 would have been felony. That considering this act a bailment, 
 yet part of the property being deposited in its proper place, 
 the separating the other part made it a felony, for the bail- 
 ment was entire. That in Wait's case there was a personal 
 confidence reposed in him by the person making the deposit, 
 in the known authenticated character of cashier of the Bank. 
 The act of parliament directing the deposit to be with the 
 cashier of the Bank,' and therefore a delivery to him at any 
 place would have been sufficient. 
 
R. V. Bazely. 17 
 
 Lord Kenjon, 0. J., thereupon observed, that the provisions 
 of that act would hardly vyarrant an inference that the deposit 
 was directed to be made personally with the cashier, but 
 merely with him as an officer of the corporation who must act 
 by their agents. And Lord C. J. Eyre remarked that the 
 money and bonds were to be paid to the Bank, though the 
 cashier's receipt was to be a discharge so as to bind the Bank. 
 
 It was then said that the act was made pro majori cantela. 
 
 Afterwards, on consultation among the judges, some doubt 
 was at iirst entertained ; but at last all assembled agreed that 
 it was not felony, inasmuch as the note was never in the pos- 
 session of the bankers distinct from the possession of the 
 defendant; though it would have been otlierwise if the pris- 
 oner had deposited it in the drawer, and had afterwards taken 
 it. And they thought that this was not to be differed from 
 the case of Waite and Bull, which turned on this considera- 
 tion, that the thjpg was not taken by the prisoner out of the 
 possession of the owner: and here it was delivered into the 
 possession of the prisoner. That though to many purposes 
 the note was in the actual possession of the masters, yetitwaa 
 also in the actual possession of the servant, and that posses- 
 sion not to be impeached, for it was a lawful one. Eyre, C J. 
 also observed, that the cases run into one another very much, 
 and were hardly to be distinguished. That in the case of 
 the King v. Spears the corn was in the possession of the master 
 under the care of the servant. And Lord Kenyon said he 
 relied much on the act of parliament respecting the Bank not 
 going further than to protect the Bank. The prisoner was. 
 accordingly recommended for a pardon. 
 
18 Phalen's Oeiminal Cases. 
 
 Kbibs v. People. 
 
 (81 111., 599.) 
 
 Embezzlement. An indictment charging an ordinary larceny is not 
 sufficient under the embezzlement statute. Nothing that was larceny at 
 common law is larceny under the embezzlement statutes. 
 
 Mr. JtrsTiCE Soholfield delivered the opinion of the court. 
 
 It is not claimed by the state that the defendant is other- 
 wise guilty than under the seventy-fourth section of the crimi- 
 nal code, entitled "Embezzlement," which is as follows: 
 "Whoever embezzles or fraudulently converts to his use, or 
 secretes, with intent to embezzle or fraudulently convert to 
 his own use, money, goods, or property delivered to him, 
 which may be the subject of larceny, or any part thereof, shall 
 be deemed guilty of larceny." 
 
 This indictment is for larceny, simply as at common law. 
 
 The uniform construction of similar acts, both in this coun- 
 try and in England, is " that the indictment must set out the 
 act of embezzlement, and then aver that so the defendant 
 committed the larceny. 2 Bishop's Criminal Procedure, § 281 ; 
 2 Wharton's Criminal Law (ed. of 1841), 281, 282, 283; Wat- 
 erman's Archbold on Practice, Pleadings and Evidence in 
 Criminal Cases, p. 446, 1, 2, 3, 4, 5, 6, and notes. 
 
 The defendant's fiduciary character, which is the distin- 
 guishing feature between embezzlement and larceny, must be 
 specially averred. Com. v. <S'^mpso7^, 9 Mete, 13; People v. 
 Cohen, 8 Cal., 42; Com. v. Smart, 6 Cray, 15; Com. v. Wy- 
 man, 8 Mete, 247; Com. v. Merrifield, 4 Id., 468; People v. 
 Tryon, 4 Michigan, 665; People v. Allen, 5 Denio, 76; Eex 
 v. Johnson, 3 M. and S., 539; Rex v. Creighton, Euss. and 
 Ry., 62. And this rule, instead of being changed, is expressly 
 recognized by section eighty-two of the Criminal Code (R. L. 
 1874, p. 364), which provides that, in indictments, in cases 
 under the statute relating to embezzlement, " it shall be suffi- 
 cient to allege generally in the indictment an embezzlement, 
 
Kribs v. The People. 19 
 
 fraudulent conversion, or taking with such intent, of funds of 
 fiuch person, bank, incorporated company, etc., to a certain 
 value or amount, without specifying any particulars of such 
 •embezzlement." 
 
 We are referred, however, by the attorney-general, to "Welch 
 V. The People, 17 111., 339, and Stinson et al. v. The People, 
 43 Id., 397, as settling the law in this state, the evidence of an 
 •embezzlement will authorize a conviction for larceny. 
 
 This is a misapprehension as to the effect of what was de- 
 •cided in those cases. 
 
 The conviction there was for larceny, as at common law, 
 :and no question was raised or discussed iinder the statute 
 relating to embezzlements, and it was held, in both cases, the 
 evidence authorized the jury in finding that defendant, in 
 obtaining possession of the property, in the first instance, did 
 so with a felonious intent. The distinction between larceny 
 and obtaining goods under false pretenses, was the turning 
 point in each case, and it was thus pointed out in Stinson's 
 ^ase : " If the owner of goods alleged to have been stolen, 
 parts with both the possession and the title to the goods, to 
 the alleged thief, then neither the taking nor the conversion is 
 felonious. It can but amount to a fraud; it is obtaining 
 .goods under false pretenses. If however, the owner parts 
 with the possession voluntarily, but does not part with the 
 title, expecting and intending 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, if the goods were obtained with that intent." 
 
 But the section of the Criminal Code quoted, relates to a 
 class of cases which were not larceny at common law, that the 
 statutes in relation to embezzlements " were passed solely and 
 exclusively to provide for cases which larceny at common law 
 did not include. Hence, nothing that was larceny at common 
 law is larceny under the embezzlement statutes; and nothing 
 that is larceny under the embezzlement statutes is larceny at 
 common law." 2 Wharton's Criminal Law (7th ed.), 1905. 
 
 Here the defendant sold a town or city lot for the prosecu- 
 
20 Phalen's Ceiminal Cases. 
 
 tor, and under his instructions, previously given, it was 
 defendant's duty^to loan the money at interest, on good secur- 
 ity, for the prosecutor; but, instead of complying with these 
 instructions, he lost the money at gaming. The prosecutor 
 never had the money in his possession at any time, and, 
 therefore, at common law, the offence could not have been 
 laceny; 2 "Wharton's Criminal Law (7 ed.) §§, 1830, a (p.),. 
 1846, b (g). 
 
 The evidence not being sufiEicient to sustain the conviction 
 for larceny, the judgment must be reversed. 
 
 Judgment reversed. 
 
 W. SiMco V. The State, 
 (8 Texas Ct. of App., 406.) 
 
 Embezzlement. — Though kindred to theft, embezzlement is a separate 
 and distinct offence. Tlieft involves the idea of an unlawful acquisition, 
 whereas embezzlement is the fraudulent conversion of personal property- 
 after its possession has been lawfully acquired. 
 
 The Revised Code of Criminal Procedure, article 714, authorizes a con- 
 viction for embezzlement under an indictment for theft. But a retractive 
 operation cannot be allowed to this new provision ; and therefore in a 
 trial for theft alleged to have been committed before the Revised Code 
 took effect, it was error to instruct the jury to convict for embezzlement 
 if they found the possession of the converted property was lawfully 
 acquired by the accused. 
 
 Appeal from the District Court of Tarrant. 
 
 The indictment was found in May, 1879, and charged the 
 appellant with the theft, December 28, 1878, of a'wagon, 
 horse and mule, the property of P. D. Williamson. The jury 
 found him guilty of embezzlement of property over the value 
 of $20 and assessed his punishment at eight years in the 
 penitentiary. 
 
 The evidence shows that in Christmas week, 1878, the 
 appellant was employed by "Williamson to drive the latter's 
 wagon and team to Fort Worth with a load of cotton. The 
 
W. SiMoo V. The State. 21 
 
 team consisted of a horse and a mule, and they and the wagon 
 were confided by Williamson to the appellant, who proceeded 
 with them to Fort "Worth, and there sold them for $95. As 
 appellant did not return to Williamson's the latter went to 
 Fort Worth and reclaimed his property from the purchaser. 
 Appellant was pursued and brought back. Though the ver- 
 dict was for embezzlement the judgment was for theft. 
 
 Clark, J. The offence of embezzlement, while nearly akin 
 to larceny, and generally regarded as of that family, is never- 
 theless a separate and distinct offence, and essentially variant 
 from the latter. Theft is the fraudulent taking of personal 
 property under certain designated circumstances, and neces- 
 sarily involves the idea of an unlawful acquisition. Embez- 
 zlement is the fraudulent conversion of similar property after 
 its possession has been lawfully acquired. This variance in 
 the character of the two offences led the legislature, in the 
 adoption of the Revised Code of Criminal Procedure, to pro- 
 vide expressly that in a prosecution for theft a conviction 
 might be had for " embezzlement, and all unlawful acquisi- 
 tions of personal property punishable by the Penal Code." 
 Code Cr. Proc, art. 714, sect. 6. Prior to this change in the 
 law, it was permissible to convict, under an indictment for 
 theft, only for all unlawful acquisitions punishable by the 
 Code, Pasc. Dig., art. 3096, sect. 5. 
 
 In view of this legislation, and the difference in the two 
 offences of theft and embezzlement, we are constrained to 
 hold that, in a prosecution for theft occurring prior to the 
 adoption of the Revised Code, it was error for the court to 
 instruct the jury to convict of embezzlement, if the facts 
 showed the commission of that offence instead of the offence 
 of theft, and that a verdict so found is not supported by the 
 indictment. The new provision in the Code cannot be made 
 to act retrospectively. Callaway v. The State, 7 Texas Ct. 
 App., 585. 
 
 The entry of the judgment, adjudging appellant guilty of 
 theft upon a verdict finding him guilty of embezzlement, 
 would not necessitute a reversal of the case, but only a reform- 
 ation of the judgment by this court. Pasc. Dig., Art. 3208 ; 
 Rev. Code Cr. Proc, Art. 869. 
 
22 Phalen's Criminal Oases. 
 
 The judgment is reversed and the cause remanded, in order 
 that the matter may be further investigated arid acted upon 
 by the grand jury of Tarrant county. 
 
 Kevised and remanded. 
 
 J. W. Webb v. The State. 
 (8 Texas, Ct. of App., 310.) 
 
 Embezzlement. — In order to sustain a prosecution for embezzlement 
 against an agent, four distinct propositions of fact must be established in 
 evidence, beyond a reasonable doubt. These are as follows : 1. That the 
 defendant was an agent. 3. That he received money belonging to his 
 principal. 3. That he received it in the course of his employment. 4. 
 That he embezzled it. 
 
 The embezzlement statutes do not reach all breaches of duty by agents 
 nor provide a criminal remedy for the enforcement of their contracts. 
 
 M. A. Oatis, 0. T. Kouns, O. T. Plummee, and W. F. G-eorge, 
 for the appellant. 
 
 Thomas Ball, Assistant Attorney-General, for the State. 
 
 Clark, J. In order to sustain a prosecution for embezzle- 
 ment against an agent of a private person or corporation, four 
 distinct propositions of fact must be established in evidence, 
 beyond a reasonable doubt. These are as follows: 1. That 
 the defendant was the agent of the person or corporation as 
 alleged, and by the terms of his employment was charged with 
 the duty of receiving the money of his principal. 2. That 
 he did so receive money belonging to his principal. 3. That 
 he received it in the course of his employment. 4. That he 
 embezzled, misapplied, or converted it to his own use. 
 Leonard v. The State, 7 Texas, Ct, App., 417; Ex Parte Hed- 
 ley, 31 Cal., 108. Evidently, the money received and embez- 
 zled must belong to the principal or employer, and the identi- 
 cal money received must be that embezzled; for if, by trans- 
 mutation or change, it looses its essential characteristic as 
 property of the principal, and becomes at any time the pro- 
 
J. W. Webb v. The State. 23 
 
 perty of the agept, it ceases to become the subject of embezzle- 
 ment. 
 
 Statutes of embezzlement were not intended to provide 
 against every breach of duty or pecuniary obligation on the 
 part of agents and the like towards principals or employers; 
 nor does the law regard the latter class with such peculiar 
 favor as to provide a criminal remedy for the enforcement of 
 their contracts and the collection of their debts. These 
 statutes necessarily require a careful discrimination in their 
 application to the various cases that may arise, and it is 
 sometimes difficult to make out with entire precision the line 
 of demarcation between acts punishable as crimes, under these 
 statutes, and those that may not be embraced by them, while 
 they may yet present strong cases of breach of good faith and 
 violation of the confidence reposed in the party guilty of the 
 breach of trust. The true test may be found in an applica- 
 tion of the four propositions just above stated, to the facts of 
 the particular case, and if either of the ingredients mentioned 
 be found wanting, it may be safely assumed that the statutes 
 do not apply. 2 Bishop's Cr. Law, Sects. 355, 356; 3 Archb., 
 Or., Pr. and PI., 449, et seq.; 2 Euss. on Or., 181, 183; The 
 Commonwealth v. Stearns, 2 Mete, 343; The Commonwealth 
 V. Libby, 11 Mete, 64. 
 
 The indictment in this case charges the appellant with 
 embezzlement of $87, the property of the Singer Manufactur- 
 ing Company, appellant being the agent of the corporation, 
 autliorized to receive and in fact receiving said money by 
 virtue of his agency. It was developed in the evidence upon 
 the trial, that, among other transactions between the parties, 
 the appellant, as agent, received five sewing-machines from 
 the principal, and was authorized, outside of the contract, to 
 trade them for stock, if he saw fit. This he did, and subse- 
 quently tendered the stock to his principal, which was declined. 
 The manager of the corporation testifies as follows : " I told 
 Mr. Webb he had my permission to trade machines for stocky 
 but that he must account to the company in money. * * * 
 By the contract with defendant, the company was not to take 
 any horses for machines, and he was to sell the property 
 received for machines, and pay over the money." 
 
34 Phalen's Criminal Cases. 
 
 The legal effect of this authorization, in opposition to the 
 terms of the original contract, was an essential departure 
 from the original, employment, and an essential change in the 
 status of the agency, as affected by the statutes of embezzle- 
 ment. By the terms of the contract, the appellant was to 
 receive in payment for machines only money and notes, and 
 these proceeds of sales he was obligated to turn over to the 
 company. Without a variation in the contract, an embezzle- 
 ment of either class of proceeds would have properly sub- 
 jected him to prosecution ; for beyond question, the money or 
 notes would be the property of the company, and received by 
 him by virtue of his agency. But with a change of the con- 
 tract there resulted a change in the character of tlie proceeds 
 received from a sale of the machines. When defendant 
 exchanged them for horses, by authority, and the company 
 refused to receive the horses, to whom did they belong? Not 
 to the company, for it disowned them. The act of sale did 
 not constitute an embezzlement, for that was authorized, and 
 he is not charged with that species of embezzlement. The 
 horses being the property of appellant, the proceeds of their 
 sale were likewise his property, and not specifically the pro- 
 perty of the company; and by the action of the latter, it had 
 remitted itself to the character of an ordinary creditor, and 
 held a personal demand against the appellant for the value of 
 their machines, less his commissions, and could not have 
 enforced a suit at law for the specific money received by him 
 upon a sale of the horses. Other features of the evidence 
 tend to sustain this view, and show a disagreement between 
 the parties as to the terms of a proper settlement of the trans- 
 actions between them, a failure to effect which resulted in this 
 prosecution. 
 
 The views we have expressed obviously conflict with those 
 under which the case was submitted to the jury, and a new 
 trial must therefore be awarded. The judgment is reversed 
 and the cause remanded. 
 
 Reversed and remanded. 
 
Frederick M. Ker v. The People. 25 
 
 Frederick M. Ker v. The People. 
 
 ::Supreme Court of Illinois Northern Grand Division, March 
 term A. D., 1884. 
 
 Embezzlement. — Jurisdiction, Extradition, International Law. 
 
 The manner of the capture of one accused of crime who has fled from 
 the Justice of the State, cannot affect in any manner the jurisdiction of 
 the court before whom he is brought for trial. 
 
 It is not allowable on the trial of one who has been surrendered by a 
 sister state, under the laws of Congress, as a fugitive from justice, to en- 
 quire as to the regularity or irregularity of such surrender, it is suflB cient 
 the accused is in court to require him to answer the indictment against 
 him. 
 
 Should the laws of a foreign nation be outraged by the wrongful cap- 
 ture and transportation of a party accused of crime and who at the time 
 was domiciled within its jurisdiction, incase a controversy arose it would 
 seem it would be between the two general governments and as to which 
 the state courts could determine nothing. 
 
 That which was done, if wrong, was in violation of international law, 
 and if the government of Peru does not complain of the infraction of in- 
 ternational law, it does not lie in the mouth of defendant to make com- 
 plaint on its behalf. 
 
 Had defendant pleaded immunity from prosecution on the counts which 
 charged him with embezzlement, and not as to the count that charged 
 him with larceny as at common law, which is an extraditable crime under 
 the treaty with Peru, the plea might have been good, as to the counts 
 which charged him with embezzlement. That he did not do. By his 
 plea he sought immunity from prosecution on the whole indictment. 
 Being bad as to one count the plea would be bad as to the whole indict- 
 iment which it professed to answer. 
 
 It is sufficient under the law of this State the property is alleged in the 
 indictment to belong to the persons who in fact own it or have a special 
 interest in it. 
 
 Embezzlement is a crime defined by statute, and it was entirely compe- 
 tent for the, legislator to declare what acts would constitute the crime and 
 fix the measure of punishment. 
 
 The statute has a broad meaning and will embrace all wrongful conduct 
 by confidential clerks, agents or servants and leave no opportunity for 
 escape from just punishment on mere technical objections not affecting 
 the guilt or innocence of the party accused. 
 
 Where a defendant's employment gives him access for any purpose to 
 his master's property, or brings it under his care, charge, or custody for 
 safe keeping, preservation or security, the fiduciary or confidential rela- 
 
26 Phalen's Criminal Cases. 
 
 tion is complete. It is enough, that his position, whatever it was, gave him 
 access for some purpose to the place where the property was kept. 
 
 Under Sees. 75 and 76 of the Criminal Code of Illinois the defendant 
 may be charged with the embezzlement of several different sums of 
 money, or articles of security which have been fraudulently converted by 
 him at dififerent times extending through the whole period of his employ- 
 ment, and the people will not be required to elect as to any particular 
 item or items the whole evidence of what he did by reason of his confi- 
 dential relation may go to the jury, and if the jury find from the whole 
 evidence that any money or securities have been fraudulently converted to 
 his own use by defendant, that will be suflBcient to sustain the charge of 
 embezzlement. 
 
 A bank clerk, who had access to the vaults, took money and securities 
 therefrom and converted the same to his own use. Held that he was 
 rightly convicted of embezzlement. 
 
 The statute of Illinois defining the crime of embezzlement is much 
 more comprehensive than any English statute on the same subject, and 
 especially that section which defines embezzlement by a clerk or confi- 
 dential agent, and the decision of the English courts construing their own 
 statutes in no way assist to a correct understanding of the statutes of this 
 state on the same subject. 
 
 The case is sufficiently stated in the opinion of the court. 
 
 Robert Hervey and C. Stuart Beattie, for plaintiff in error. 
 
 Mr. Luther Laiiin Mills and Messrs. Sweat, Haskell & 
 Grosscup, for the people. 
 
 Scott, J. It appears from the record before this court that at 
 the February term, 1883, of the Criminal Court of Cook County,, 
 the Grand Jury presented in open court an indictment against 
 Frederick M. Ker, which contained four counts, in the first of 
 which he is charged with embezzlement hs bailee, in the second 
 with embezzlement as a clerk, in the third with larceny as at 
 common law, and the fourth with receiving stolen property. In 
 the several counts the money, funds and securities, alleged to 
 have been embezzled, and stolen, are alleged to be the personal 
 goods and property of David Preston, Samuel A. Kean and 
 Elisha Gray, a co-partnership firm under the name of Preston, 
 Kean & Co. On the 13th day of October, 1883, defendant on 
 being arraigned, filed a plea to the jurisdiction of the court 
 ov^r his person, the effect of which was to ask immunity from 
 
Frederick M. Kbr v. The People. 3T 
 
 prosecution on the indictment then pending against him for 
 the reasons set forth in his plea. To that plea a general de- 
 murrer was sustained and defendant was by the court required 
 to plead over. Against the protest of defendant that he was 
 entitled to immunity from prosecution for the offence alleged 
 against him on the indictment, on account of the matter set 
 forth in his plea, and because he refused to plead over, the 
 court entered a plea of not guilty for him. On the trial th& 
 jury found defendant guilty of embezzlement as charged in 
 the indictment and fixed the term of punishment at ten years 
 in the penitentiary. A motion for a new trial entered by 
 defendant was overruled and the court pronounced judgment 
 on the verdict, and defendant brings the case to this court on 
 error. 
 
 One ground of error relied on with much confidence is the 
 decision of the court sustaining the demurrer to defendant's 
 plea, calling in question the right of jurisdiction of the court 
 to proceed with the trial against him, or what is the same 
 thing it is insisted it was error in the court not to grant him 
 immunity from prosecution. 
 
 Of course the demurrer admits the facts alleged in the plea 
 and there can be no controversy as to what they are. Shortly 
 stated, the principal facts are, that upon the written request of 
 the Governor of Illinois, the President of the United States 
 issued an extradition warrant directed to the Government, and 
 named therein Henry G. Julian as messenger, to receive de- 
 fendant from the authorities of Peru. The crime of larceny 
 with which defendant stood charged is one of the offences 
 specified in the treaty for which a party should be surrendered, 
 and it was specified in the President's warrant as the crime 
 for which his surrender was demanded. On the same day the 
 executive warrant issued, the Secretary of State at Wash- 
 ington made a written request upon the United States Consul 
 acting at Lima, to procure the executive of Pern to surrender 
 defendant to Julian, under the treaty between the United 
 States and Peru, of September 12, 1870, which it is averred 
 was and is the only treaty in force between the two Govern- 
 ments. It is then averred no request was ever made by the 
 United States Consul at Lima, or by Julian or any other 
 
38 Phalen's Criminal Gases. 
 
 person before any of the authorities or diplomatic agents of 
 the government of Peru, for the surrender of defendant in 
 ■compliance with the President's warrant, nor was any consent 
 or authority given by the authorities or diplomatic agents of 
 Peru, to Julian, or to any other person, to arrest and remove de- 
 fendant from Peru for any cause, and on the 3d day of April, 
 1883, while defendant was domiciled at Lima, in Peru, Julian, 
 with the aid of persons whose names are unknown, without 
 any authority or warrant from the authorities or diplomatic 
 agents of Peru, arrested defendant and forced him to go to 
 •Oallao and then placed him on board the steamship " Essex," 
 and kept him a close prisoner on such vessel. 
 
 Afterward the "Essex" sailed to the port of Honolulu, with 
 defendant on board, and there at that port, but perhaps out- 
 side the harbor, defendant was transferred to the " City of 
 Sidney " an American ship about to sail for San Francisco in 
 California. The steamship " Essex " was a vessel belonging 
 to the navy of the United States, and was at the time com- 
 manded by ofBeers of the navy. The " City of Sidney " was 
 perhaps an American merchant vessel, but how that is matters 
 little. While these events were transpiring, the parties pro- 
 secuting, procured from the Governor of the State of Illinois, 
 a requisition upon the Governor of California, for the arrest 
 of defendant, in which Frank Warner was named as a suitable 
 person to receive defendant from the authorities of California, 
 and bring him to this State for trial. Afterwards, the Gover- 
 nor of California issued his warrant in pursuance with the 
 requisition of the Governor of the State of Illinois, for the ar- 
 rest of defendant. On his arrival at San Francisco, in the 
 " City of Sidney," defendant was arrested on the warrant of 
 the Governor of California, and delivered to Frank Warner, 
 the messenger named to receive him, and was by him 
 brought into this State, and delivered into the custody of 
 of the Sheriff of Cook county, where the indictment on which 
 he was afterwards tried was found, and was then pending in 
 the Criminal court against him. Other matters are contained 
 in the plea, but as they are not necessary to an understanding 
 of the discussion that is to follow, they need not be stated. 
 
 One proposition asserted by counsel for the defence is, the 
 
Feedeeick M. Kee v. The People. 2& 
 
 Criminal court of Cook county never obtained jurisdiction of 
 defendant by " due process of law," for the purpose of trying 
 him for larceny or any other crime. 
 
 The position taken on this branch of the case is much 
 weakened by the consideration, it appears from the averments 
 •of the plea itself, the bringing of defendant into the State, 
 trying him for an oifence committed within the limits, was 
 by " due process of law," whatever wrong may have been done 
 him elsewhere. The Governor of the State of Illinois made 
 a requisition upon the Governor of the State of California,, 
 for the surrender of defendant as a fugitive from the justice 
 of the State, and designated Frank Warner to receive defen- 
 dant and bring him back to this State. In compliance with 
 that requisition, the Governor of California did issue his war- 
 rant upon which defendant was arrested within the jurisdic- 
 tion of the State, and delivered into the custody of Frank 
 Warner, wlio bronght defendant into this State and delivered 
 him to the Sheriff of Cook county. That it was in accordance 
 with usage and law. It is not allowable on the trial of one 
 who has been surrendered by a sister State under the laws of 
 Congress, as a fugitive from justice, to enquire as to the regu- 
 larity or irregularity of such surrender. 
 
 It affects neither the guilt or innocence of the accused nor 
 the jurisdiction of the court to try him. 
 
 Conceding as may be done, defendant was arrested in Peru 
 and brought into the State of California without warrant of 
 law, the State now prosecuting defendant was not a party to 
 any violation of any treaty or other public law. The applica- 
 tion the State made to the Executive department of the General 
 Government, was for the legal arrest of defendant, and if there 
 was any abuse of the warrant of the Federal Goverment, or any 
 treaty obligation with a friendly power violated, it was not done 
 by the State now conducting the prosecution against defen- 
 dant. Julian, to whom it was made the illegal arrest of defendant 
 and brought him within the jurisdiction of the State of Cali- 
 fornia, was acting either under the warrant of the President 
 or on his own responsibility. He did not bring defendant 
 into this State at all. It was done by another person on a 
 requisition from the Governor of Illinois, and on a warrant 
 
30 Phalen's Criminal Cases. 
 
 issued by the Governor of California for his arrest in that 
 State. 
 
 Of the action of the State prosecuting him, defendant can 
 have no just ground of complaint that he was brought within 
 its jurisdiction without " due process of law." The People v. 
 Rowe, 4 Parker Cr. Rep., 253; Advance v. Lagrave, 59 N. Y., 
 110; The State v. Ross, 21 Iowa, 467. 
 
 But waiving every objection to the plea that may seem too 
 technical, and considering it on the broadest grounds taken on 
 its support, it is thought the demurrer was properly sustained. 
 Three propositions are stated, which if they can be main- 
 tained, it is insisted, lead to the conclusion the Criminal Court 
 of Cook county never obtained jurisdiction of defendant, to try 
 him for larceny or other crime. 1st. That the United States by 
 its treaty with the Republic of Peru, provided " due process 
 of law " for getting jurisdiction of persons domiciled in that 
 ■country, charged with having committed certain crimes, among 
 which is larceny, of which defendant was charged in one count 
 of the indictment against him. 2d. That such " due process 
 of law " must be obeyed in all its terms, expressed or implied, 
 and 3d. That such "due process of law," for the purpose of 
 getting jurisdiction in such cases, by necessary implication, 
 excluding any other mode of getting jurisdiction. 
 
 Tlie defendant was not in fact brought within the jurisdiction 
 of the United States, under its treaty with Peru, but the argu- 
 ment assumes that if defendant was brought back to the United 
 States, otherwise than under the treaty between the United 
 States and Peru, his capture and detention would be unlawful, as 
 being in violation of a right of asylum he is supposed to have 
 had, under the treaty, at the place he was domiciled when cap- 
 tured. No principle is suggested on which this proposition 
 <;an be maintained as broadly as stated, nor in any case Eng- 
 lish or American, cited, where the decision was rendered on 
 analogous facts with the case being considered, that holds the 
 <Joctrine contended for. Undoubtedly, at common law, the 
 rule is, the court trying a party for a crime committed within 
 its jurisdiction, will not investigate the manner of his cap- 
 ture, in case he had fled to a foreign country and had been 
 brought back to its jurisdiction, although his capture had 
 
Fbedeeick M. Kee v. The People. 31 
 
 been plainly without authority of law. It is sufficient the 
 accused is in court, to require him to answer the indictment 
 against him. It is thought and with good reasons, any other 
 rule would work great embarrassment in the administration 
 of the criminal law. In ex parte Scott, 9 Barn, and Cress., 
 446, the accused was arrested at Brussels by a police officer, 
 without any warrant by law, and brought back to England. 
 The prisoner was brought up on Habeas Corpus, that she 
 might be discharged. It appeared a true bill had been found 
 against her for a misdemeanor, and Lord Linderden before 
 whom the writ was heard, refused to enquire into the circum- 
 stances of her arrest, whether it was legal or illegal, and held 
 the accused amenable to jurisdiction. 
 
 It was said in that case, if the acts complained of were done 
 against the law of a foreign country, that countrj' might have 
 vindicated its own law. It does not seem to be doubted that 
 this case accurately states the common law on this subject. 
 Nor is it doubted that many well considered American cases 
 •declare the same doctrine. The State v. Smith Bailey (South 
 •Cor.) Law Eep., 2814 and note. The State v. Brewester,-7 Yir., 
 118. Advance v. Lagrave, 59 K Y., 110. The State v. Boss, 
 21 Iowa, 467. U. S. v. Calwell, 8 Blatch, 131. U. S. v. Law- 
 rence, 13 Blatch., 295. 
 
 The rule is different in civil cases, for the reason, a 'party 
 j^uilty of a fraud in bringing a party within the jurisdiction 
 of the court will not be permitted to have a personal advan- 
 tage from his own wrongful conduct. 
 
 It may be well to recur again to the distinction taken by 
 counsel, which it is insisted takes the case being considered 
 out of the rule established by the English and American cases 
 cited, that some further discussion may be had upon it. The 
 position taken is that where a treaty exists between two gov- 
 ernments, no capture can lawfully be had of a party accused of 
 crime in the country to which he has fled for asylum, except 
 under the terms of such treaty, and if a capture and [removal 
 of a party is made in violation of the treaty, it ,is without 
 " due process of law," and the court within whose jurisdiction 
 the accused is wrongfully brought, obtains no rightful jurisdic- 
 tion to try him for any crime, either for the crime for which 
 
32 Phalen's Oeiminal Cases. 
 
 it was attempted to extradite him or for any other crime.- 
 This exact question arising in this case was not involved in. 
 either of the cases ut supra, nor indeed has the attention of 
 the court been called to any case where the facts were pre- 
 cisely analogous. 
 
 Of course, no one would contend the manner of the capture 
 of one accused of crime who has fled from the jurisdiction of 
 the State, could affect in any manner the question of his guilt 
 or innocence of the crime charged in the indictment, and how 
 can it affect the jurisdiction of the court before whom he 
 stands, to try him for crime is a proposition not supported by 
 any satisfactory reasoning nor by the analogies of the law. 
 But place it on the yet broader and perhaps more reasonable 
 ground, it is not perceived how any irregularity in the cap- 
 ture and return of a fugitive from the justice of the state, can 
 secure him immunity from prosecution for crime whether it 
 is one for which he might be lawfully extradited under any 
 public law or not. No reason arising out of any public exi- 
 gency or any consideration as to the liberty of the citizen 
 requires the adoption of any such doctrine into the jurispru- 
 dence of the State. 
 
 Should the laws of a foreiga nation be outraged by the 
 wrongful capture and transportation of a party accused of 
 crime, and who at the time was domiciled within its jurisdic- 
 tion, in case a controversy arose it would seem it would be 
 between the two general governments, and as to which the 
 state courts could determine nothing. It is confidently 
 insisted' all through the argument for the defendant, that 
 defendant's right of asylum under the treaty between the two 
 governments was complete when he was domiciled in Peru, 
 and that he has been deprived of that right by sheer force, 
 without "due process of law." But is the position tenable?' 
 Upon what principle can it be maintained? 
 
 As a question of law, on the facts as stated in the plea, 
 defendant never had any right of asylum in Peru that would 
 secure him immunity from arrest on account of offences 
 mentioned in the treaty, and for which a party was subject to 
 extradition. Conceding, as may be done for the purpose of 
 this decision, the proposition insisted upon, the enumeratioa 
 
Feedkeick M. Keb v. The People. 33 
 
 of certain crimes in the treaty for which a party may be extra- 
 dited, implies that as to all other offences he is guaranteed 
 asylum in the country where he is domiciled, how does that, 
 if true, affect the question being considered ? As to the crime 
 of larceny with which defendant was charged he could have no 
 right of asylum in Peru as that is one of the crimes enumer- 
 ated in the treaty, and what right secured by treaty, was vio- 
 lated when he was arrested either with or without due process 
 of law ? The accused was subject to extradition at any time 
 under the treaty, and what difference can it make in law as to 
 the right of a state court to try defendant for an extradition 
 crime, whether the existing treaty was in fact observed in all 
 its features. Tliat which was done if wrong, was in violation 
 of international law, and if the government of Peru does not 
 complain of the arrest of defendant within its jurisdiction as 
 an infraction of international law, it does not lie in the moutb 
 of defendant to make complaint on its behalf. Questions 
 arising under international law concern principally the nations 
 involved and their settlement is a national affair. Rejecting 
 as must be done, the erroneous assumption, defendant had the 
 right of asylum in Peru, under the treaty between the two 
 governments, and the argument for the defence is wholly with- 
 out force. It is plain he had no right of asylum the law of 
 either government would protect. He, as to the crime of 
 larceny with which defendant stood indicted, had provided no 
 asylum that would secure him immunity from arrest for that 
 crime in the country where he was domiciled. The utmost 
 that can be claimed is that the person having the President's 
 warrant for the extradition of defendant proceeded irregularly, 
 and may have rendered himself liable as for a personal tres- 
 pass, but he deprived defendant of no right of asylum in the 
 country of his temporary domicile, for the simple reason 
 he had none secured by any public law of which he could be 
 dispossessed. 
 
 The attention of the court has been called to Com. v. 
 Haines, 13 Bush., 700; The State v. Yanderpool, 16 vol., C. 
 L. N. p. 34, and other analogous cases upon which great stress 
 is laid as holding principles it is insisted ought to control the 
 present decision. These cases have been examined and it is 
 3 
 
34 Phalen's Criminal Cases. 
 
 found they hold the doctrine, a fugitive from the justice of the 
 state, who has been brought back from the country to which he 
 had fled, on a warrant of extradition in conformity with the 
 terms of a treaty existing between the two governments cannot 
 be proceeded against or tried by the state for any other oifence 
 than those mentioned in the treaty, and for which he was 
 extradited, without first being aflForded an opportunity to 
 return to the country whence he had been brought.. Some of 
 these cases also declare the familiar principle of international 
 law, that the right of one government to demand and receive 
 from another the custody of an offender against its laws, and 
 who has sought an asylum in such foreign country, depends 
 upon treaty stipulations between such governments. Where 
 no treaty exists, no obligation that can be insisted upon exists to 
 surrender criminals for trial to the government from which they 
 fled, but as a matter of course between friendly nations, great 
 offenders are usually surrendered on request from the govern- 
 ment claiming the right to try them. A principle running 
 through this latter class of cases has much that commends 
 itself to a sense of justice. It is that where a person whose 
 extradition has been granted for trial, for a particular crime 
 named in the extradition warrant, the demanding government 
 obtains no lawful right to try him for any other offence with- 
 our bad faith to the government that consented to his extra- 
 dition, and for which it would have just grounds to demand 
 reparation. Such an act would be in violation of both the 
 letter and spirit of the treaty. But this doctrine, if it shall be 
 conceded it has for its support natural justice and even the 
 weight of authority, can have no application to the case being 
 considered. Here the complaint is, the treaty was not 
 observed in the capture and detention of defendant. It was 
 done by force outside of its provision. The extradition war- 
 rant, issued by the executive of the United States, demanded 
 defendant should be surrendered on a charge of larceny that 
 he might be tried for that ofl'ence. That is an extraditable 
 crime under the treaty with the government of Peru. It was 
 on that charge he was put on trial. It is true he was not con- 
 victed of larceny as at common law, but the same indictment 
 contained counts for embezzlement, an offence, of which if 
 
Feedebick M. Kek v. The People. 35 
 
 convicted, the statute declares " He shall be deemed guilty of 
 larceny," upon which he was tried at the same time of the 
 trial of the charge of larceny, and was convicted. 
 
 Embezzlement as defined in section seventy-four and seventy-, 
 five of the criminal code of this state, is not larceny at com- 
 mon law, and is perhaps not larceny in the sense that term is 
 used in the treaty with Pern, and for which a party may be 
 extradited. Had defendant pleaded immunity from prosecu- 
 tion on the counts which charge him with embezzlement, and 
 not as to the count that charges him with larceny as at com- 
 mon law, which is, as has been seen, an extraditable crime 
 under the treaty with Peru, then a closer analogy, would have 
 existed between his case and the cases last cited, and the ques- 
 tion might have been presented whether this court would 
 adopt the doctrine of those cases as sound law. That he did 
 not do. By his plea he sought immunity from prosecution 
 on the whole indictment. The plea might have been good, as 
 to the counts that charge embezzlement, being a uon-extra- 
 ditable off'ence, and not embraced in the extradition warrant, 
 and not good as to the count that charges larceny as at com- 
 mon law, which it is conceded was an extraditable ofience and 
 was embraced in the extradition warrant. Being bad as to 
 one count the plea would be bad as to the whole indictment 
 which it professes to answer. There is another reason that 
 leads to the same conclusion, the case in hand is not within 
 the rules declared in the latter line of decisions. It is that 
 defendant, as has been seen, was not surrendered by the govern- 
 ment of Peru under its treaty with the United States. 
 According to the averments in the plea, no effort was made to 
 obtain defendant on the extradition warrant, and the official 
 authorities of Peru were not asked to, and never did consent 
 to his capture within the jurisdiction of that government. 
 It was done by sheer force and not under the treaty at all. 
 That brings the case more nearly under the decision first cited 
 and they must be regarded as of controlling authority. 
 
 But aside from all authority, on principle, defendant has 
 shown no right to immunity from prosecution for the offences 
 for which he was indicted. The Federal government has itself 
 violated no treaty with the Republic of Peru. The arrest 
 
36 Phalen's Ckiminal Casks. 
 
 and detention of defendant was not by any authority of the 
 general government, and no obligation is implied on the part 
 of the Federal or any state government, to the Republic of 
 Peru, to secure defendant immunity from prosecution for any 
 offence. What was done was done by individual wrong, pre-. 
 ciselyaswas done in ex parte Scott, supra, and the State v. 
 Brewster, supra. The invasion of the sovereignty of Peru, if 
 any wrong was done, was done by individuals, perhaps some 
 of them owing no allegiance to the United States, and not by 
 the Federal government. Should the government of Peru 
 complain its sovereignty had been invaded by citizens of the 
 United States, that would be a question arising under inter- 
 national law and not under any act of Congress or treaty of 
 the United States. Nor will defendant be permitted to com- 
 plain that his right of asylum in Peru has been violated, for 
 as before stated, he had no right of asylum as against the 
 crime of larceny, under the treaty with Peru, nor any absolute 
 right to asylum under comity existing between nations. 
 
 Whether a nation will surrender a fugitive from justice that 
 seeks with it an asylum, is a question of national comity rest- 
 ing in discretion. In no view that can be taken is defendant 
 entitled to immunity from prosecution on the indictment 
 under which he was convicted. 
 
 Errors have been assigned that affects the merits of the 
 case on the trial, that must be considered. That defendant 
 converted to his own use large sums of money and securities 
 belonging to the firm of Preston, Kean & Co., or to other per- 
 sons, in their care and custody, admits of no doubt. There is 
 no pretense that he is not guilty of criminal conduct. The 
 objections taken to the legality of his conviction are of the 
 most technical character. 
 
 Thepoint is made there is a variance in the pleading and 
 the proof. It is alleged in the indictment, the funds and secu- 
 rities embezzled were the personal goods of David Preston, 
 Samuel A. Kean and Elisha Gray, a co-partnership under the 
 name of Prpston, Keau & Co., and the insistence is, the firm in 
 law was composed of David Preston, Samuel A. Kean and 
 James Payne with Elisha Gray as special partner. Certified 
 copies from the record and files of the County Clerk's office 
 
Feedeeiok M. Kee v. The People. 37 
 
 show the formation of a limited partnership pursuant to the 
 provisions of the statutes, and that the firm was at one time 
 composed of David Preston, Samuel A. Kean and James 
 Payne, as general partners, with Elisha Gray as special partner. 
 .That was in May, 1881. The oral testimony given shows that 
 in November, 1881, the special partnership ceased, and since 
 then the firm as a matter of fact has been composed of David 
 Preston, Samuel A. Kean, and Elisha Gray. 
 
 The partnership articles of May, 1881, were made a matter 
 of record, but it does not appear there were any partnership 
 articles after that date, and it is insisted it is not legal to show 
 by oral evidence, as was done, that Payne ceased to be a part- 
 ner in November, 1881. The objection taken, rests on section 
 12, Chap. 84, E. S., 1874, which provides, no dissolution of a 
 limited partnership shall take place except by operation of 
 law, before the time specified in the certificate made a matter 
 of record, unless a notice of such dissolution is also recorded 
 in the same registry, and other provisions of the statute com- 
 plied with. The time for the duration of the partnership, 
 under the Articles of May, 1881, had not expired in Novem- 
 ber, 1881, when an agreement was made between the partners 
 that Payne should cease to be a partner, and Gray should 
 become a general partner. The firm name continued as it 
 was, but no notice of the change of the persons composing the 
 firm was made a matter of record, nor was any other public 
 notice given, as the statute requires shall be given. 
 
 On account of the non-compliance with the statute in this 
 regard, it is said the firm should be regarded as still being 
 composed of the same persons as composed it under the articles 
 of May, 1881. That may be true as to creditors and persons 
 dealing with the firm without actual notice, but as between 
 the partners themselves Payne had no interest whatever in 
 the firm assets, after the agreement he should cease to be a 
 partner. It is suflieierit under the law of this state that the 
 property is alleged in the indictment to belong to the person 
 who in fact own it or have a special interest in it. That was 
 done in this case, and there is no variance between the proof 
 and the allegations of the indictment in this respect. 
 
 It is insisted the evidence shows a cumulation of offences, 
 
38 Phalen's Criminal Cases. 
 
 EDd for that reason it was error in the court to deny defen- 
 dant's motion, to compel the prosecution to elect upon what 
 alleged act of larceny or embezzlement a conviction would be 
 asked. The court by its rulings submitted all the evidence 
 touching the embezzlement of funds and securities by defen- 
 dant, to the jury, and it is not perceived how it could properly 
 have done otherwise. Embezzlement is a crime defined by 
 statute, and it was entirely competent for the legislature to 
 declare what acts would constitute the crime and fix the 
 measure of punishment. One element that enters into the 
 statutory definition of embezzlement is the fiduciary or con- 
 fidential relation. Such relation affords the amplest oppor- 
 tunity to misappropriate money, funds and securities, and 
 often presents great diificulty in proving exactly when and 
 how it was done. This is especially true with regard to clerks 
 and confidential agents in banks or other corporations or firms 
 doing a large business and who are entrusted in whole or in 
 part with the care or custody of funds, securities and property 
 belonging to banks or other corporations, or to a co-partner- 
 ship. It is difficult in such cases, if at all possible, to prove 
 with certainty when or how the embezzlement was effected. 
 It is of course done with a view to avoid detection, and the 
 confidential relation existing wards off suspicion. The em- 
 bezzlement may and most often does consist of many acts 
 done in a series of years, and the facts at last disclose that 
 the employer's money and funds are embezzled, is the crime 
 against which the statute is leveled. 
 
 In such case, should the prosecution be compelled to elect, it 
 would claim a conviction for only one of the many acts of the 
 series that constitute the corpus delicti. It would be doubt- 
 ful if a conviction could be had under Section 75 and 76 of 
 the Criminal Code against the clerk in a bank or other corpor- 
 ation or a co-partnership, although the accused might be con- 
 ceded to b"e guilty of embezzling large suras of money in the 
 aggregate. 
 
 It might be otherwise, or different, under Section 74 of the 
 Criminal Code, where distinct sums of money or articles of 
 personal propertj' are or may be delivered to the accused on 
 different occasions. 
 
Frederick M. Ker v. The People. 39 
 
 Such distinct acts might very readily be susceptible of di- 
 rect proof, for the act of delivering implies actual knowledge 
 in some one who could be a witness. But no such opportuni- 
 ty is afforded to make direct proof as to acts done under Sec- 
 tions 75 and 76, defining embezzlement. 
 
 The body of the crime consists of many acts done by vir- 
 tue of the confidential relations existing between the employer 
 and the employee, with funds, moneys or securities, over which 
 the servant is given care or custody in whole or in part, by 
 virtue of his employment. The separate acts may not be 
 susceptible of direct proof, but the aggregate result is, and that 
 is embezzlement. To avoid the difficulty no doubt that might 
 be encountered in making proof in such cases, it is provided 
 by statute Section, 82 of the Criminal Code, in the prosecution 
 for the offence of embezzling, fraudulently converting to one's 
 own use, or fraudulently taking or secreting with intent so 
 to embezzle and convert, the bullion, money, notes, bank notes, 
 checks, drafts, bills of exchange or other securities for money, 
 by a cashier or other officer, clerk or agents of such person, 
 bank, incorporated company or corporation, or co-partnership, 
 it shall be sufficient to allege generally in the indictment an 
 embezzlement, fraudulent conversion or taking with such in- 
 tent, funds of such person, bank, incorporated company or 
 co-partnership, to ascertain value or amount without specify- 
 ing any particulars of such embezzlement. Indeed, in the 
 very nature of the crime, it would be impracticable in most 
 cases to do more. The case being considered, shows in a 
 marked degree the necessity for the rule provided by statute, 
 otherwise it would be difficult to make the proof and the al- 
 legations of the indictment correspond. On the trial the same 
 liberal rule for the detection and punishment of persons guilty 
 of misconduct by reason of their confidential relations with 
 their employer prevails, for it is provided in the same section 
 of the Criminal Code, evidence may be given of any such em- 
 bezzlement, fraudulent conversion or taking with such in- 
 tent, and it shall be sufficient to maintain the charge in the 
 indictment, if it is proved, that any bullion, money, note, 
 bank note, check, draft, bill of exchange or other securities for 
 money, of such person, bank, incorporated company or co- 
 
40 Phalen's Criminal Cases. 
 
 partnership, of whatever value or amount, was fraudulently 
 embezzled, converted or taken with such intent by such cashier 
 or other officer, clerk, agent, or servant, under this rule, which 
 is certainly a wise one, it was proper the court should permit 
 all the evidence of what defendant did by reason of his con- 
 fidential relations with the banking firm whose clerk he was, 
 to go to the jury, as was done, and if the jury found from the 
 whole evidence, any funds or securities for money had been 
 embezzled or fraudulently converted to his own use by defen- 
 dant, it was sufficient to maintain the charge of embezzlement, 
 as that crime is defined in the 76th and 76th Sections of the 
 Criminal Code. 
 
 Any other rule would render it exceedingly difficult to se- 
 cure a conviction under either of these sections of the statute. 
 The view taken by the defence of this statute is too narrow 
 and technical to be adopted. It has a broader meaning, and 
 whe.n correctly read it will embrace all wrongful conduct by 
 confidential clerks, agents or servants, and leave no opportu- 
 nity for escape from just punishment, on mere technical objec- 
 tions, not affecting the guilt or innocence of the party accused. 
 The cases of Krib v. The People, 82 111., and Goodhue v. The 
 People, 94 111., 37, cited by the defence, were prosecutions 
 for embezzlement under other sections of the Criminal 
 Code, and illustrate no phase of the case being considered. 
 There was no error in the court refusing to require the 
 prosecution to elect for what particular act of embezzle- 
 ment a conviction would be asked. 
 
 The last ground of objection is, the verdict is without evi- 
 dence and against the law. Ordinarily, whether there is evi- 
 dence to warrant a conviction is a question for the jury, the 
 court taking care always to see that no manifest injury is 
 done. With that view the evidence has been considered. It 
 is seen the testimony of other witnesses taken in connection 
 with defendant's letter to the banking firm, written on the eve 
 of his departure, with the schedule attached of securities and 
 money embezzled, constitute ample proof of the corpus de- 
 licti. It would answer no good purpose to enter upon an an- 
 alysis of the evidence, it is sufficient to state the conclusion 
 reached. But whether the verdict is contrary to law is a 
 
Frederick M. Kkr v. The People. 41 
 
 ■question for the court, and that has been fully considered. 
 The objection in this regard goes to the extent, that admit- 
 ting all the evidence tends to prove it does not constitute em- 
 bezzlement under the 75th Section or any other section of the 
 Criminal Code. The argument on this branch of the case is 
 based on a misconstruction of the section of the Criminal 
 Code defining the crime of embezzlement. There are two counts 
 in the indictment that charge defendant with embezzlement. 
 ■On examination it will be seen they are both substantially in 
 the language of the statute, and that is all that the law re- 
 quires. In the last count it is charged defendant embezzled 
 securities for money, gold coin and other funds and property, 
 of Preston, Kean & Co. " then and there entrusted " to defen- 
 dant, and in the 2d count it is charged, defendant being then 
 and there a clerk in the employ of Preston, Kean & Co., 
 fraudulently and feloniously did, without then and there hav- 
 ing the consent of such firm, embezzle and fraudulently con- 
 vert to his own use a large amount of the personal goods, 
 funds and money, all of which is described with sufficient 
 iparticularity which personal goods, money and funds, " then 
 and there came to the possession " of defendant " by virtue of 
 such employment.'' It will be observed the 75th section of 
 the statute under which the second count in the indictment 
 was evidently framed, makes it an offence for a person occu- 
 pying such confidential relations to embezzle property of his 
 employer or that of another, that comes to his possession or 
 under his care, or to secret the same with intent to do so, " by 
 virtue of his employment " with the owner or owners. 
 
 The words " under his care," found in the 75 section of the 
 statute, are not used in this second count of the indictment, 
 and it is contended the proof fails to show the funds and prop- 
 erty alleged to have been embezzled, were ever in the posses- 
 sion of defendant by virtue of his employment, and for that 
 reason it is said he is not guilty under this count. The word 
 "care,'' as used in the statute, is the equivalent of "custody," 
 and may mean "charge," "safe keeping," "preservation," 
 security, and it would seem it was in that sense it was used in 
 the statute. '' Possession," as used in the same section, has 
 perhaps a slightly different and broader meaning than the word 
 
42 Phalen's Ceiminal Cases. 
 
 "care," but it may also mean "to keep," "to take or seize hold," 
 " to hold or occupy," as an owner of property would or might 
 do. It matters little whether one or both words were used in 
 the indictment. A close reading of the testimony will show 
 the funds embezzled were quite as much in the possession of 
 defendant as tmder his oare. It is idle to say, in view of the 
 relations defendant sustained to the banking firm, as disclosed 
 by the testimony, that the funds and securities in the vaults 
 were not in possession of defendant, and other persons em- 
 ployed about the Bank, and who had access to such funds and 
 securities for one purpose or another. If the indictment can- 
 not be maintained on the ground the funds and securities 
 embezzled were in the possession of defendant, as that term is 
 used in the statute by virtue of his employment, itconld not, 
 had it been alleged they were under his care, or had it been 
 charged they came both to his possession and under his care 
 by virtue of his employment, and a case would be presented 
 where a clerk converted to his own use $44,000 of his em- 
 ployer's money and securities, and yet guilty of no crime 
 within the meaning of this section of the statute. So narrow 
 a construction as that insisted upon, would render nugatory this 
 section of the statute, which defines embezzlement by clerks 
 and confidential agents. 
 
 It seems to be claimed as to the money, bonds and property 
 alleged to have been embezzled of his employers, the taking 
 of them out of the vaults by defendant was larceny at com- 
 mon law, and therefore could not be embezzlement under the 
 75 section of the Criminal Code. No such subtle reasoning 
 as that will satisfy the common understanding. It is not de- 
 nied that defendant converted to his own use large suras of 
 money and securities belonging to the Bank, while he was in 
 its employ as a clerk, and that such funds did in some way 
 come to his possession. 
 
 How did he come to get possession of such funds and secu- 
 rities for money, if it were not by virtue of his employment? 
 Had he not been in the employ of this banking house he could 
 have had no access to those vaults. 
 
 No attempt will be made to ascertain defendant's exact 
 relation witli the Bank. It is enough to know his position, 
 
Feedeeick M. Kee v. The People. 45 
 
 whatever it was, gave him access for some purpose at least, to 
 the vaults, where the funds and securities were kept, and that 
 brought the funds and securities embezzled, into his possession, 
 or, what is really tlie same thing, under his care, in a measure, 
 by virtue of his employinent. It was simply by virtue of his 
 employment, and not otherwise, that he got possession of his 
 employer's money and securities and converted the same to 
 his own use, and that is embezzlement under the 75th section 
 of the Criminal Code. It is that for which he was indicted 
 and convicted, and it is the offence defined by the statute. 
 
 It is to be observed that the statutes of this state defining the 
 crime of embezzlement is much more comprehensive than any 
 English statutes on the same subject that we have examined, and 
 especially that section which defines embezzlement by aclerkor 
 confidential agent, who converts to his own use funds belonging 
 to his employer, which may come to his possession or under 
 his care by virtue of his employment, and the decisions of the 
 English courts, construing their own statutes, do not in any 
 way assist to a correct understanding of the statutes of this 
 state on the same subject. 
 
 Much of what is said by text writers, to which the attention 
 of the court has been called, was said with reference to Eng- 
 lish statutes, which are materially different from that section 
 of the statute of this state under which defendant was indicted. 
 On account of the dissimilarity of the statutes, it has not been 
 thought necessary to remark upon English embezzlement stat- 
 utes, nor upon the decisions of English courts construing them- 
 Decisions have been rendered by coiirts of some of our sister 
 states, construing statutes substantially like section 75 of the 
 Criminal Code of this state, that makes the embezzlement of 
 money or personal goods, larceny, among which are The People 
 V. Sherman, 10 Wend., 299; The People v. Dalton, 15 Wend., 
 581, and Lowenthal v. Tlie People, 32 Ala., 589. 
 
 So much of tiie reasoning in the opinions in the cases cited, 
 as is applicable to the present decision, may be read as being 
 in harmony with the views expressed in this opinion. 
 
 No error affecting the merits of the case appearing in the 
 record, the judgment is afiirmed. 
 
 Judgment affirmed. 
 
44 Phalen's Ceiminal Cases. 
 
 Note. — If a merchant's or banker's clerk have access to the money room 
 upon special occasion, or be sent to the drawer for money for a special 
 purpose; or if he be sent to bring money generally out of the drawer; 
 and at the time he take the opportunity of purloining money for his own 
 use ; he is as much guilty of felony as if he had no allowed access to it 
 whatever. This was not denied in Bazely's case, and therefore needed 
 not the aid of the stat. 39, Geo. 3, c. 85 ; 2d, East's P. C, 683. 
 
 The United States v. Fkank L. Taintoe. 
 
 (U Blatchford, 374, 2d V. S. Circuit, 1873.) 
 
 Embezzlement. — The defendant, who was cashier of the Atlantic Na- 
 tional Bank, was indicted under the 55Lh section of the national banking 
 act of June 3, 1864, (13 U. S. Statute at Large, 116), for embezzling, ab- 
 stracting, and wilfully misapplying the moneys and funds of said bank, 
 with intent to injure and defraud the association. The indictment con- 
 tained numerous counts designed to cover numerous distinct transactions, 
 and the several transactions were, by means of distinct counts, charged as 
 embezzlements, abstractions and misapplications. On the trial, evidence 
 was given to show that the defendant took money and funds of the bank, 
 and used them in stock speculations carried on in his own name, by de- 
 positing the same with a stockbroker, as margins. The defendant offered 
 evidence to show that his acts were known to the president and some of 
 the directors of the bank, and were sanctioned by them, and that all his 
 dealings with the funds was intended for the account and benefit of the 
 bank, and were believed by him to have been sanctioned by the president 
 and some of the directors. The evidence offered by the defendant was 
 excluded: Held that no error was committed in rejecting the evidence 
 offered by default. 
 
 Before Woodruff, Benedict and Blatchford, j j., Southern 
 District of New York, November 22, 1873. 
 
The United States v. Frank L. Taintoe. 45 
 
 The defendant was indicted under the 55th section of the 
 national banking act of June 3, 1864, (13, U. S. Statute at 
 Large, 116), for embezzling, abstracting, and wilfully misap- 
 plying the moneys and funds of the Atlantic National Bank, 
 of which he was cashier, with intent to injure and defraud 
 the association. The indictment contained numerous counts 
 designed to cover numerous distinct transactions, and the sev- 
 eral transactions were by means of distinct counts charged as 
 embezzlements, abstractions and misapplications. It was also 
 averred, that the acts were done to injure and defraud the 
 association. On the trial, evidence was given to show that the 
 defendant took moneys and funds of the bank, and used them 
 in stock speculations carried on in his own name, by deposi- 
 ting the same with a stock-broker as margins for stock bought, 
 on his account, which were to be held by the broker subject 
 to his order. The defendant offered to prove that his acts 
 were known to the president and some of the directors of the 
 bank, and were sanctioned by them, and that all his dealings 
 with the funds of the bank, as charged in the indictment, were 
 intended for the account and benefit of the bank, and were 
 believed by him to have been sanctioned by the president and 
 some of the directors, although there was no resolution of 
 the board of directors authorizing or sanctioning the same. 
 These offers were made only to disprove the averments in the 
 indictment, that the acts were done with intent to injure and 
 defraud the association. The evidence offered by the defend- 
 ant was excluded, and the suggestion being made by the court 
 that in case the defendant should be advised to move for a 
 new trial, to test the correctness of the ruling, Judges Wood- 
 ruff and Blatchford would be requested to take part in the 
 hearing of such motion, a motion for a new trial was accord- 
 ingly made and heard by the three judges. 
 
 George Bliss (District Attorney), for the United States. 
 
 A. Okey Hall and James C. Carter, for the defendant. 
 
 Benedict, J. The ruling called in question upon this mo- 
 tion involved two propositions, namely, that the guilty intent 
 
46 Phalen's Ceimina-l Cases. 
 
 •charged in the indictment was shown by the proof of the act 
 done by the defendant; and, further, that the facts offered to 
 be proved by the defendant would not, in law, avail to nega- 
 tive that intent. It has hardly been doubted, upon this mo- 
 tion, that the first of these propositions is correct. The cor- 
 rectness of the second is strenuously denied, and is now to be 
 determined. 
 
 It is a general rule of law, that a man must be held to in- 
 tend the necessary consequences of his acts. This rule is 
 applicable as well to cases of crime as in civil cases; for, 
 whatever proves intent anywhere proves it everywhere. It 
 has often been so applied. Furthermore, in certain cases, 
 and these criminal, the proof of guilty intent afforded by 
 evidence of acts knowingly done, has been held to be conclu- 
 sive, and not overthrown by proof of any other facts; and this 
 class of cases has not been limited to acts Tiiala in se, nor to 
 crimes at common law. On this argument, it was conceded 
 that, by virtue of the rule in question, the guilty intent is 
 conclusively shown by proof of the act done, where the nature 
 of the act is such that a general guilty intent is so clearly 
 manifested thereby as to admit of no question. It appears 
 to us, that the rule, even thus limited, covers the present case, 
 and justifies the decision made at the trial. For the acts 
 done by the defendant was clearly unlawful, and he is pre- 
 cluded from denying knowledge that it was so. He was an 
 officer of an association created under a statute which does 
 not permit any person to make such use of the funds of the 
 association as was here made. Furthermore, the acts of the 
 defendant rendered the association liable to a forfeiture of its 
 charter. Still further, it cast upon the bank a risk which at- 
 tached at the instant of the doing of the act, and this a risk 
 notoriously great, extraordinary in character, and outside the 
 bounds of proper commercial use. It placed the capital of the 
 bank beyond the control of the officers of the association, and it 
 was an unlawful dealing with the money of a corporation, be- 
 longing to a class of institutions whose welfare is intimately 
 connected with the public welfare, which are liable to be 
 depositaries of the public monej's, and which cannot justly be 
 considered to be merely private ^^ecuniary trusts. The acts 
 
The United States v. Fbank L. Taintoe. 47 
 
 of the defendant, therefore, necessarily involved injury, not 
 only to the association, but also, in a proper sense to the 
 public. An act having such characteristics, and involving 
 such consequences, when knowingly done, discloses moral 
 turpitude, and cannot be innocent. It may, therefore, well 
 be held that proof of such an act proves conclusively an in- 
 tent to injure, because, when knowingly done, it affords no 
 opportunity for justification or legal excuse, and manifests so 
 clearly a general guilty intent, as to make it of no consequence 
 what otiier particular intent co-existed therewith, and to pre- 
 clude inquiry as to such other intent, or into the motives 
 which impelled to its commission. A generous motive is not 
 inconsistent with a guilty intent, and proof of the one does 
 not disprove the other. Our opinion, therefore, is that the 
 circumstances offered to be proved by the defendant, would 
 not tend to disprove the guilty intent charged in the indict- 
 ment. 
 
 But it is contended that the phraseology of the statute 
 under which the indictment is framed, requires proof of some- 
 thing more than the general guilty intent necessarily involved 
 in such a misapplication of the funds of a national bank, in- 
 asmuch as it couples with the words "embezzle, abstract, and 
 wilfully misapply," the words " with intent to injure or de- 
 fraud the association," and thus requires the presence of a 
 corrupt motive, a design to cheat the association out of money, 
 in order to constitute the offence. It is necessary to deter- 
 mine whether the latter words, as here used, are intended to 
 be taken in connection with the words " embezzle, abstract, 
 or wilfully misapply," because this has been assumed by the 
 prosecution, and the indictment, in each count, charges an in- 
 tent to injure and defraud the association. The question pre- 
 sented, therefore, is as to the effect produced upon the words 
 " embezzle, abstract, or wilfully misapply," by the addition of 
 the words "with intent to injure or defraud the association." 
 
 In considering this phraseology, it will be noticed, that, 
 while the word " embezzle," and, perhaps, also, the word 
 " abstract," refers to acts done for the benefit of the actor as 
 against the bank, the word " misapply " covers acts having no 
 relation to the pecuniary profit or advantage of the doer there- 
 
48 Phalen's Criminal Cases. 
 
 of. A design to make criminal acts done without reference to- 
 personal advantage, is thus clearly disclosed, and it appears 
 that the intention of the statute was to cover cases of unlaw- 
 ful dealing with the funds of the bank by its officers, although 
 without a corrupt motive. This intentioil, manifested by the 
 insertion of an emphatic and significant term in the com- 
 mencement of the section, it cannot be supposed was intended 
 to be defeated by the subsequent use of the words, " with in- 
 tent to injure or defraud." ISTor can such effect be given these 
 words without treating the word " injure " as synonymous 
 with " defraud," and as referring to a misapplication for the 
 benefit of the doer. But, if the signification of the word 
 "defraud" be limited to a malicious dealing with property 
 for the personal advantage of the doer, and it is not always 
 to be limited, the word "injure " is not of such limited ap- 
 plication, and was doubtless inserted to cover cases of mis- 
 application causing injury to the association, without benefit 
 to the offender. The guilty intent required by the statute 
 would, therefore, still exist, although it be shown that no per- 
 sonal pecuniary benefit was anticipated by the defendant, and 
 the requirement of the statute is fulfilled by the defendant, 
 and the requirement of the statute is fulfilled by proof 
 of genera] guilty intent involved in the act, knowingly com- 
 mitted. 
 
 The phrase " intent to injure or defraud " is the same one 
 used in indictments for forgery. There it refers to a general 
 guilty intent, and such indictments are held conclusively 
 proved when the act is proved to have been knowingly com- 
 mitted. The phrase should be considered to have the same 
 meaning in this statute, and to be proved in the same way. 
 Nor does this construction render the words nugatory. On 
 the contrary, they are given precisely the same effect which 
 they are held to have in indictments where their presence has 
 been considered to be necessary. A similar effect has been 
 given in the same phrase in other statutes. Thus Lord Ch. 
 J. Tindal has observed, that " where a statute directs that, to 
 complete an offence, it must have been done with an intent to 
 injure or defraud any person, there is no occasion that any 
 malice or ill-will should subsist against the person whose pro- 
 
The United States v. Fjjank L. Taintok. 49 
 
 perty is so destroyed. It is a malicious act in contemplation 
 of law when a man wilfully does that which is illegal, and 
 which in its necessary consequence, must injure his neigh- 
 bor." 5 C. & P., 266,, note; 2 Kuss. on Crimes, p. 575; 
 Com. V. Snelling, 15 Pick , 340. It is, indeed, true, that this 
 construction of the statute underconsideration, imputes to the 
 legislature the policy of making some acts criminal which 
 may not have been before classed as crimes; and if, as it seems 
 to be here suggested, the moral sense of the business commu- 
 nity has become so blunted that such acts as this defendant is 
 conceded to have committed have come to be considered " in- 
 nocent, or even praiseworthy," the urgent need of the adop- 
 tion of such a policy affords good ground for supposing that 
 its adoption was intended by the statute. 
 
 Our opinion, therefore, is, that no error was committed in 
 rejecting the evidence offered by the defence upon the trial of 
 this cause, and the motion for a new trial must, accordingly 
 be denied. 
 
 Note. — la State v. Leicham, 41 Wis., 565. The defendant entered into 
 a contract in writing between liimself and tlie firm of Van Brunt, Barber 
 & Co., whereby the firm appointed defendant its agent to sell its seeders, 
 on the terms and conditions, and under the restrictions therein specified. 
 The defendant accepting and agreeing to fulfill, and observe such terms. 
 
 A large number of seeders were shipped by Van Brunt, Barber & Co. to 
 the defendant, pursuant to the contract. The defendant, being pressed for 
 money, after some hesitation, sold to one Myers three of the seeders 
 received by him, for the purpose of getting money. Myers paid him $130 
 in cash. The defendant stipulated with Myers that he might purchase 
 back the seeders by paying the $130, and tried to stipulate (but without 
 success) that Myers should not remove the seeders. These transactions 
 were without the consent and knowledge of Van Brunt, Barber & Co., 
 and the defendant never accounted to them for the seeders sold to Myers. 
 
 The following instructions were refused: 
 
 "If you find, from the evidence, that at the time of making the bill of 
 sale the defendant intended and expected to be able to pay for the same 
 to the company when his general settlement should be made, and that he 
 acted in good faith and with no criminal intent, you should not find him 
 guilty. 
 
 " If you find that the defendant so construed the written contract that 
 he honestly supposed that he had the right to sell the machines and use 
 the proceeds thereof, and afterwards account to the company, and that in 
 4 
 
60 Phalkn's Criminal Cases. 
 
 the transaction in question he acted under that impression and in good 
 faith, you should not find him guilty. 
 
 " The evidence shows that the defendant was not such an agent of the 
 company as is intended by the statute under which the charge is made. 
 I therefore charge you that there is no evidence sufficient to convict the 
 defendant.'' 
 
 The following instructions were given : 
 
 " It is not enough to constitute the offence charged, that the defendant 
 was tlie agent of the company, and that he converted the property to his 
 own use; but the evidence must show that the property was fraudulently 
 converted to his own use, or converted with the intent to embezzle. 
 
 " If you entertain any reasonable doubt as to whether the defendant in- 
 tended to defraud the company, he is entitled to the benefit of the doubt. 
 
 " Under the written contract, which has been read in evidence, and 
 which it is the duty of the judge to construe, the defendant was, at the 
 time of the alleged embezzlement, the agent of Van Brunt, Barber & Co., 
 for the sale of machines mentioned in the contract, and for receiving and 
 passing over the consideration, whether in notes or money, to the said 
 company. 
 
 " If at the time, or before it, he received machines under the contract 
 and held them for sale, he was bound by his contract to sell them accord- 
 ing to the terms of such contract, for money or notes, which were the pro- 
 perty of said company. 
 
 "It is for you to find whether or not he had received and had on hand, 
 at the time of the alleged embezzlement, the machines in question. If 
 you find he had not, and should find that he sold any of them for the pur- 
 pose of paying an indebtedness of his own, or pledged or turned them out 
 as security for the purpose of raising money to pay his own indebtedness, 
 without the consent of his principals, it was an unauthorized and fraudu- 
 lent use of them, or an embezzlement and fraudulent conversion of such as 
 were so used to his own use. And if you find that he did so while the pro- 
 perty was in his possession, he is guilty as charged in the first count of 
 the information. 
 
 " It would not relieve him from guilt if he intended and expected, at 
 the time of doing so, to pay his principal for them with other money or 
 property, or to repurchase or redeem them of the party to whom they were 
 sold or mortgaged, or to repay the money to the party to whom they were 
 turned out or pledged as security." 
 
 Lyon J., said : " The foregoing facts are proved by the uncontroverted 
 evidence, and are absolute verities in the case. That they show a fraudu- 
 lent conversion by the defendant, to his own use, of the property de- 
 scribed in the information, cannot be doubted. And it is equally clear 
 that such property came to the possession of the defendant, and was un- 
 der his care, by virtue of his employment as agent of the owners for the 
 sale thereof. Moreover, there is no room in the case for the theory that 
 the defendant supposed he had the right, under his contract with the 
 owners.to convert the property to his own use, and he cannot urge, in jus- 
 
The United States v. Feank L. Taintor. 51 
 
 tiflcation of his conduct, that he construed the contract as giving him the 
 right, and hence converted the property in good faith. He knew that he 
 had the pioperty as agent for the owners, by virtue of his employment as 
 such, and he converted it to his own use without the consent of the own- 
 ers, and, as he well knew, in violation of his duty. 
 
 "There is nothing in the evidence that tends to show that he acted in- 
 nocently ; nothing which enables lis to say that perhaps he did not under- 
 stand the nature of his acts, and may not have intended to commit a 
 crime. We are compelled to believe that he converted the property to 
 his own use with full knowledge of the quality of the act, and the possi- 
 ble consequences. 
 
 " Neither does the fact (if it be a fact) that the defendant believed, when 
 he converted the seeders to his own use, that he would be able to pay the 
 owners for them when required to accouat for them, and intended to do 
 so, remove from the act of conversion its fraudulent and criminal char- 
 acter. The fraud and crime inhere in the act, and were not eliminated 
 therefrom by any mere mental process, however amiable or virtuous it 
 may have been. 
 
 " The instructions given and refused must, of course, be considered in 
 the light of the evidence and of the undisputed facts in the case; and, 
 this considered, we fail to find any error in that behalf of which the de- 
 fendant can justly complain. Indeed, we think the jury were, in some 
 particulars, instructed more favorably to him than the facts of the case 
 warranted.'' 
 
 Exceptions overruled. 
 
52 Phalbn's Geiminal Cases. 
 
 S. T. Gaddy v. The State. 
 
 (8 Tex., Ct. of App., 127.) 
 
 EMBEZZLEMENT. 
 
 Appeal from the District Court of Dallas. 
 
 The indictment alleges that the defendant, " being then and 
 there the bailee, and in possession of a certain gelding, said 
 gelding being then and there the corporal personal property 
 of one John H. Groble, and of the value of $30, which said 
 gelding the said Goble, prior thereto, to wit, on the 30th day 
 of March, A. D. 1879, did intrust to the said S. T. Gaddy, as 
 bailee, to be by him, the said Gaddy, taken from the residence 
 of said Goble, in Denton county, to the city of Dallas, and 
 back from the said city of Dallas to the residence of him, the 
 said Goble, he, the said Gaddy, did then and there, to wit, in 
 the county of Dallas and state of Texas, on the Ist day of 
 March, 1879, did fraudulently and feloniously convert to his 
 own use the said gelding, without the consent of the said 
 Goble, and with the fraudulent and felonious intent of him, 
 the said Gaddy, to deprive the owner of the said gelding and 
 appropriate the same to the use and benefit of him, the said 
 Gaddy; contrary," etc. 
 
S. T. Gaddy v. The State. 53 
 
 The jury found the appellant guilty, and assessed his pun- 
 ishment, at two years in the penitentiary. 
 
 White, P. J. The indictment in this ease purports to 
 charge appellant with embezzlement, the embezzlement con- 
 sisting in the fact that, as bailee, he had fraudulently converted 
 to his own use a borrowed horse. 
 
 " A loan for use, called in the civil law cdmrnddatum, is a 
 bailment to be used by the bailee temporarily, or for a certain 
 time, without reward, * * * and if a horse be 
 gratuitously lent for a journey, it is a case of Gommodatum?'' 
 Story on Bail, sect. 6; 2 Pars, on Con. (5th ed.), 108. 
 
 Our statute concerning the offence makes it applicable to 
 any bailee of property who fraudulently misapplies or con- 
 verts to his own use, without the consent of his employer, 
 any property which shall have come into his- possession or 
 shall be under his care by virtue of his employment. Gen. 
 Laws 15th Leg., p. 9, "An act to amend art. 771 of the 
 Penal Code; " Kev. Pen. Code, art. 786. 
 
 The indictment is defective in that it does not allege by 
 direct averments that at the time of the conversion the animal 
 was in the possession of the defendant by virtue of his agency 
 or of the bailment. " An indictment upon a statute must 
 state all such facts and circumstances as constitute the statute 
 offence, so as to bring the party indicted precisely within the 
 provisions of the statute. 7 Chitty's Or. Law (ed. of 1841), 
 281-283; Archb. Cr. Pr. & PI. (ed. of 1846), 50. If the 
 statute is confined to certain classes of persons, or to acts 
 done at some particular time or place, the indictment must 
 show that the party indicted, and the time and place where 
 the alleged criminal acts were perpetrated, were such as to 
 bring the supposed offence directly within the statute." The 
 People v. Allen, 5 Denio, 76. . " The facts and circumstances 
 which are necessary to constitute a complete offence must be 
 stated with distinctness and certainty." The People v. Poggi, 
 19 Cal., 600. 
 
 An indictment for this offence was held bad by our su- 
 preme court. The State v. Johnson, 21 Texas, 775, because 
 it did not distinctly state that the defendant had the posses^ 
 
54 Phalkn's Ceiminal Cases. 
 
 sion or care of the money by virtue of his clerkship, when he 
 converted it to his own use. Such allegation is required by 
 all the standard precedents. 1 Whart. on Free, of Indict. 
 (3d ed.), 466-469. See also The State v. Longworth, 41 Tex., 
 162; Gibbs v. The State, 41 Tex., 491; Baker v. The State, 6 
 Tex. Ct. App., 344. 
 
 Because the indictment is insufficient in law, the judgment 
 is reversed, and the cause remanded. 
 
 Reversed and remanded. 
 
 State v. Foster. 
 (37 Iowa, 404.) 
 
 Embbzzlbmekt. — The prosecutor gave the prisoner a watch, which the 
 prisoner, as agent for the prosecutor, was to trade for a wagon when he 
 could find a suitable opportunity, and for which service the prosecutor 
 was to pay the prisoner $5.00, shows the relation of agency existing be- 
 tween the accused and prosecutor, sufficient to sustain a prosecution for 
 embezzlement, in converting the watch to his own use. 
 
 The slate gave evidence that the watch was worth $95.00, which was 
 not contradicted by the prisoner. After trial it was shown by affidavit 
 that the watch was of base metal, and only of the value of $10 or $15. 
 No fault or negligence for not offering this evidence on the trial being at- 
 tributed to defendant, a new trial was granted. 
 
 Beck, 0. J. 1. The second count of the indictment upon 
 which the defendant was convicted charged that he, being 
 
State v. Fostee. 55 
 
 " the servant and agent of one P. B. Furlong, and being over 
 the age of sixteen years, did ... by virtue of his said 
 employment, have, receive, and take into his possession and 
 under his control, one watch, of the value of $95, the pro- 
 perty . . . of P. B. Furlong, his employer, .... 
 and the said watch .... without the consent of his 
 said employer, did feloniously embezzle and fraudulently con- 
 vert to his own use." The statute upon which this indict- 
 ment was found, is as follows: 
 
 " If any officer, agent, clerk or servant, or any incorporated 
 company; or, if any clerk, .agent or servant of a copartner- 
 ship, or if any person over the age of sixteen years, embez- 
 zle and fraudulently convert to his own use, or take and secret, 
 with intent to convert to his own use, without the consent of 
 his employer or master, any money or property of another, 
 which has come to his possession, or is under his care by vir- 
 tue of such employment, he is guilty of larceny, and shall be 
 punished accordingly." Eev. Stat, § 4244. There was evi- 
 dence tending to prove that, by an agreement between Fur- 
 long and the defendant, the latter undertook, in consideration 
 of $5, to be paid him by the former, to trade a watch, the 
 property of the former, for a wagon. Defendant was to find 
 some one owning a wagon, who would trade it for a watch, 
 and make the exchange for Furlong. Under this agreement 
 the watch was delivered to the defendant, who failed to make 
 the trade, and converted the watch to his own use. The court 
 instructed the jury upon this evidence as follows: 
 
 " 7. If you find that Furlong and the accused made an 
 agreement whereby the accused contracted to receive the 
 watch and trade it for a two-horse wagon for Furlong, for 
 which he was to receive a compensation of $5, this is suffi- 
 cient to sustain the averments that the defendant was in the 
 employment of said Furlong, and that he received the watch 
 by virtue of this employment." 
 
 It is insisted that this instruction, and the view of the case 
 upon which it is based, are erroneous, inasmuch as no such 
 relation, or employment, is shown to have existed between the 
 accused and Furlong, as is a necessary ingredient of the crime 
 of embezzlement, under the statutes. 
 
56 Phalen's Ceiminal Cases. 
 
 It is insisted, in a very able argument by defendant's coun- 
 sel, that the transaction between the parties, disclosed by the 
 evidence and contemplated by the instructions of the court, 
 constitutes an ordinary bailment, and could not, therefore, be 
 the foundation of the crime of embezzlement. 
 
 It may be suggested, before proceeding to the discussion of 
 the question presented, that the authorities cited, and others 
 we have been able to consult, throw little light upon the sub- 
 ject, from the fact that they interpret, and apply to, statutes 
 not entirely similar to the law .of thisstate under which the in- 
 dictment was found. Upon the construction of this enact- 
 ment depends the solution of the question before us. Its 
 language necessary to be interpretated, correcting the obvious 
 typographical error found therein, is this: " If any person 
 over the age of sixteen years embezzle and fraudulently con- 
 vert to his own use, .... without the consent of his 
 employer or master, any money or property of another which 
 has come to his possession, or is under his care by virtue of 
 his employment, he is guilty," etc. 
 
 The words indicating the relation that must exist between 
 the accused and another, which is a necessary ingredient of 
 the offence, are " employer," " master," "employment." We 
 will, without notice of the word " masfer," consider the term 
 "employer" and "employment." They are not of the tech- 
 nical language of the law, or of any science, or pur- 
 suit, and must therefore be construed according to the context 
 and the approved usage of the language. Rev. Stat., § 29, 
 p. 2. 
 
 The words are defined as follows: Employment — " the act 
 of employing or using. 2, Occupation, business. 3, Agency 
 or service for another, or for the public. Employer — one who 
 employs; one who engages or keeps in service." 
 
 The verb " employ " is defined as follows, when used with 
 a human being either as its subject or object: To engage in 
 one's service; to use as an agent or substitute in transacting 
 business; to commission and intrust with the management of 
 one's affairs." — Webster. 
 
 It will be seen from the definition of these words that the 
 statute contemplates the relation of agent, a contract for ser- 
 
State v. Foster. 57 
 
 vices,, whereby thc' accused is bound to do or perform some- 
 thing in connection with the projjerty embezzled, and that by 
 virtue of such relation he acquired possession thereof. It by 
 no means appears that the idea of bailment, or bailee, is ex- 
 cluded from these, definitions, but without following the 
 thought or relying upon it, we will inquire whether the evi- 
 dence establishes a relation of agency or service existing be- 
 tween the accused and Furlong, and whether such relation is 
 contemplated by the instructions above quoted. We think it 
 is in each. The watch was received under an agreement that 
 the accused was to act for Furlong in making a contract of 
 sale of the property, i. e., exchanging the watch for a wagon. 
 Can it be doubted that any proper contract of sale within the 
 scope of the accused's authority would have boniid Furlong? 
 Certainly, he would have been bound thereby ; and one of the 
 ingredients of the transaction creating it a binding contract 
 upon him would have been the relation of agency existing be- 
 tween him and the accused. We conclude that the idea of 
 agency is clearly expressed, both by the language of the in- 
 dictment and instructions, and the relation is established by 
 the evidence, or rather that there was evidence tending to es- 
 tablish it rendering the instruction relevant and proper, upon 
 which the jnry may well have found its existence. 
 
 We, therefore, find no error upon this point in the rulings 
 of the court upon the instructions and the motion assailing 
 the indictment, because the facts alleged do not constitute an 
 offence under the statute. See upon this point 2 Whart, Am. 
 Crim. Law, § 1936; The People v. Dalton, 15 Wend., 581; 3 
 Arch. Crim. Prac. and Pi., 450, 444 and notes. 
 
 A motion for a new trial because of newly discovered evi- 
 dence was overruled. We think it should have been sus- 
 tained. 
 
 Evidence as to the character of the , watch and its value, 
 showing it to be worth $95, was given by the state. No evi- 
 dence upon this point was introduced by the accused. His 
 own afiidavit and that of his counsel, we think, show the fact 
 that they were not in possession, at the time of the trial, of 
 the names of any witnesses by whom the evidence on the part 
 of the state, as to the value and character of the property. 
 
58 Phalen's Criminal Cases. 
 
 could have been contradicted. It is sliown by the affidavit of 
 these witnesses that the watch is of base metal and only of 
 the value of $10 or $15. It does not appear that any fault or 
 negligence can be properly attributed to defendant or his 
 counsel in not introducing the evidence of these, or of other 
 witnesses, upon the point at the trial; in fact, the showing 
 made is such that we must conclude that they were unable, 
 from ignorance of the names of the witnesses, to do so. 
 
 The attorney general suggests that the evidence claimed to 
 be newly discovered is but cumulative, on the ground that one 
 of the witnesses of the state does not give as high a descrip- 
 tion of the character of the watch as the prosecuting witness. 
 But nothing was said by him as to its value, and defendant's 
 counsel, in the exercise of proper prudence, may well have 
 feared to venture upon an attempt to establish a point in the 
 defence by one of the state's witnesses. 
 
 The importance of the evidence cannot be questioned, for it 
 is upon a fact which, if established, would reduce the offence 
 from a felony to a misdemeanor. 
 
 For the error of the district court in overruling the motion 
 for a new trial, on the ground of newly discovered evidence, 
 the judgment is reversed. 
 
 Judgment reversed. 
 
The People v. Dalton. 59 
 
 The People v. Daltoh. 
 
 (15"Wend.,581.) 
 
 embezzlement, 
 
 Mrs. Mann kept an inn at Geneva; the principal manage- 
 ment of the house was in one Franklin. A traveler who 
 stopped at the inn gave Franklin a letter containing a ten- 
 dollar bill, informing him of its contents and requesting him 
 to send it to the post-office. Franklin delivered the letter to 
 Dalton, a har-keeper in the house, to carry to the postoffice, 
 who took it, but did not deliver it at the post-office. It wa& 
 customary in the house for the bar keeper to take letters to 
 and bring them from the post-office. Mrs. Mann had no 
 knowledge of the custom, nor of the particular transaction. 
 The court was requested to instruct the jury to acquit the pris- 
 oner on the ground that the oflFence as proved did not amount 
 to the crime of embezzlement, which request was refused, to 
 which refusal the counsel for the prisoner excepted. The jury 
 returned a verdict of guilty. After verdict, the prisoner's 
 counsel moved in arrest o^ judgment, raising four distinct 
 objections, all of which related to the evidence, and were 
 founded on its insufficiency to establisli the offence charged. 
 The motion in arrest of judgment was denied, and the judges 
 thereupon sealed a bill of exception, which was brought into 
 this court by certiorari. 
 
■60 Phalen's Criminal Casks. 
 
 The case was submitted on written arguments. 
 
 N. Parlcerfor the prisoner. 
 
 W. Hubbell (district;[:attorney of Ontario) for the people. 
 
 By the court, Cowen, J. The exception taken to the omis- 
 sion of tiie court to charge the jury that the offence as proved 
 did not amount to the crime of embezzlement, seeks to draw 
 the whole case in question, and is perhaps too broad to raise 
 in proper form any point presented by the argument; but if 
 it were in due form, the objection cannot avail. The statute 
 is, that if any servant of any private person, etc., shall embez- 
 zle or convert to his own use, without the assent of his master 
 or employer, any money, etc., which shall have come into his 
 possession, or under his care, by virtue of his employment, he 
 shall be punished in tlie same manner as a larcener of the 
 like sum. 2 R. S. 678, § 59. It is contended for the prisoner 
 that, to show an embezzlement or conversion within the stat- 
 ute, there must have been proof of breaking or opening the 
 letter, or of flight, etc. It is perfectly clear that neitlier is 
 necessary. A fraudulent conversion in any way is enough; 
 and there is no prescribed set of circumstances by which the 
 fraud is to be made out. There is nothing in the objection that 
 this conversion could be said to have been " without the assent 
 ot his master," on the ground that Mrs. Mann had no actual 
 personal knowledge that the prisoner was ever employed in 
 carrying letters; it is enough that she, in trutli, gave no as- 
 sent. That she gave any is not pretended; and it is obvious 
 from theevidence that she knew nothing of the matter. Tlie 
 statute is "without the assent," etc., not witJiout the dissent. 
 The point presented seems to suppose some act of the master 
 or mistress's mind necessary, or at least possible, in respect 
 to the crime. It is also objected that the letter did not come 
 to the prisoner's possession by virtue of his employmentj 
 within the meaning of the statute. The contrary is clear. 
 People V. Sherman, 10 Wend., 278. It is said, under this 
 point, that Mrs. Mann had no knowledge of his ever being en- 
 trusted to carry letters. Tlie answer is that Franklin, her 
 
The People v. Dalton. 61 
 
 general manager and agent, had so employed him. This wa& 
 in effect her act; and his knowledge was constructively her 
 knowledge. The point made, that a felonious or criminal in- 
 tent must be proved, is assented to by the district attorney^ 
 who properly insists that proof of a fraudulent conversion is 
 establisiiing the felonious or criminal intent within the ob- 
 jections raised. Such conversion was abundantly shown. In 
 short, the offence, as proved, is exactly within the statute. It 
 is intended to provide for a fraudulent conversion of money 
 or goods by a servant, when they are delivered to him as such,, 
 either by his master or mistress, or in their behalf, or by a 
 stranger. That was but a breacli of trust at common law, be- 
 cause the money or goods came to his hands by delivery. The 
 statute intended to convert such a breach of trust into a 
 crime. 
 
 As to the motion in arrest and the judgment of the ses- 
 sions thereupon, there are two answers: 1. The matter i& 
 not properly here — a bill of exceptions can be taken only at 
 the trial ; and 2. Had the objections been properly raised and 
 properly brought here, there is nothing in them. As to the 
 first ground: a writ of error at common law could not reach 
 any objection arising dehors the record, unless perhaps in the 
 single case of diminution, or error in fact. For the right now 
 so commonly exercised, of bring up the merits from the trial 
 by writ of error we are indebted to the state, 1 E. L. of 1813,. 
 p. 326, § 6. It was brought down from the previous revisions, 
 and is almost an exact transcript from the old English statute 
 of 13 Edw. 1, of Westminster 2, ch. 31, Sec. 1, Statutes at 
 large, 190. Under this statute the exception was confined in 
 practice not only to the trial, but almost exclusively to some 
 point of law specifically raised there upon the evidence, or the 
 charge of the judge. The present revised statutes seem, through 
 inadvertence or otherwise, to have omitted this old statute. 
 They begin by assuming that there is such a statute, or some- 
 thing equivalent in the common law, and make full provision 
 in respect to the practice of taking and disposing of the bills, 
 2 K. S., 422, §73 to 80, inclusive. The introductory language,, 
 however, fully recognizes the settled notion so long enter- 
 tained while the old statute was in existence, that the tak- 
 
€2 Phalen's Criminal Cases. 
 
 ing of the bill was confined to the trial. That language 
 will be found in section 73, and is thus: " In all cases where 
 exceptions are allowed by law, on the trial of any cause, either 
 party may make such exceptions at the time of the decision 
 complained of, etc. Exceptions in criminal cases are co-ex- 
 tensive as to subject matter, and no more, with those in civil 
 ■cases, but are confined to the defendant, 2 K. S., 736. They 
 were given in such cases, for the first time, by the present re- 
 vised statutes, which provide that, on the trial of any indict- 
 ment, exceptions to the decision of any court may be made by 
 the defendant, in the same cases and manner provided by law 
 in civil cases, etc. The statute then proceeds with some regu- 
 . lations adapting the bill to the peculiar forms of practice in 
 <3rirainal cases, 2 K. S., 736, § 21 to 27, inclusive. In no sense, 
 then, with or without the old statutes, can we notice as a mat- 
 ter for a bill of exceptions, a motion made as this was said to 
 be, in arrest of judgment, but which was, in truth, a motion 
 for a new trial, in an inferior court, introduced in the 
 name of a motion in arrest. That court had no power to 
 entertain a motion for a new trial. An inferior court of record 
 may arrest the judgment, or under a judgment non oistante 
 •oerdicto\ but they cannot, without a special statute power, 
 grant a new trial on the merits. The former is always founded 
 on the record — the latter on the proceedings at a trial regu- 
 larly brought on; of course, the restriction can not be voided 
 by misnaming the latter a motion in arrest. Such matter 
 ought not to be put into a bill of exceptions. But had the 
 objections been properly raised and properly brought here on 
 error, we should be obliged to disregard them, because they 
 were unfounded. 
 
 In any and every view, the court below were right in 
 overruling what was miscalled the motion in arrest. The 
 true course would have been to have disregarded it for want 
 of jurisdiction. I ought not to let this occasion pass without 
 noticing that the ofiice of the bill of exceptions has been here 
 entirely mistaken in several particulars. First, the testimony 
 of the people is detailed with great particularity, as if we were 
 to judge of its weight and eflect in establishing the leading 
 facts on which all the questions of law were supposed to turn. 
 
The People v. Dalton. 63 
 
 There was no dispute about several of the main facts. "When 
 this is so, they should be stated succinctly, as the effect of the 
 proof. Denison v. Seymour, 5 "Wendell, 103. So, if there be 
 a plain defect in the proof, which defect is the foundation of 
 the point raised, that can be mentioned. If the point is to 
 be made that the proof is legally sufficient to establish a fact 
 .assumed by the court, and put by them, as proved, to the jury, 
 more details are warrantable; and so if it be a question whether 
 there be proof sufficient to carry the cause to the jury; but 
 unless the facts relate to some legal exception properly taken 
 at the trial, even the statement of them in the charge to the 
 jury, and the commentaries upon the evidence made by the 
 judge, may — nay, should be stricken out on settling the bill. 
 Ex parte Crane, 5 Peters, 190, 197 to 200. 
 
 Had the points been distinctly raised at the trial as they 
 are now presented in argument, the bill might have been 
 somewhat abridged in its history of the people's case; though 
 I admit not a great deal, if we allow full effect to the excep- 
 tions as taken, and hold the points to be all properly involved 
 in the general motion made at the trial for instructions to ac- 
 quit A general objection to the latter kind, however, is 
 hardly ever available in a bill. An objection usually arises 
 when the main facts are made out in proof, but there is some 
 particular defect relied upon by counsel. This they are re- 
 quired to point out, because it may, on being mentioned, be 
 at once obviated by further proof. In this case, had the de- 
 fects now mentioned, that the prisoner's flight vtas not proved, 
 been objected, and thought material, it might, for aught we 
 know, have been shown. So the want of personal knowledge 
 in Mrs. Mann, that the prisoner was in the habit of carrying 
 letters, and that he took this particular letter. So that a crimi- 
 nal intent was not shown, etc. It is extremely unsafe to al- 
 low this broad objection, founded on the whole case, as made 
 at the trial, to be available here for the purpose of any speci- 
 fications that the party may choose to make for the first time. 
 Some material facts which was, in truth, proved at the trial, 
 is many times omitted in the case, for the very reason that it 
 appeared, and no objection was made. The true and the only 
 course, in correct practice, is in the manner pointed out, to 
 
64: Phalen's Criminal Cases. 
 
 draw the mind of the court and opposite counsel to that part 
 of the case wherein the objection lies, and then let the bill 
 furnish such evidence, or such want of evidence, as may be 
 material to the objection; exhibiting the whole as briefly as 
 may be warrantable for a full understanding of the legal point. 
 Denison v. Seymour, 5 Wendell, 103. The whole case, at least 
 the whole evidence, can be rarely wanted in a bill of excep- 
 tions properly taken. Whitside v. Jackson, 1 "Wendell, 418. 
 The presenting of the points is, of course, the particular of- 
 iice of the counsel; and if these be broad and indefinite, cov- 
 ering tiie whole case, it is seldom that the court below feels 
 willing to disregard them, though obviously ill taken. They,. 
 therefore, go up with the writ of error, in their general shape, 
 and a statement of facts fails in what might otherwise have 
 been most material, for the very reason that it seeks too much. 
 I must not be considered as allowing that there is, properly, 
 an available exception in the bill now before us, though I have 
 considered the specifications as they have been raised in argu- 
 ment. Even if there had been good ground of exception 
 shown to us, I should have feared its failure, upon the man- 
 ner in which the questions are presented. Aside from these, 
 no other point of law, nor anything resembling it, was raised 
 at the trial. The charge of the court was quite favorable to the 
 prisoner; and, of course, no exception to that was thought of:, 
 yet all the testimony on the side of the prisoner, directed ex- 
 clusively to his character, and the credibility of one of the 
 people's witnesses is detailed. It was, obviously, useless for 
 all the purposes of the bill, and should have been excluded in 
 the settlement of it. Then comes what are called the proceed- 
 ings on the motion in arrest, the utter irrelevancy of which I 
 have before considered. 
 
 I am aware of the great difiiculty of courts below in trim- 
 ming the case down to the neat point which should always, if 
 possible, be presented. There is a frequent anxiety on the 
 part of counsel to place every thing in a bill which is at all 
 favorable to their clients in any view, and between the fear of 
 making the case come short of what it should be, and the great 
 respect so properly entertained for the zeal of counsel, and the 
 real indulgence due to them in the exercise of their arduous- 
 
The People v. Dalton. 65 
 
 and useful oflBce, there is every tendency to relaxation. In 
 settling many of these bills myself, with a full understanding, 
 as I thought, of the general rules upon which it should be 
 done, I have yet constantly felt the diflBculty of their applica- 
 tion, from the causes mentioned, and others inherent in this 
 branch of judicial business. I am, therefore, far from speak- 
 ing in a spirit of censure, when I notice the irrelevant matter 
 which has found its way into this bill. The whole occupies 
 no very great space, and is least of all attributable to a desire 
 in any one concerned to swell folios for the sake of fees. But 
 it can be seen how easily the practice may be abused to a very 
 inconvenient, not to say an oppressive extent, if the courts^ 
 who are to settle these bills, prefer leaving matter to stand, 
 where there is a mere doubt of its relevancy, when it is their 
 duty to repress every attempt at obvious redundency. In the 
 court of review the line of duty is plain. Exceptions not prop- 
 erly presented cannot be regarded, even in criminal cases, 2 
 Chit. Gen. Pr., 593, and cases there cited in note (e); and 
 useless prolixity should be discouraged in every department 
 of legal practice. 
 
 The sessions are advised to sentence the prisoner, if they 
 have not already done so. 
 
 Note. — The court seemed to have a better knowledge of the theory of 
 the law than of the law itself. The proposition that the statute " intended 
 to convert a breach of trust into a crime," is quite correct ; but the propo- 
 sition that the charge against Dalton was but a " breach of trust at com- 
 mon law" is very erroneous. Dalton was intrusted with the custody of the 
 goods and not with the possession to keep ; therefore the conversion was 
 larceny at common law. 
 See R. V. Lavander, Post. 
 
 R. V. Paradioe, Post. 
 
 R. V. Bazely, Ante, 14. 
 
 Com. V. Berry, Post. 
 
 Warmoth v. Com., Post. 
 
66 Phalen's Criminal Oases. 
 
 Cabtee vs. State. 
 
 (53 Ga., 326.) 
 
 Embezzlbmbnt. — An iadictment for larceny by bailee must set forth 
 the character of the bailment. 
 
 The defendant was intrusted by one John Mongin with four 
 hundred and eighty melons of the value of ten cents each, for 
 the purpose of applying the same to the use of the said 
 Mongin. 
 
 After having been so intrusted he failed to apply the melons 
 as directed, but without the owner's consent appropriated the 
 same to his own use. 
 
 The jury found defendant guilty. 
 
 The defendant moved for a new trial, because the verdict 
 was contrary to the law and the evidence. The motion was 
 overruled and defendant excepted. 
 
 Trippb, J. The statute makes the fraudulent conversion by 
 a bailee of many kinds of property a criminal act, to wit: 
 money, notes, bonds, cotton, corn, horses, mules, etc. If the 
 indictment charged that the defendant was intrusted with 
 money, or a horse, which he fraudulently converted, it could 
 not be sustained by proof that a bond, or cotton, had been so 
 intrusted and converted. So the same statute, code, sec. 4424, 
 
Oaeter v. The State. 67 
 
 prescribes that when such things or articles have been in- 
 trusted to a person for divers different purposes, to be used by 
 him in various specified ways therein defined, and the bailee 
 shall fraudulently convert them to his own use, or otherwise 
 dispose of them, he shall, on conviction, be punished. 
 
 It is as much necessary that the character of the bailment, 
 the purpose for which the thing is intrusted, shall be set forth 
 in the indictment, as it is properly to describe the thing or 
 article itself. In both cases the rule is found on the right of 
 a party to have notice of what it is proposed to convict him. 
 We do not suppose that any indictment under this statute ever 
 failed to define both, to wit: the article deposited, and the na- 
 ture or object of the bailment.. Each of them is set forth in 
 the one under consideration. The bailment therein defined is, 
 that the melons were intrusted by the owner with the defend- 
 ant " for the purpose of applying the same to the sole use 
 and benefit of the said owner." The proof was, that they were 
 delivered to the defendant for the purpose of selling the same, 
 and after the defendant was satisfied out of the proceeds of 
 sale for his services, the surplus was to be paid to the owner. 
 When the bailee is charged with a trust to be executed in a 
 special mode, distinctly defined when it is created, and is to 
 be brought to account for an alleged breach thereof, either 
 civil or criminally, he should be notified in the suit or crimi- 
 nal accusation, of what trust it is claimed he has been guilty 
 of violating. We think justice and reason demand this, and 
 that it is but preserving a vital rule that obtains in all plead- 
 ings, civil or criminal. 
 
 Judgment reversed. 
 
68 Phalen's Ceiminal Cases. ' 
 
 Eeside v. The State. 
 (10 Texas, Ct. App., 675.) 
 
 Bmbbzzlembkt. — The value of the property embezzled must be alleged 
 in the indictment. 
 
 "Eight dollars in money consisting of one flve-doUar bill, one two- 
 dollar bill, and one one-dollar bill circulating medium current as money" 
 is not sufficient. 
 
 WiNKLEK, J. The information charges the defendant with 
 embezzlement, as follows: "That on, to wit: the 10th day of 
 March, A. D. 1879, in the county of Parker and state of 
 Texas, Jack Beside, who was then and there the bailee of eight 
 dollars in money^consisting of one five-dollar bill, one two- 
 dollar bill and one one-dollar bill, all of which was then and 
 there a circulating medium current as money, a moi'e particu- 
 lar description of which cannot be given, and all then and 
 there the property of Alonzo Hunt, did then and there em- 
 bezzle, fraudulently misapply, and convert to his own use said 
 money, without the consent of said Alonzo Hunt, who had 
 then and there entrusted said money to said Jack Reside to be 
 by him conveyed to Forth Worth, Texas, for him the said 
 Alonzo Hunt, and which said money had then and there come 
 to the possession of said Eeside, and was then and there 
 
Eeside v. The State. 69 
 
 under his care, by virtue of said bailment as aforesaid: 
 against," etc. 
 
 "Without attempting to criticise the information in other 
 respects, we are of the opinion it is defective and insufficient 
 to support a judgment of conviction for the crime of embez- 
 zlement, in that there is no direct substantive averment of the 
 value of the money charged to have been embezzled. It is 
 true the information charges that the defendant as bailee was 
 entrusted with eight dollars in money, but the pleader goes 
 on to particularize that the money consisted of a five, a two, 
 and a one-dollar bill, but does not state that it is in gold, silver 
 or current paper of the United States or of any other govern- 
 ment or country; and whilst it states the denomination of 
 the several bills, there is no attempt made to state the value 
 of said bills or either of them, or that they had any aggregate 
 or separate value whatever. It is not averred even that the 
 bills were genuine. 
 
 When a proper charge of embezzlement is made out, the 
 punishment is the same as for theft. Original Penal Code, 
 arts. 771-2. If the defendant in the case under considera- 
 tion is liable at all, it is believed that his liability must be 
 ascertained under art. 772. It is evidently intended to charge 
 him with having been entrusted with the money in the capa- 
 city of a carrier. Now, if any carrier to whom any money, 
 goods, or other property shall be delivered to be carried by 
 him, or if any other person who shall be entrusted with such 
 property, shall embezzle or fraudulently convert to his own use 
 any such money, goods or property, either in mass as the 
 same were delivered, or otherwise, he shall be deemed guilty 
 of theft, not embezzlement, and shall be punished as pre- 
 scribed for that offence — theft, according to the value of the 
 money, goods or other property so embezzled or converted. 
 Original penal Code, art. 772; Kev. Penal Code, art. 788. 
 Should not the information under this article have been so 
 framed as to charge this defendant as carrier rather than as 
 bailee? But be this as it may, the punishment for embezzle- 
 ment being the same as for theft, the indictment or informa- 
 tion should, as in theft, aver the value of the property or 
 thing embezzled, in order to regulate the punishment. In 
 
70 Phalen's Ceiminal Cases. 
 
 theft, except of particular kinds of property, as a horse, 
 where^fthe law fixes a definite punishment without reference 
 to the value, the value must be averred and proved. Theft of 
 property of twenty dollars and over in value is punished by 
 one rule, whilst theft of property in value less than twenty 
 dollars is punished by a different rule altogether. 
 
 The information being defective and insufficient, the judg- 
 ment will be reversed and the prosecution dismissed. 
 
 Keversed and dismissed. 
 
 People v. Husband. 
 (36 Mich., 306.) 
 
 Embezzlement. — A claim of right to pledge the property of another, If 
 made In good faith, negatives the fraudulent intent to deprive the owner 
 thereof. 
 
 What Is a sufficient delivery of goods to grant a prosecution for embez- 
 zlement. 
 
 Makston, J. An information was filed against the respond- 
 ent, charging him with having fraudulently and feloniously 
 secured and converted to his own use certain trunks and other 
 property of the value of fifty-five dollars, without the consent 
 of the owner thereof, and that he thereby, in manner and 
 form aforesaid, feloniously did steal and carry away the same 
 contrary to the statute, etc. 
 
 The statute, under which the information was filed, reads as 
 follows : 
 
 " If any person to whom any money, goods, or other prop- 
 erty, which may be delivered, shall embezzle or fraudulently 
 
People v. Husband. 71 
 
 convert to his own use, or shall secrete, with intent to embez- 
 zle or fraudulently use such goods, money, or other property; 
 or any part thereof, he shall be deemed, by so doing, to have 
 committed the crime of larceny." Aot No. 168^ Laws 1875, 
 vol. 1, p. 195. 
 
 The evidence introduced tended to show tliat the respondent 
 was a hotel-keej^er, and that as such he had received from the 
 complaining witness, who was stopping at his house, three 
 checks, being the checks to her trunks then at the depot, with 
 the request that he bring the trunks to the house; that com- 
 plainant remained at his house some five weeks; that although 
 she ascertained that her trunks had been removed from the 
 depot, the same had not been brought to the respondent's 
 house; that respondent, in the meantime, had been to Detroit, 
 and on his return she spoke to him about her trunks, when 
 he informed her they had been sent to Detroit, but he would 
 have them back in a day or two. 
 
 Evidence was also given that on April 24:th, 1876, some 
 eight days after respondent had received the checks, he was 
 in Detroit, and that he then handed the checks to the pro- 
 prietor of a hotel in that city, who handed them to one of the 
 hotel porters; that respondent then asked the porter to bring 
 the baggage which the check represented to the house, which 
 was done; that respondent left the hotel before the baggage 
 was brought in, and did not return; and that the baggage 
 thus brought into the hotel in Detroit was the trunks and 
 property of the complainant. 
 
 The property was afterwards found in the Detroit hotel 
 where it was detained for respondent, for respondent's hotel 
 bill. Other evidence was introduced, but the above is suffi- 
 cient in order to enable us to understand the questions raised. 
 The respondent was convicted, and the case came here upon 
 exceptions, before sentenced. It is insisted that the property 
 was in the hands of the respondent as bailee; that he had a 
 special property in the goods, and that under such circum- 
 stances they were not the subject of larceny; also that the 
 property was never delivered to the respondent; that the 
 checks only were delivered, and that the property remained in 
 the possession of the railroad company. 
 
72 Phalen's Ceiminal Cases. 
 
 It is true that the complaining witness did not deliver 
 to the respondent the actual manual possession of the 
 property, but she did deliver to him that which gave him the 
 right to the control and possession of the property, and that, 
 acting upon the authority which she gave him, he assumed 
 the right to it, and did exercise acts of possession and con- 
 trol over it. 
 
 The evidence tends to show that the disposition of the 
 property, as made by him, was not only without authority in 
 fact from the owner thereof, but that it was in fact in direct 
 violation of the authority she had given him, and was a con- 
 version of the same to his own use. The fact that she was a 
 guest at his hotel, and that he would have a lien upon this 
 property for the amount she might be owing liim, would not 
 give him authority, under the facts appearing in this case, to 
 dispose of the property as his own. His good faith and be- 
 lief that he had such right would show a want of any crimi- 
 nal or wrong intent, and the jury were so instructed. An 
 examination of the charge shows the case in hand to have 
 been presented to the jury in such a form that the respondent 
 had no legal cause of complaint. They were instructed, in 
 case they found that the respondent had absolute control over 
 the property, by means of the checks, that such would be a 
 sufficient delivery of the possession to him. They were also 
 instructed, that in order to find a conversion, they must find 
 an actual conversion by the respondent to his own use, and 
 also an intent existing at the time of such actual conversion, 
 to thereby deprive the owner of her property therein, and to 
 use it himself — that in case they found an actual possession 
 and actual conversion in Detroit, and that respondent there 
 assumed absolute control over the property, as his own goods, 
 they must also find in order to convict, the intent thereby to 
 deprive the owner of her property therein, absolutely and 
 entirely — that if he had any intent other than this the ofience 
 would not be made out. The jury were further instructed, 
 that in case they found he claimed to have a lien upon the 
 goods, and thought he had a right to pledge the goods, by 
 virtue of having such lien, then such claim of right, if made 
 
Moses 0. "Wright v. The People. 73 
 
 in good faith, would negative an intent to deprive the owner 
 of her goods. 
 
 As we discover no error, it must be so certified to the cir- 
 cuit court, and that judgment be entered on the verdict. 
 
 The other judges concurred. 
 
 MosES C. Wright v. The People. 
 
 (61 111., 382.) 
 
 Embezzlement. — The act of March 4, 1869, which provides that any 
 ■warehouseman, storage, forwarding or commission merchant who, other, 
 ■wise than as Instructed by the consignor of the goods, on demand 
 of the consignor, falls to deliver over the proceeds or profits of 
 -such goods, after deducting the usual per cent., on sale as com- 
 missions, shall be guilty of a misdemeanor, being a penal statute, must 
 receive a strict construction, and an actual demand is an Indispensable 
 pre-requislte to a conviction. 
 
 Writ of error to the Criminal Court of Cook County. 
 
 This was a prosecution against the defendant, on an indict- 
 ment found under the Act of March 4, 1869, for the protec- 
 1;ion of consignors, etc. 
 
 The indictment was as follows: 
 
 State of Illinois, County of Cook, ss., of the December 
 Term of the Criminal Court of Cook County, in said county 
 .and state, in the year of our Lord one thousand eight hundred 
 and seventy. 
 
 The grand jurors chosen, selected, and sworn, in and for the 
 <;ounty of Cook, in the State of Illinois, in the name and by 
 ithe authority of the People of the State of Illinois, upon their 
 
74 Phalen's Ceiminal Cases. 
 
 oaths present that Moses C. Wright, late of said county, on 
 the first day of November, in the year of our Lord one thou- 
 sand eight hundred and seventy, in the county and state afore- 
 said, being then and there a commission merchant, did unlaw- 
 fully convert to his own use the sum of sixty-one dollars, the 
 property of Abijah Birdsey, the same being then and there 
 the proceeds arising from the sale of a certain quantity of 
 peaches before then consigned by said Birdsey to said Wright, 
 otherwise than as instructed by said Birdsey, the consignor 
 thereof, and that he, the said Moses C. Wright, then and there 
 unlawfully failed to deliver over the proceeds aforesaid, after 
 deducting the usual per cent, on the sale of said peaches as 
 commission, on demand then and there made tlierefor by the 
 said Abijah Birdsey, contrary to the statutes and against the 
 peace and dignity of the same people of the state of Illinois. 
 At the February Term, 1871, of said court, the defendant 
 was convicted, and adjudged to pay a fine of $100. 
 
 Mr. Sidney Thomas for the plaintiff in error. 
 
 Mr.Cliarles H. Reed, (State's Attorney), for the people. 
 
 Per Curiam. The statute of 1869, under which the indict- 
 ment in this case was found, declares that " If any warehouse- 
 man, storage, forwarding or commission merchant, or his or 
 their agents, clerks, or employes, shall convert to their own 
 use the proceeds or profits arising from the sale of any fruits, 
 grain, flour, beef, pork, or any other goods, wares or merchan- 
 dise, otherwise than as instructed by the consignor of said 
 goods, and shall, on the demand of the consignor, fail to de- 
 liver over the proceeds or profits of said goods, after deducting 
 the usual per cent, on sales as commissions, shall be deemed 
 guilty of a misdemeanor," etc. 
 
 This statute, being penal in its nature, must receive a strict 
 instruction. An actual demand, to be made by the consignor 
 upon the commission mei'chant, is an indispensable pre-requi- 
 site to a conviction. 
 
 The complaining witness testified that, when he went into the 
 place of the accused, in Chicago, the latter said: "I know 
 
Moses C. Wkight v. The People. 75' 
 
 what you have come for, but it is impossible for me to pay 
 you anything now." The witness stated that the accused knew 
 well enough what he had come for, and this was all the de- 
 mand he claimed to have been made. 
 
 In a civil cause, where a demand was necessary, such evi- 
 dence might be sufficient for a jury to find a waiver. 
 
 But the statute under consideration requires both a wrong- 
 ful conversion of the proceeds and a failure to deliver them 
 over after a demand made by the consignor to constitute the 
 offence. 
 
 The demand should be made in such a manner as to fairly 
 apprise the merchant that he would be subject to the penal- 
 ties of the statute if he failed to comply, else he might, by 
 the very course of dealing assented to by the consignor, be 
 entrapped into the consequences of a criminal offence una- 
 wares, and without any wrong intention. Such a result would 
 be repugnant to the spirit of our criminal code, and, as we 
 believed, to the intention of the statute in question. 
 
 The evidence was not sufficient to sustain the verdict, and 
 the court should have granted a new trial. 
 
 The judgment of the court below must be reversed and the 
 cause remanded. 
 
 Judgment reversed. 
 
76 Phalen's Criminal Oases. 
 
 Keibs v. People. 
 
 (83 111., 425.) 
 
 Bmbezzlbmbnt. — If the defendant is personally liable for the repay- 
 ment of money, his conversion thereof is not embezzlement. 
 Evidence of other distinct embezzlements cannot be given. 
 
 Per cukiam: This was an indictment in the circuit court of 
 Kane county, against John 0. Kribs, for embezzlement. On 
 a trial of the cause, the defendant was found guilty and sen- 
 tenced to the penitentiary for one year. 
 
 It appears, from the evidence introduced on the trial of the 
 cause, that George U.^Shaver, on the 26th day of June, 1874, 
 placed in the hands of the defendant $550, to be loaned at the 
 rate of ten per cent, for one year. A receipt was given for 
 the money, which was as follows: 
 
 " Elgin, 111., June 26, 1874. 
 " Eeceived of George Xl. Shaver, five hundred and fifty dol- 
 lars, to be loaned at ten per cent, for one year from this date. 
 
 John 0. Keibs." 
 
 One hundred and fifty dollars was paid back to Shaver on 
 tlie 9th day of November, 1874, and at the same time interest 
 was paid on the entire amount to the 1st day of December, 
 1874. The balance of the money the defendant converted to 
 his own use. 
 
Keibs v. People. 7T 
 
 If the money was placed in the hands of the defendant to 
 be loaned for one year, upon real estate security, at ten per 
 cent per annum, and he fraudulently converts the same to his 
 own use, the defendant would, no doubt, be guilty of the 
 offence charged. If, on the other hand. Shaver placed the 
 money in the hands of the defendant and looked to him for a 
 repayment, and relied upon the guaranty of the defendant for 
 ten per cent, interest from the time the money was paid over, 
 then no conviction could be had. While we do not propose 
 to express any opinion on the evidence, yet the fact that the 
 defendant guaranteed ten per cent, interest from the date the 
 money was received, and the subsequent payment of interest 
 on the money to December 1, 1874, in connection with the 
 agreement to repay the $400 on thirty days' notice, may pro- 
 perly raise a well founded doubt in regard to the guilt of the 
 defendant. 
 
 The proposition is too plain to admit of argument, that if 
 Shaver, when he gave the money to the defendant, relied upon 
 his honesty or responsibility to return it, with ten per cent, 
 interest, he can not resort to the criminal law of the state to 
 assist him to collect the debt. 
 
 But, aside from these considerations, the record discloses an 
 error for which the judgment of the circuit court must be 
 reversed. 
 
 On the trial, the court allowed the people, over the objec- 
 tion of the defendant, to prove that the defendant had collected 
 or received money belonging to other parties, and on several 
 occasions, which he had fraudulently converted to his own 
 use. This was error. The evidence should have been confined 
 to the charge for which the defendant was indicted. On the 
 trial of this indictment the law did not require him to come 
 prepared to meet other charges, nor does it follow because he 
 may have been guilty of other like offences, that he was guilty 
 of the offence charged in the indictment. 
 
 The evidence should have been confined strictly to the 
 offence charged in the indictment. This was not, however, 
 done, but improper testimony was allowed to go to the jury, 
 which could not fail to prejudice the rights of the defendant.. 
 
78 Phalen's Ceiminal Cases. 
 
 For the error in the admission of improper evidence, the 
 judgment will be reversed and the cause remanded. 
 Judgment reversed. 
 
 State v. Kent. 
 
 (32 Minn., 41.) 
 
 Embezzlement. — A joint owner of property is not guilty of embez- 
 zlement in fraudulently converting such property to his own use. It is not 
 the property of another within the meaning of the statute against embez- 
 zlement. 
 
 Bbket, J. Section 23, ch. 95, Gen. Stat., enacts that " if 
 any officer, agent, clerk or servant of any incorporated com- 
 pany, or if any clerk, agent or servants of any private person, 
 or of any corporation, * * * embezzles or fraudulently 
 converts to his own use, * * * without the consent of 
 his employer or master, any money or property of another, 
 which has come to his possession or is under his care by vir- 
 tue of such employment, he shall be deemed to have com- 
 mitted larceny." To sustain an indictment under this section 
 ■of the statute, the money or property charged to have been 
 embezzled, or fraudulently converted, must be the money or 
 property of another than the person indicted. 
 
 The defendant was collector of pew rents for a church cor- 
 poration, and acted .as such, under a special and express agree- 
 ment, by which, as compensation for his services, he was to 
 have " five per cent, of all the pew rents, no matter who col- 
 lected them." The effect of this agreement was to vest in 
 defendant an undivided one-twentieth interest in the rents 
 
State v. Kent. 79 
 
 collected, and to that extent to make him an owner of the 
 same, jointly with the corporation. In other words, the rents 
 collected were not the money or property of the corporation, 
 but the joint property of the corporation and the defendant. 
 They were therefore, not the property of another than the 
 defendant. It follows that the defendant is not properly 
 indictable, under the section of the statute before cited, for 
 his alleged embezzlement and fraudulent conversion of the 
 same, or any part thereof: Holmes' Case, 2 Lewin, 256, 
 cited 2 Archbold Or. Pr. and PL, 596, note; Reg. v. Bren, 
 cited 2 Bish. Or. Law, § 335, note 3; Rex v. Hoggins, Euss & 
 Eyan, li5; Comm. Stearns, 2 Met., 343, 349; Com. v. Libhy, 
 11 Met, 64; Com. v. Foster, 107 Mass., 221; 2, Bish. Cr. 
 Law, §§ 355, 356. 
 
 This conclusion practically disposes of the case in defen- 
 dant's favor. "Were it necessary for us to pass upon the other 
 points presented in the argument, we should be much inclined 
 to doubt whether, independant of the agreement, the course 
 of dealing between the corporation and v the defendant, by 
 which the former acquiesced in his practice of depositing the 
 rents collected on his own general account, and of treating 
 the deposits as his own, was not such as to divest the corpora- 
 tion of its specific property in the deposits, and to establish 
 between it and the defendant the simple relation of creditor 
 . and debtor. See Com. v. Libby, 11 Met., 64; Com. v. Stearns, 
 2 Met., 343. If this doubt be well founded, the result would 
 be the same as that before reached upon the construction of 
 the agreement. 
 Jtidgment and order refusing new trial reversed. 
 
 Note. — Agency cannot be regarded as constituted, under the statute, by 
 the mere relation assumed by one member of a partnership or business 
 society to another. Wharton's Criminal Law, sees. 1910 and 1953 (7 ed), 
 and cases there cited. 
 
80 Fhalen's Criminal Cases. 
 
 The Queen v. Negus. 
 
 (3 Cr. C. Res., 34.) 
 
 Embezzlement. — The defendant was indicted for embezzlement under 
 the statute, 34 and 25 Victoria, ch. 96, sec. 68. Held that upon the facts 
 in this case the prisoner was not a " clerk or servant" within the statute. 
 
 Case stated by the Assistant Judge of Middlesex session. 
 
 The prisoner was indicted for embezzling £17, as clerk and 
 servant to Roper and others. 
 
 The prisoner was engaged by the prosecutor to solicit orders 
 for them, and he was to be paid by a commission on the sums 
 received through his means. He had no authority to receive 
 money; but if any was paid to him, he was forthwith to hand 
 it over to his employers. He was at liberty to apply for orders 
 wherever he thought most convenient, but was not to employ 
 himself for any other persons than the prosecutors. Contrary 
 to his duty, he applied for payment of the above sum, and, 
 having received it, he applied it to his own use, and denied, 
 when asked, that it had been paid to him. 
 
 The prisoner's counsel contended that the prisoner was not 
 a clerk or servant within the statute, but the learned Judge 
 refused to stop the case, and directed the jury to find him 
 guilty. 
 
 The question was whetlier, upon the facts stated, the pris- 
 oner was a clerk or servant, and, as such, rightly convicted of 
 embezzlement. 
 
, The Queen v. Negus. 81 
 
 No counsel appeared for the. prisoner. 
 
 F. F. Lewis, for the prosecution: Reg. v. Bowers, 2 Law 
 Eep., 1 C. C, 41, somewhat resembles the present case, and is 
 an authority in favor of the prisoner; but there the commis- 
 sion agent carried on a retail trade for himself at a shop, and 
 so could not be deemed a clerk or servant of the merchant 
 who supplied coal for him to sell. 
 
 [BoviLL, C. J. And here the prisoner might apply for orders 
 wherever he thought most convenient.] 
 
 So might the traveler in Reg. v. Baily, 12 Cox, Or. C, 56; 
 he was nevertheless held to be clerk or servant of his employers. 
 
 [Blackburn, J. For he was under their control, having to 
 devote his whole time to the service.] 
 
 The stipulation that the prisoner was not to employ himself 
 for any other persons than the prosecutors shows that they 
 had control over him. 
 
 [BoviLt, 0. J. Not at all, He might go away to amuse 
 himself wherever he liked.] 
 
 Eeg. V. Tite, Leigh & Cave, Cr. C; Eeg. v. Turner, 11 Cox, 
 Cr. C, 551, were also cited. 
 
 BoviLL, C. J. The only question submitted to us is whether, 
 on the facts stated, the prisoner was a " clerk or servant," and, 
 as such, rightly convicted of embezzlement. The learned 
 assistant judge of the court directed the jury to find the 
 prisoner guilty, subject to this point being raised. 
 
 Generally speaking, I should say that the question whether 
 a person is a clerk or servant depends on so many considera- 
 tions that it is one to be left to the jury, as it is extremely 
 difficult for the court to come to a satisfactory conclusion upon 
 such a matter. Much depends on the nature of the occupa- 
 tion in which the individual . is engaged, and the kind of 
 employment. But we have to see if there was enough evidence 
 to show that the prisoner here was a clerk or servant. I 
 think that the fact is not sufficiently made out. "What is a 
 test as to the relationship of master and servant? A test used 
 in many cases, is to ascertain whether the prisoner was bound 
 to obey the orders of his employer, so as to be under his 
 
82 Phalen's Ceiminal Cases. 
 
 employer's control, and on the case stated, there does not 
 seem sufficient to show that he was subject to his employer's 
 orders, and bound to devote his time as they should direct. 
 Although under the engagement with them, it appears he was 
 still at liberty to take orders, or to abstain from doing so, and 
 the masters had no power to control them in that respect. 
 Where there is a salary, that raises a presumption that the 
 person receiving it is bound to devote his time to the service, 
 but when money is paid by commission, a difficulty arises, 
 although the relationship may still exist where commission is 
 paid, as in ordinary cases of traveler, in' Reg. v. Tite, Leigh & 
 Cave, Cr. C, 29; 30 T. J. (M. C), 142, and the other cases 
 cited. But in either case there may be no such control, and 
 then the relationship does not exist. All the authorities 
 referred to seem to show that it is not necessary that there 
 should be a payment by salary — for commission will do — nor 
 that the whole time should be employed, nor that the employ- 
 ment should be permanent — for it may be only occasional, or 
 in a single instance, if, at the time, the prisoner is engaged as 
 servant. The facts before us do not make out what the prose- 
 cution was bound to prove, viz., that the prisoner was clerk 
 or servant. 
 
 Beamwell, B. This conviction ought to be quashed, unless 
 we can see that the prisoner, on the facts stated, must have 
 been clerk or servant, within the meaning of the act of Par- 
 liament. I am of opinion that on the facts we cannot do so. 
 Looking to principle, we find that the statute was intended to 
 apply, not to cases where a man is a mere agent, but where 
 the relationship of master and servant, in the popular sense of 
 the term, may be said to exist. Eelb, C. J., in Reg. v. Bow- 
 ers, Law Rep., 1 C. C. R., 41, at p. 45, says the cases decide 
 " that a person who is employed to get orders and receive 
 money, but who is at liberty to get those orders and receive 
 that money when and where he thinks proper, is not a clerk 
 or servant within the meaning of the statute." I think that 
 is perfectly good law, consistent with all the authorities, and 
 applied here, it shows that the prisoner was not a clerk or ser- 
 vant within the definition there given. 
 
The People v. Allen. 83 
 
 Blaokbukn, J. I am of the same opinion. The test is 
 very much this, viz., whether the person charged is under the 
 control and bound to obey the orders of his master. He may 
 be so without being bound to devote his whole time to this 
 service; but, if bound to devote his whole time to it, that 
 would be very strong evidence of his being under control. 
 This case differs in nothing from the ordinary one of a com- 
 mission agency, except in the sole statement that th§ prisoner 
 was not to work for others. But I do not think that circum- 
 stance, by itself alone, enables us to say that he was a servant 
 of the prosecutors. 
 
 Archibald, J., concurred. 
 
 HoNTMAN, J. I agree. The question was not left to the 
 jury to decide, and I cannot satisfy myself that the relation- 
 ship of master and servant existed between the prosecutors 
 and the prisoners. It does not appear that the prisoner was 
 bound to obey every single lawful order. Possibly the master 
 might tell him to go somewhere, and he might justly refuse. 
 
 Conviction quashed. 
 
 For the statute, 34 and 35 Vict, ch. 96, 3eo. 68, see ante page 10. 
 
 The People v. Allen. 
 
 (5 Denio., 77.) 
 
 Bmbbzzlbmknt. — An indictment upon a statute, must state all the facts 
 and circumstances which constitute the statute offence, so as to bring the 
 accused precisely within the provisions of the statute. The Indictment 
 must allege in direct terms, that the person indicted was a clerk or «er- 
 
84 Phalen's Criminal Cases. 
 
 vant, officer or agent, etc. A constable who is employed to collect debts, by 
 suit or otlierwise, is not a " servant " or " clerk " within the meaning of 
 the statute. 
 
 The defendant was indicted and convicted, for embezzling- 
 certain money of one Wm. H. Snyder, his master, without 
 the assent of said Snyder. 
 
 It appeared on the trial that the defendant was a constable, 
 and had Entered into an agreement with Snyder to collect 
 accounts. One of the accounts was against Daniel Darrow, 
 defendant procured in favor of Snyder and against Darrow; 
 who paid the claim without any service of the process. De- 
 fendant returned the summons, ;and upon his evidence judg- 
 ment was rendered against Durrow and in favor of Snyder. 
 
 For the defendant it was argued that an agent is not with- 
 in the provisions of the statute, that the relation existing be- 
 tween the defendant and Snyder was not sufficient to make 
 the act of appropriating the money of the latter to his own 
 use an act of embezzlement. 
 
 For the people it was argued, that the defendant was a ser- 
 vant of Snyder, and the money embezzled was that of the 
 employer. 
 
 By the court, Beaedslet, Ch. J. As the defendant was 
 found guilty on the first count of the indictment only, the 
 others having been abandoned by the public prosecutor, that 
 count alone is now in question. It is not pretended on be- 
 half of the people that the first count charges any offence at 
 common law, but it is said to be sustained on the statute as 
 to embezzlement. (2 R. S., 678, § 59.) The first clause of/ 
 this section of the statute, and which alone can be supposed 
 to have any bearing on the case in hand, is, in terms, limited 
 to clerks and servants, and has no application to any other 
 class or description of persons. But the first count of the 
 indictment charges that the defendant as the agent of Snyder, 
 collected and received the money alleged to have been embez- 
 zled, and not that it was collected and received as his cleric or 
 servant. Nor is the averment that the money was received 
 as agent, at all changed or qualified by the subsequent alle- 
 gation that it came to the possession of the defendant " by 
 
The People v. Allen. 85 
 
 virtue of his said employment as such servant of the said — 
 Snyder, and while he was such servant as aforesaid^ This 
 only amounts to an allegation that the money was received 
 by the defendant as such servant, as an agent is or may be, 
 and not that he in fact received it as the servant of Snyder. 
 
 The term agent is nomen generalissimu, and although it 
 includes clerks and servants, who are properly agents of their 
 employers and masters, it is by no means restricted to such 
 persons. (Paley on Agency, by Dunlap, p. 1 and note.) 
 
 An indictment upon a statute must state all such facts and 
 circumstances as constitute the statute offence, so as to bring the 
 party indicted precisely within the provisions of the statute. 
 (1 Ohit. Cr. L , 281, 282, 283, ed. of 1841; Archb. Or. PI., 50, 
 ed. of 1846.) If the statute is confined to certain classes of 
 persons, or to acts done at some particular time or place, the 
 indictment must show that the party indicted, and the time 
 and place when the criminal acts were perpetrated, were such 
 as to bring the supposed offence directly within the statute. 
 In conformity with these principles it will be seen that the 
 precedents of indictments on the English statutes as to em- 
 bezzlements and which like the clause of the revised statutes 
 referred to, apply in terms to clerks and servants only, uni- 
 formly allege in direct terms, that the person indicted was 
 such clerk or servant. (3 Chit. Cr. L., 962; 3 Maule & SeL, 
 539; Archb. Cr. PL, 275.) These precedents for indictment 
 on 39 Geo. 3, ch. 85, and 7 and 8 Geo. 4, ch. 29. But indict- 
 ments on 52 Geo. 3, ch. 63, which makes certain acts of bro- 
 kers, agents and others, criminal offences, also allege that the 
 party indicted was a broker, agent or other particular person, 
 as the case might be. (3 Ohit. Cr. L., 967.) These precedents 
 are in conformity with the settled rule of law on this subject; 
 the court below therefore erred in holding that the first count 
 charged an offence within the section of the revised statutes 
 to which reference has been made. On this ground alone a 
 new trial would be proper, although I entertain no doubt that 
 the defendant, upOn the evidence in the case, was neither a ser- 
 vant nor clerk of Snyder, within the true meaning of this 
 section of the statute; and therefore had the indictment been 
 such as the law requires, the defendant could not have been 
 
86 Phalen's Criminal Cases. 
 
 convicted of embezzlement. Whether either of the other counts 
 in this indictment can be sustained, I shall not undertake to 
 determine. The conduct of the defendant, if the witnesses 
 are to be credited, and nothing appears in the case as presented 
 to render their statements at all questionable, was grossly 
 fraudulent, and in some respects of the most aggravated crimi- 
 nality. But whether this indictment is adapted to any offence 
 which can be proved, may be determined on another trial. 
 New trial ordered. 
 
 Note — In Zschocke v. People, 67 111., 127, the prisoner was a constable, 
 and one Eck, having an execution in his favor, issued upon a Justice's 
 judgment, against one Jacob Forsythe, delivered the writ to the prisoner, 
 to be executed; under the execution, the prisoner levied upon certain 
 goods of the judgment debtor, and took them to Eck's house and put 
 them in his possession; afterwards the prisoner came and took the 
 goods away, with Eck's consent, and sold them at private Sale, receiving 
 therefor $55 which the prisoner converted to his own use. 
 
 The prisoner being convicted upon an indictment charging him with 
 having stolen divers United States notes and current bank bills, for the 
 payment of $55 etc., the personal goods and property of Mathias Eck, he 
 removed the case to the supreme court where it was Mid, 1. That the levy 
 and seizure under the execution vested in the constable a special property 
 only; the general property remaining in the judgment debtor until a sale 
 according to law, that the plaintiflF in the execution, acquires no property 
 in the goods by the seizure, that he could not maintain an action of tres- 
 pass or trover against a wrong-doer. Such action could be brought only 
 by the officer. 3. When a sale is made under the writ, pursuant to law, 
 then the general property of the judgment debtor becomes divested, and 
 the proceeds of the sale remains in the custody of the law until actually 
 paid over to the plaintiff; and that in no view of the case would the evi- 
 dence support the position that the prisoner was the bailee of Eck, as to 
 the money received upon the private sale of the goods. And the judg- 
 ment was reversed. 
 
Queen v. Fotjlkes. 87 
 
 Queen v. Foulkes. 
 
 (2 Cr. Cas., Res. 150.) 
 
 Embezzlement. — The prisoner lived with his father, who was clerk to 
 the local board of Whitechurch and Dodington, at a salary £40 a year. 
 The prisoner lived with his father, and assisted him in his office. He was 
 not appointed or paid by the local board, and there was no evidence that 
 he was paid any salary by his father. In the course of business the pris- 
 oner received and appropriated to his own use a sum of money belonging 
 to the local board. Held, that the prisoner was a clerk or servant to his 
 father, and guilty of embezzlement. 
 
 Case stated by Qttain, J. 
 
 The prisoner was tried, at the last assizes for Shropshire, 
 for embezzlement. The indictment upon which the prisoner 
 was tried contained four counts. On the first count he was 
 charged that on the 22d day of September, 1871, he was em- 
 ployed as a clerk to the local board of Whitecharch and Dod- 
 ington, and received £600 on account of said local board, and 
 did steal £100, parcel of the said £600, the moneys of the 
 said local board, his employers. On the second count, that 
 on the 14th of February, 1872, he embezzled the sum of £100, 
 the money of the said local board, his employers. On the 
 third count, that on the 22d day of September, 1871, he em- 
 bezzled the sum of £100, parcel of a sum of £600, the money 
 of Charles Foulkes, his master. On the fourth count, that on 
 
88 Phalen's Criminal Cases. 
 
 the 14th day of February, 1872, he embezzled the sum of £100, 
 the money of Charles Foulkes, his master. Charles Foulkes, 
 the father of the prisoner, was appointed clerk to the local 
 board of Whitechurch and Dodington, at a salary of £4:0 a 
 year, and continued to hold such appointment till his death. 
 Charles Foulkes held various other appointments. The busi- 
 ness of the board was transacted at his office, the board paying 
 him a rent for the use of it. The prisoner lived with his father, 
 and assisted him in his office, and in conducting the business 
 of the local board. In the absence of his father, prisoner 
 acted for him at the meetings of the local board, and assisted 
 his father when present. Prisoner was not appointed or paid 
 by the local board. There was no evidence that the prisoner 
 was paid any salary by his father. The only evidence was that 
 he in fact assisted his father as clerk, or servant, or assistant 
 in his office as above described. In the year 1871, and while 
 Charles Foulkes was clerk to the local board as above men- 
 tioned, the board had occasion to raise a loan for the purpose 
 of building a market. The money was raised on mortgages 
 of the local rates. The prisoner managed the business of the 
 local board for his father. He filled in the usual form of mort- 
 gage, and either he or his father obtained the proper signa- 
 tures of the members of the local board. The course of busi- 
 ness was, that prisoner received, at his father's office, the 
 money from the mortgages, in exchange for the mortgages, 
 and paid it into the "Whitechurch and Ellesmere Bank (who 
 were the treasurers of the board), to an account called the 
 " market account." In the course of his employment, he em- 
 bezzled and appropriated to his own use the sum of money men- 
 tioned in the indictment. It was objected by the counsel for the 
 prisoner, that he could not be convicted of the first two counts of 
 the indictment, as he was not a clerk or servant of the board, nor 
 employed by the board in that or any other capacity ; and that 
 he could not be convicted on the third or fourth count, as 
 there was no evidence that he was the clerk or servant of his 
 father, or was employed by him in that capacity, beyond the 
 fact that he assisted his father, and that the moneys embezzled 
 were not the moneys of Charles Foulkes, but of the local board. 
 The prisoner was convicted and sentenced, but the learned 
 
Queen v. Foulkes. 89 
 
 judge respited the execution of the. sentence till after the de- 
 cision of the court in the case. The question for the court 
 was, whether, upon the above facts, the prisoner could be prop- 
 erly convicted on any of the counts of the indictment. The 
 following cases were cited before the learned Judge: Eeg. v. 
 Negus, Law Kep. 2 0. C, 34; Eeg. v. Beaumont, Dears. Cr. 
 C, 270; 2S L. J. (M. C), 54; Eeg. v. Tyru, Law Kep. 1 C. 0., 
 177, and the 11 and 12 Vict., ch. 63, sec. 138, was referred to 
 as authorizing the board (the district being a non-corporation 
 district) to allege that the property was the property of their 
 clerk. 
 
 Eose, for the prisoner. 
 
 The prisoner could not properly be convicted of embezzle- 
 ment. To constitute embezzlement by a person " being a 
 clerk, or servant, or being employed for the purpose or in the 
 capacity of a clerk or servant," 1, there must be a contract of 
 service of some kind, either expressed or implied. In the 
 present case there was none, for the prisoner was in no sense in 
 the employment of the local board, and the services he rendered 
 to his father were mere voluntary services, not rendered in pur- 
 suance of any contract. He cited Eex v. Burton, 1 Moo. Cr. 
 C, 237; Eex v. Hettleton, 1 Moo. Or. C, 259; Eeg. v. Bow- 
 ers, Law Eep., 1 C. C, 41 ; Eeg. v. Tyru, Law Eep. 1 C. C, 
 177; Eeg. v. Turner, 11 Cox Cr. C, 551; Eeg. v. Cullum, Law' 
 Eep., 2 C. C, 28; Eeg. v. JSTegus, Law Eep., 2 C. C, 34. 
 
 No counsel appeared for the prosecution. 
 
 CooKBUEN, C. J. I think there was evidence on which the 
 jury might , well find that the prisoner either was a clerk or 
 servant. The father held various offices, and the prisoner, his 
 son, in consequence of his father's illness, or for other reasons, 
 did the duties which the father would otherwise have had to 
 do himself, or to employ a clerk to do. It is true there was 
 no contract binding him to go on doing those duties. But 
 the relation of master and servant may well be terminable at 
 will, and while the prisoner did act, he was a clerk or servant. 
 
90 Phalen's Ceiminal Cases. 
 
 The second question is, whether there was an embezzlement, 
 I think there was. The money was to be received by the 
 father, though received for the local board. He was the proper 
 custodian of the money, and the son received it for him. 
 There was, therefore, evidence upon both points. 
 
 Beamwell, B. I am of the same opinion. If the prisoner 
 had not been the son of the man for whom he acted, and had 
 not lived with him, it is abundantly evident that he would 
 have been a clerk or servant, and would have been entitled to- 
 payment upon a quantum meruit. Then what difference 
 can his being a son make? It may affect the nature of his 
 remuneration, but nothing else. 
 
 With regard to the money, the father might have had to 
 account for it, but he was entitled to receive it from the son,. 
 therefore there was an embezzlement. 
 
 Mellae. J. The only difficulty which I can collect that the 
 learned judge felt was, that there was no evidence of an actual 
 contract of employment. But there is clear evidence that in 
 what the prisoner did, he was a clerk or servant. 
 
 Beett, J. The prisoner undertook to do things for his 
 father which a clerk does for his master, and to do them in 
 the way a clerk does them. Now, assuming that there was no 
 contract to go on doing those things, still as long as he did 
 them with his father's agreement, he was bound to do them 
 with the same honesty as a clerk, because he was employed 
 as a clerk. 
 
 Pollock, B. If it had been necessary to say absolutely 
 that the prisoner was a clerk or servant, I should have hesitated. 
 But I think the words " employed as clerk or servant " are- 
 wider, and that there is evidence to bring the case within them. 
 
 Conviction affirmed. 
 
 For the 34 and 25 Vict., ch. 96, sec. 68, see ante, p. 10. 
 
The People v. Sheeman. 91 
 
 The People v. Shebman. 
 
 (10 "Wend., 299.) 
 
 Embezzlement. — A stage-driver who is entrusted with money by virtue 
 of his employment, is a "servant" within the meaning of the statute. 
 
 The defendant was employed by Sprague & Demmon as a 
 stage-driver, and, as such, received a package of bank bills, to 
 be deposited by him in a certain bank. Instead of depositing 
 the bills in the bank, as directed, he absconded with them. 
 
 For the defendant, it was insisted that he could not be con- 
 sidered the olerk or Servant of his employer, within the mean- 
 ing of the statute. 
 
 For the people, it was argued that any one who is entrusted 
 with money, in consequence of his employment, is a servant 
 within the statute. 
 
 SoiTTHEELAND, J. The defendant was properly convicted 
 under the count for embezzlement. The provisions of the re- 
 vised statutes, under which the counts were framed,is sufficiently 
 comprehensive to embrace these cases: 2 K. S., 678, § 59. The 
 defendant was the servant of Sprague & Demmon, and the 
 money which he embezzled came into his possession, or under 
 his care, ly virtioe of his employment as such servant, within 
 the meaning of the act. He drove the stage of Sprague & 
 Demmon fi-o'm Lyons to Geneva, and Sprague & Demmon 
 contracted with the collector of canal tolls at Lyons to send 
 
92 Phalen's Cbiminai. Cases. 
 
 the tolls collected by him weekly to Geneva, and deposit them 
 in the bank at that place, to the credit of the treasurer, for 
 which they were to be paid fifty cents per package. A package 
 had once before this been sent by the defendant, and it is to be 
 inferred, though the fact is not expressly stated, that other 
 drivers of Sprague & Demmon had been in the habit of taking 
 them. 
 
 The care and custody of packages of every description are 
 a part of the ordinary duty of servants of this description, 
 although it is not their principal business ; and it appears to 
 me, that it would defeat one very important object of the act, 
 to restrict its application to clerks or servants, whose principal 
 or ordinary employment was the receiving and taking care of 
 the money, goods, etc., of their employers. E^either the lan- 
 guage nor spirit of the act require this restricted construction. 
 
 Motion for a new trial denied. 
 
 Note. — The defendant, Sherman, was guilty of larceny at common law, 
 he had not the possession, but only the custody of the money. 
 
 See R. V. Lavander, ante; R. v. Paradice, ante ; Como v. Berry, post ; Peo- 
 ple V. Dalton, ante, and Com. v. Warmouth, post. 
 
 The United States v. Haetwell. 
 (6 Wallace, 385.) 
 
 Embezzlement. — A clerk in the office of the Assistant Treasurer of the 
 United States is an officer, or other person, under the 16th section of the 
 Act of Aug. 6, 1846. 
 
 The 3d section of the Act of April 14, 1866, does not affect clerks. It is 
 confined to officers of banks and of banking associations. Where the de- 
 fendant is described in the indictment under the last named Act as clerk 
 in the office of the Assistant Treasurer at Boston, the court has no juris, 
 diction of the offence charged. 
 
The United States v. Haetwell. 93' 
 
 Certificate of division in opinion between the judges of the 
 Circuit Court of the United States, for the District of Massa- 
 chusetts. 
 
 The case is stated by the court. 
 
 Messrs. Henry Stamberry, Atty. G-eneral and J. H. Ashton, 
 for the plaintiff. 
 
 Messrs. H. W. Paine and E. M. Morse, Jr., for the defend- 
 ant. 
 
 Mr. Justice Swayne delivering the opinion of the court. 
 
 This case conies before us upon certificate of division in 
 opinion of the Judges of the Circuit Court of the United 
 States for the District of Massachusetts. 
 
 As disclosed in the record, the case is as follows: 
 
 The defendant was indicted for embezzlement. The indict- 
 ment contains ten counts. The first three are founded upon 
 the 16th section of the act of August 6, 1846 (9 Stat, at Law,. 
 59), the remaining seven upon the 3d section of the act of June 
 14, 1866 (14 Stat, at L., 66). 
 
 The counts upon the act of 1846, allege that the defendant, 
 being an officer of the United States, to wit: a clerk in the 
 office of the Assistant Treasurer of the United States at Bos- 
 ton, appointed by the Assistant Treasurer, with the approbation 
 of the Secretary of the Treasury, and as such charged with 
 the safekeeping of the public money of the United States, 
 did loan a large amount of said money with the safe keeping 
 whereof he was intrusted in his capacity aforesaid. The 
 names of the borrowers, and the amounts and description of 
 the money loaned are set forth. 
 
 The succeeding counts allege that the defendant, being a 
 person, not an authorized depositary of the public moneys of 
 the United States, to wit: a clerk of the office of the Assistant 
 Treasurer of the United States at Boston, appointed by him,with 
 the approbation of the Secretary of the Treasiiry, having the 
 care and subject to the duty, to keep safely the public moneys of 
 the United States, did knowingly and unlawfully appropriate 
 and apply another portion of said public money, of which he 
 
M Phalen's Ceiminal Cases. 
 
 %> 
 
 had the care, and was subject to the duty, safely to keep as 
 aforesaid, for a purpose not prescribed by law, to wit: did loan 
 the same. The particulars with reference to the loans are 
 given as in the preceding counts. 
 
 The testimony being closed, the opinion of the judges were 
 opposed upon the points : 
 
 (1) Whether the defendant was liable to indictment under 
 the 16th section of the act of August 6, 1846; and, 
 
 (2) Whether there is any offence, charged in the last seven 
 counts ujQder the 3d section of the act of June 14, 1866, of 
 which the court had jurisdiction. 
 
 The section referred to in the act of 1846, describes in three 
 places the persons intended to be brought within its scope. 
 The language used in that connection, is : 
 
 " All oiScers and other persons charged by this act, or any 
 other act, with the safe keeping, transfer and disbursement of 
 the public money, and hereby required," etc. 
 
 " If any officer charged with the disbursement of the public 
 money, shall accept or receive," etc. 
 
 " The provisions of this act shall be so construed as to apply 
 to all persons charged with the safe keeping, transfer or dis- 
 bursement of the public money, whether such persons be in- 
 dicted as receivers or depositories of the same." 
 
 Was the defendant an officer or person " charged with the 
 safe keeping of the public money," within the meaning of the 
 act? We think he was both. 
 
 He was a public officer. The General Approbation Act of 
 July 23, 1866 (14 Stat, at L., 200), authorized the Assistant 
 Treasurer, at Boston, with the approbation of the Secretary of 
 the Treasury, to appoint a specified number of clerks, who were 
 to receive, respectively, the salaries thereby prescribed. The 
 indictment avers the appointment of the defendant in the 
 manner provided in the act. 
 
 An office is a public station, or employment conferred by 
 the appointment of government. The term embraces the 
 ideas of tenure, duration, employment and duties. 
 
 The employment of the defendant was in the public service 
 of the United States. He was appointed pursuant to law, and 
 his compensation was fixed by law. Vacating the office of his 
 
The United States v. Haetwell. 95 
 
 superior would not have affected the tenilre of his place. His 
 •duties were continuing and permanent, not occasional or tem- 
 porary. They were to be such as his superior in ofl&ce should 
 prescribe. 
 
 A government office is different from a government contract. 
 The latter, from its nature, is necessarily limited in its dura- 
 tion and specific in its objects. The terms agreed upon define 
 the rights and obligations of both parties, and neither may 
 depart from them without the assent of the other. U. S. v. 
 Maurice, 2 Brock., 103; Jackson v. Healy, 20 Johns., 495; 
 Yaughn v. English, 8 Cal., 39; Sanford v. Boyd, 2 Cranch, C. 
 C, 79; ex parte Smith, 2 Cranch, C. C, 693. 
 
 The defendant was appointed by the head of a department, 
 within the meaning of the constitutional provision upon the 
 subject of the appointing power. Const., Art. II., Sec. 2. 
 
 The sixth section of the act of 1846, after naming certain 
 public officers specifically, proceeds: 
 
 " And all public officers, of whatever grade, be, and they 
 are, hereby required to keep safely, without loaning, using, or 
 depositing in banks, or exchanging for other funds than as 
 allowed by this act, all public money collected by them, or 
 otherwise at any time placed in their possession and custody, 
 till the same is ordered, by the proper department or officer of 
 the government, to be transferred, or paid out." 
 
 This clearly embraces the class of subordinate officers to 
 which the defendant belonged. 
 
 "We are of the opinion that the act prescribes punishment 
 for the offence with which the defendant is charged. 
 
 The first part of the sixteenth section declares, that if any 
 officer to whom it applies shall convert to his own use, loan, 
 deposit in bank, or exchange for other funds, except as per- 
 mitted by the act, any of the public money intrusted to him, 
 every such act shall be deemed and adjudged to be an embez- 
 zlement, and is made a felony. 
 
 It next enacts that if any officer, charged with the disburse- 
 ment of public money shall take a false voucher, " every such 
 act shall be a conversion to his own use of the amount speci- 
 fied " in such voucher. 
 
 This clause then follows : " And any officer or agent of the 
 
96 Phalen!s CEiMiNAi Cases. 
 
 United States, and all persons participating in sucli act, being- 
 convicted thereof before any court of the United States of com- 
 petent jurisdiction, shall be sentenced to imprisonment, for a. 
 term of not less than six months nor more than ten years, and 
 to a iine equal to the amoiint of the money embezzled." 
 
 This clause is to be taken distributively. It applies, and 
 was clearly intended to apply, to all the acts of embezzlement 
 specified in the section — to those relating to moneys in the first 
 category, as well as those relating to vouchers in the second.- 
 The context of the section and the language of the clause both 
 sustain this view of the subject. If this be not the proper 
 construction, then the consequences would follow that in this 
 elaborate section, obviously intended to cover the whole ground 
 of fraud by receivers, custodians and disbursers of the public 
 money, of every grade of ofiice, punishment is provided for 
 only one of the offences which the act designates. There is no 
 principle, which, j)roperly applied, requires or would warrant 
 such a construction. 
 
 It is urged that the terms used in the sixteenth section to 
 designate the persons made liable iinder it, are restrained and 
 limited to principal oflicers, by requirements and provisions 
 which are applicable to them, and are inapplicable to all those 
 holding subordinate places under them. To this there are- 
 several answers. We think the only effect of these provisions 
 is to operate, according to their terms, where such higher ofli- 
 cers are concerned. They are without effect as to the subordi- 
 nates, to whom they are inapplicable. They do not take 
 offenders of that class out of the penal, and other provisions of 
 the statute, which must be conceded otherwise to embrace 
 them. The broad language of the provision in the preceding 
 sixth section, which has been referred to, is coupled with no 
 qualification whatever, expressed or implied. 
 
 If the subordinates are not within the act, there is no pro- 
 vision in the laws of the United States for their punishment 
 in such cases. So far as those laws are concerned, they may 
 commit any of the crimes specified with impunity. We think 
 it clear that it was not the intention of Congress to leave an 
 omission so wifie and important in the act, and our minds have 
 
The XJnitbb States v. Haetwell. 97 
 
 been brought satisfactorily to the conclusion that they have not 
 done so. 
 
 We are not unmindful that penal laws are to be construed 
 strictly. It is said that this rule is almost as old as construc- 
 tion itself. But, whenever invoked, it comes attended with 
 qualifications and other rules no less important. It is by the 
 light which each contributes, that the judgment of the court is 
 to be made up. The object in construing penal, as well as 
 other statutes, is to ascertain the legislative intent. That con- 
 stitutes the law. If the language be clear, it is conclusive. 
 There can be no construction, where there is nothing to construe. 
 The words must not be narrowed, to the exclusion of what the 
 Legislature intended to embrace; but that intention must be 
 gathered from the words, and they must be such as to leave no 
 room for a reasonable doubt upon the subject. It must not be 
 defeated by a forced and over strict construction. The rule 
 does not exclude the ajjplication of common sense to the terms 
 made use of in the act, in order to avoid any absurdity which 
 the Legislature ought not to be presumed to have intended. 
 When the words are general, and include various classes of 
 persons, there is no authority which would justify a court in 
 restricting them to one class and excluding others, where the 
 purpose of the statute is alike applicable to all. The proper 
 course in all cases is to adopt that sense of the words which 
 best harmonizes with the context, and promotes, in the fullest 
 manner, the policy and objects of the Legisla,ture. The rule 
 of strict construction is not violated by permitting the words 
 of the statute to have their full meaning, or the more extended 
 of two meanings, as the wider popular instead of the more 
 narrow technical one ; but the words should be taken in such a 
 sense, bent neither one way nor the other, as will best manifest 
 the legislative intent. U. S. v. Wiltberger, 5 Wheat., 96; U. 
 S. V. Morris, 14 Pet., 475; U. S. v. Winn., 3 Sumn., 211; 1 
 Bish. Cr. Law, sec. 123; Bac. Abr., tit. Statute, 1. 
 
 We think we have not transcended these principles, in coming 
 to the conclusions we have announced. 
 
 The determination of the second question certified depends 
 upon the construction of the third section of the act, to which 
 it refers. 
 7 
 
98 Phalen's Criminal Cases. 
 
 That section provides, " that if any banker, broker or other 
 person, not an authorized depository of public money," shall 
 do either of the acts therein specified, every such act shall be 
 held to be embezzlement. The penal sanction with which the 
 section concludes is as follows : " And any president, cashier, 
 teller, director or other officer of any bank or banking associa- 
 tion, who shall violate any of the provisions of this act, shall 
 be deemed and adjudged guilty of an embezzlement of public 
 money, and punished as provided in section two of this act." 
 
 This clause is limited in its terms to the officers named in it. 
 There is nothing which extends it beyond them. It cannot, by 
 construction, be made to include any others. It is confined to 
 officers of banks and banking associations. The defendant is 
 not brought within the act by the averments contained in the 
 counts of the indictment, which are founded upon it. They 
 describe him only as a clerk in the office of the Assistant 
 Treasurer, at Boston. As such, the act does not affect him, 
 and the court has no jurisdiction of the offences charged. 
 These counts are, therefore, fatally defective. 
 
 The first point certified up will ie answered in the afirma- 
 tive, and the second in the negative. 
 
 Mr. Justice Miller, Mr. Justice Grier and Mr. Justice Field 
 dissented to the answer given to the first question, holding that 
 the statute applied exclusively to the legal custodians of the 
 public money., and not to their clerks. 
 
 A dissenting opinion was filed by Mr. Justice Miller, "which 
 is omitted here. 
 
Thk L'koi'lk v. Hennessey. 99 
 
 The People v. Hennessey. 
 (15 Wend., ^148.) 
 
 Embkzzlembnt. — The words any other person, in the statute, means per- 
 sons other than he who it guilty of the embezzlement. 
 
 Evidence. The unsupported confession of a defendant will not sustain 
 a conviction for embezzlement. 
 
 Defendant was indicted for embezzling money, received by 
 Mm as tbe servant of one Joseph Fisk, his master. 
 
 It appeared upon the trial that Fisk was the Marshal of the 
 city of Albany, a corporation, and, as snch, employed the prison- 
 er to •collect assessments upon property in that city. 
 
 Defendant asked for his discharge, 1, on the grounds ; that 
 the embezzlement statutes did not apply to the property of the 
 Tnaster, but to the property of any other person; 2, That the 
 defendant was the servant of Fisk, in his official capacity as 
 marshal, and not of a private person, within the statute ; 3, 
 That the proof of the receipt of the money was not sufficient; 
 4, That the corpus delicti had not been proved. 
 
 By the court, Savage, C. J. In this case two questions 
 arise; 1, Whether the indictment charges an offence under 
 the statute; 2, Whether the conviction was proper. The sta- 
 tute is in substance as follows : 
 
 If any clerk or servant of any private person or corporation 
 shall embezzle or convert to his own use, without the assent 
 
100 Phalen's Criminal Casks. 
 
 of his master or employer, any money, goods, rights in action, 
 or other valuable security, or effects whatever, 'belonging to any 
 other person, which shall come into his possession, by virtue 
 of such employment, he shall, upon conviction, be punished, etc. 
 The defendant's counsel insists, that to bring the offence 
 within the statute, the property embezzled should belong to 
 some person other than the master; and he contends that such 
 is the true construction of the statute; that the words " belong- 
 ing to any other person," means belonging to any person other 
 than the master, or employer. To my mind it is very clear 
 that they mean, belonging to any person other than the ser- 
 vant who is guilty of the embezzlement. The idea is, that he 
 shall be punished for unlawfully converting or appropriating 
 to his own use any money, goods, etc., of any person other 
 than his own, which shall come to his hands, by reason of his 
 relation in which he stands as clerk or servant to his employer. 
 Any other construction would impute to the legislature an ab- 
 surdity. The very term " embezzlement " is peculiarly applica- 
 ble to a fraudulent appropriation, made by a servant, of goods 
 entrusted to him by his master. By the - common law, .it was 
 not larceny in a servant fraudulently to dispose of his master's 
 goods committed to him to keep, but only a breach of trust. 
 The statute 21 H. 8, ch. 7, recites that it was doubtful whether 
 such an offence was felony, and it enacts that servants being 
 over eighteen years of age, and not apprentices, to whom cas- 
 kets, jewels, money, goods or chattels of their masters shall be 
 delivered to keep, and who shall embezzle the same, or convert 
 the same to their own use, with intent to steal, shall be adjudged 
 guilty of felony, and punished accordingly. This statute, in 
 terms, made the offence of embezzling property delivered by 
 the master, felony ; the property of others was not expressly 
 embraced, and it was held, in Bazely^s case, 2 East's P. C, 
 571, that where a banker's clerk received money and notes 
 paid in by a customer, and embezzled the notes, that the offence 
 was not larceny, but only a breach of trust. This decision 
 produced the statute 39 Geo. 3, ch. 85, which is entitled " an 
 act to protect masters against embezzlement by their clerks or 
 servants." It recites, that whereas bankers, merchants and 
 others are obliged to entrust their clerks and servants with re- 
 
The People v. Hennessey. 101 
 
 ceiving, paying, negotiating, exchanging or transferring money, 
 goods, bonds, bills, notes, bankers' drafts, and other valuable 
 effects and securities; and whereas doubts have been enter- 
 tained whether the embezzling of the same amounts to felony, 
 it enacts that the person, so embezzling the same, shall be 
 deemed to have feloniously stolen the same from his master or 
 employer, for whose use, or on whose account the same was 
 delivered to him, or possession taken by him. The statute 21 
 Henry 8, ch. 7, was substantially enacted in this state, in 1788, 
 1 K. L., 112, which was confined to the embezzlement of money, 
 goods or chattels delivered to be safely kept. The act of Feb- 
 ruary 25, 1813, extends the offence to the embezzling of not 
 only money, goods and chattels, but also bills of exchange, bonds, 
 orders, warrants, bills or promissory notes, for payment of 
 money or any public security. The act of April 13, 1819, de- 
 clares that oflScers, agents, clerks or servants of banks, or any 
 person employed in such capacity, who shall embezzle any 
 money, goods, bonds, bills, checks, notes, bankers' drafts, or 
 ■other valuable security or effects whatsoever, belonging to such 
 bank, or to any person having lodged the same with such bank, 
 or such ofiicer or servant, shall be guilty of felony, etc. The 
 revised statutes, 2 E. S., 678, § 59, were no doubt intended to 
 embrace, and do embrace, the pith and substance of both our 
 previous statutes, aiid also of the 39th Geo. 3, ch. 85. Can it 
 be believed, that when the whole course of legislation on this 
 subject, has been aimed at the protection of the master or em- 
 ployer, against the frauds of those necessarily entrusted with 
 their property, the legislature, when revising and embodying 
 previous statutes into a more simple form of enactment, should 
 lose sight of the great object in view, and protect every person 
 except the one most liable to be defrauded? The 60th section 
 shows that it was the intention of the legislature to go further 
 in favor of the master or employer than of other persons, by 
 making it an offence to embezzle any instrument executed by 
 such master, but not yet issued; a note, for instance, drawn and 
 signed for the purpose of being discounted, or delivered in the 
 course of business, but not actually put in circulation. It is 
 very clear, therefore, that the offence consists in embezzling 
 the money, goods, rights in action, or other valuable security or 
 
102 Phalen's Ceiminal Cases. 
 
 effects whatever, belonging to any person other than the per- 
 son guilty of the embezzlement, wMch shall have come to his 
 possession, or under his care, by virtue of his employment as 
 clerk or servant of a private person; or as officer, agent, clerk 
 or servant of any incorporated company. 
 
 The next point arising upon this bill of exceptions is, whether 
 the defendant was properly convicted upon his own confession 
 made to his master, uncorroborated by any otherjfact or cir- 
 cumstance. Generally speaking, the admission of a fact ren- 
 ders it unnecessary to prove it. Of admissions, or confessions, 
 there are several kinds: 1. A confession in open court of the 
 prisoner's guilt, which is conclusive, and renders any proof un- 
 necessary; 2. The next highest kind of confession is that which 
 is made before a magistrate; 3. The lowest is that which is 
 made to any other person. All these confessions, if voluntary, 
 are competent evidence, and it is said, by most writers on the 
 law of evidence to warrant a conviction, although there is no 
 positive proof aliunde that the offence was committed. 1 
 Macnally, 51; 1 Phil. Ev., 86; Archb. Cr. PL, 55. 
 
 It is stated by Mr. East, in his Crown Law, 1 East's P. C. 
 133, that in the case of Francis Francia, in 1716, it was agreed, 
 at a conference of the judges, preparatory to his trial, among 
 other things, that in all cases the confession of a criminal may 
 be given in evidence against him ; and that in case of treason, 
 if such confession be proved by two witnesses, it is proper 
 evidence to be left to the jury. Mr. Justice Foster thought 
 this decision wrong, though he admitted it might be too late 
 to controvert the authority of it. He insists that the rule 
 should never be carried further than to a confession made 
 during the solemnity of an examination before a magistrate. 
 For, he observes, hasty confessions, made to persons having no 
 authority to examine, are the weakest and most suspicious of 
 all evidence ; words are often misreported, and extremely liable 
 to misconstruction, and while, he says, this evidence is not, in 
 the ordinary co^irse of things, to be disproved by negative 
 evidence, as proof of plain facts may be, and often is con- 
 fronted. It will be found, I think, that however broadly 
 judges and elementary writers have laid down the rules, yet 
 most, if not all the reported cases, show that very few convic- 
 
 / 
 
The People v. PIennessey. 103 
 
 tions have taken place without some evidence that a crime has 
 been committed, independent of the confession of the accused. 
 The case of John Bemish, Foster's Cr. L. 10, is an instance of 
 a conviction on the confession of the prisoner. There was, 
 however, one witness who proved him to have been in ai-ms 
 with the rebels; and the two witnesses who swore to his con- 
 fession, who also saw him among the officers of the rebels, 
 who were confined apart from the common men, and he there 
 gave in his name as a lieutenant. See Lamb's case, 2 Leach, 
 625; Thomas' case, in 728; Wheeling's case, 1 Leach, 349. 
 In the case of Kex v. White, Kussell & 'Rja.n, 508, the de- 
 fendants were indicted and tried for stealing four bushels of 
 oats, the goods of William Pearce. On the trial, Pearce could 
 not swear that he had lost any oats. There was other evidence. 
 Pearce found that the door of his granary had been forced. 
 Another witness saw two men coming from Pearce's yard 
 about two in the morning, each with a sack on his shoulders. 
 Another swore that the prisoner, Wliite, asked him to carry 
 oats to a Mr. Johns, who swore that he bought oats at the 
 time mentioned of White; and it was also proved that those 
 oats were of the same kind with Pearce's. The confessions of 
 the prisoner before a magistrate were then produced and given 
 in evidence, although Mr. Justice Burrough doubted the pro- 
 priety of it, as Pearce was unable to prove that a felony had 
 been committed. The point wasj-eserved for the judges, who 
 afterwards held the conviction right. Another prisoner was 
 tried at the same time (Jolm Tipj^et), for a similar offence, 
 and upon similar testimony, together with his confession. The 
 judges were of opinion that the conviction was right, as there 
 was not only the confession, but the evidence of Pearce, which 
 made it probable that oats had been stolen, and also evidence 
 that tlie door of the granary had been broken. Most of the 
 judges thought the confession alone sufficient, but they laid stress 
 upon the fact that there was other evidence, though not sufficient, 
 perhaps, to prove that a felony had been committed. So, too, in 
 Eex V. Eldridge, Russell &'Eyan, 440, the prisoner was convicted 
 upon his confession for stealing a mare; bvit it was proved 
 that he had the mare in his possession, under very suspicious 
 circumstances, and sold her for £12, she being worth £35. 
 
104 Phalen's Ckiminal Cases. 
 
 The judge who presided, thought there was not -evidence of a 
 felony having been committed, independent of the confession, 
 which had been taken before a magistrate. The case was 
 referred to the judges, who were of opinion that there was 
 sufScient evidence to confirm the confession, and that the con- 
 viction was right. Kex v. Falkner & Bond, Kussell & Kyan, 481. 
 The defendants were convicted upon their confession of the 
 robbery of one Hallidaj^ Halliday did not appear upon his 
 recognizance; and there was evidence that Falkner had been 
 desirous of preventing Halliday's appearing. The conviction 
 was held right. These convictions were in 1812 and 1823; 
 and if the rule had been settled by previous cases, where was 
 the necessity for producing any evidence beside the confes- 
 sions ? The truth is, no court will ever rely upon the confession 
 alone, when it is apparent that there is evidence aliuTide to 
 prove that an ofEence has been committed. In the case now 
 before us, it was manifest that there were witnesses, not before 
 the court, who could have given material testimony to prove 
 facts, essential to the body, of the offence. In all the cases in 
 Russell & Ryan, an attempt was made to prove the felony by 
 testimony other than the confession of the prisoner; and in 
 most of them the court were of opinion that the confession 
 was sufficiently corroborated. In this case there was no cor- 
 roboration ; no confession before a magistrate, nor to any per- 
 son but the prosecutor, and then not under circumstances to 
 show that he was charged with being guilty of a felony. In 
 our opinion such a conviction o-iight not to be sustained. 
 ISTew trial granted. 
 
CoEY V. State. 105 
 
 CoET Y. State. 
 
 (55 Georgia, 336.) 
 
 Embezzlement. — OflBcers, clerks and agents of unauthorized corpora, 
 tions are not liable to prosecution for embezzling the funds of such 
 corporations. 
 
 Jackson J. The defendant was indicted as cashier of the 
 branch oifice of the Freedman's Saving and Trust Company, 
 in Atlanta, G-eorgia, for the offence of embezzlement, in secret- 
 ing and stealing over $8,000 of money deposited in said branch 
 oflfice, and the indictment was framed on section 4421 of the 
 Code. The question for our review is whether the cashier of 
 the branch office of said company, in Atlanta, is subject to the 
 penalties and punishment prescribed in that section of the 
 Code, and the answer to the question depends upon the answer 
 to this: Was that branch bank, or branch office, a corporate 
 body in this State in the sense of the statute? 
 
 1, 2. The Freedman's Saving and Trust Company is a cor- 
 poration chartered by Congress, and located in the city of 
 Washington. The charter gives it no power to establish a 
 branch anywhere, l^o act of Congress, outside of its charter, 
 gives it such power, nor has the Legislature of Georgia 
 granted it the franchise to locate a branch for the transaction 
 of its business within the limits of this State. Its existence 
 as a corporation, created by Congress, and located in the city 
 of Washington, will be recognized by our courts ; but its exist- 
 
106 Phalen's Criminal Cases. ' 
 
 ence as a corporate body, located anywhere in Georgia, must 
 depend upon the power granted in its charter by Congress, or 
 some other constitutional act of Congress, or some statute of 
 Georgia, "We have been cited to no such law, and we know of 
 none. It is not the policy of the State to encourage the loca- 
 tion in our midst of the branch office of foreign corporations, 
 and the criminal statute should not be so enlarged, by construc- 
 tion, to embrace such branches located here without authority 
 of "law. Section 421 of the Code was designed to protect our 
 own corporate bodies, chartered by our own State, and doing^ 
 business here under the authority of this State, in the exer- 
 cise of franchise granted by it, and to punish the officers of 
 such corporations for embezzling the funds thereof. The sec- 
 tion actually puts such corporations upon an equality with the 
 public departments of the State government, and of the coun- 
 ties, towns and cities of the State, and imposes upon the offi- 
 cers of all alike the same punishment, thus throwing the 
 segis of its protection around all its corporations as around 
 its counties, towns, cities and the various departments 
 of its own government. It reads thus: " Any officer, 
 servant, or other person employed in any public de- 
 department, station or office of government of this State, or in 
 any county, town or city of this State, or in any bank or other 
 corporate body in this State, or any president, director or stock- 
 holder of any bank, or other corporate body in this State, who 
 shall embezzle," etc. ISTow can it be seriously contended that 
 the legislature meant to include in this section a corporate 
 body in this State exercising franchises here without her 
 authority, and without the sanction of any law, State or fed- 
 eral? Did she mean to protect the exercise of franchises with- 
 in her limits, which no law-making power recognized by her 
 ever granted, and to place such franchises thus illegally exer- 
 cised upon an equality with those granted by herself, and 
 upon an equality, too, with her own departments of the State 
 government? We cannot think so; and if she did not so 
 mean in the section of the code quoted, and on which the in- 
 dictment is framed, the defendant was certainly convicted on 
 this coimt without authority of law. It is vain to argue 
 that the change of the words " of this State," when applied to 
 
CoEY V. State. 107 
 
 the departments of government, and to the counties, towns 
 and cities in the section to the words " in tliis State," when 
 applied to the corporate bodies, has any significance. "When- 
 ever the banks are elsewhere referred to in this division of the 
 code, they are described as banks in this State, and in such 
 connection as to make it unmistakable that the Legislature 
 means banks chartered by this State. See Code, Sec. 4426, 
 4427. It is a fundamental principle of the common law that 
 penal statutes, should be construed strictly. It is scarcely nec- 
 essary to invoke the rule of construction here. It would 
 require an extremely liberal construction to bring the officer 
 of a corporate body, illegally located in the State, within the 
 purview of this statute. 
 
 3, 4. But there is a second count in the indictment, and the 
 punishment under the section is the same as under the first 
 count; it is, therefore, said that the verdict of guilty, being 
 general, may be predicated upon either count. Tliat may be 
 so; and as we recognize the Freedman's Saving and Trust 
 Company as an artificial person living in the city of Washing- 
 ton, and some of whose property may have got into Georgia, 
 and somebody intrusted with it here may have stolen it, and as 
 this second count is framed upon section 4422 of the Code, 
 which punishes any bailee who thus steals after a trust, we do 
 not see why this defendant could not be punished under the 
 facts proven in this case under the section. We regret, there- 
 fore, that on examining the transcript of the record, we find 
 that this count, as it appears there, is bad, it being alleged that 
 the fraudulent conversion of the money was made with the 
 consent of the owner. Of course no crime is charged in 
 such a count, and there can be no legal conviction upon it. It 
 is said that the clerk, in copying the bill of indictment, made 
 a mistake and wrote "with" when he should have written 
 " without the consent of the owner." This may or may not 
 be true. It has not been verified to us in the only way it can 
 legally be done, by a suggestion of a diminution of the record 
 on or before the calling of the case. Code, section 4282, rule 
 9. Our only course is to adhere to the law, and to rule 
 on principle. It may sometime work seeming injustice ; a 
 departure from it would open the flood-gates of speculation, 
 
108 Phalen's Ceiminai Cases. 
 
 and unsettle the entire practice of the court. In this case any 
 wrong done can be but temporary; the party can be tried 
 :again, and if found guilty on the second count properly 
 framed, he can be punished according to law. 
 
 Let the judgment be reversed, and a new trial granted. 
 
 Note. — In People v. Barrie, 49 Cal., 343, the defendant was charged in 
 the indictment with having, on the 3d day of February, 1874, stolen ten 
 flasks and three soda bottles containing quicksilver, the property of the 
 "Quicksilver Mining Company, of New York." 
 
 The prosecution, on the trial, proved by one Rondel, that the company 
 known by the name of the " Quicksilver Mining Company of New York," 
 was doing business as a corporation (ie/acio in California. The defend- 
 ant argued that it was error to admit parol evidence that the company 
 known by the nanje of the " Quicksilver Mining Company of New York," 
 was doing business as a company defaeto in California, but contended 
 that proof should have been made that the laws of New York a. lowed 
 corporations to be formed there for quicksilver mining, and that the cor- 
 poration had no existence there. 
 
 In delivering the opinion of the court, McKinslry, J., said : " Defendant 
 was indicted for feloniously stealing quicksilver, the property of the 
 ' Quicksilver Mining Company of New York.' " 
 
 The prosecution proved by Rondel, that the company known by the 
 name given in the indictment was a corporation de facto, doing business 
 as such. This was sufficient. People v. Frank, 28 Cal., 507; People v. 
 Hughes, 29 Id., 257; and People v. Ah Sam, 41 Id., 645. 
 
 In State v. Tumey, 81 Ind., 559, it was held, that where an agent of a 
 foreign insurance company was prosecuted for embezzling money of the 
 company, received by him as agent, it was no defence that he had not filed 
 the certificate necessary in order to enable him legally to transact business 
 in the State, and that, therefore, his transaction of business and receipt of 
 the money was unlawful. 
 
Commonwealth v. Chaei.es O. Bebey. 109" 
 
 Commonwealth v. Chaeles O. Beeet. 
 (99 Mass., 428.) 
 
 Embezzlement. — If a servant fraudulently appropriate goods whlclv 
 ■were, at the time of such appropriation, in the possession of the master, 
 ■whether actual or constructive, although in the custody of the servant, the 
 crime is larceny. 
 
 A servant who receives goods from his master for a special purpose, 
 has only the custody; the possession remains in the master. 
 
 Where a servant of a copartnership fraudulently appropriated money 
 which he had received from one member of the firm, under, direction to 
 carry it to another member. Held that he ■was not liable on an indictment 
 for embezzlement. 
 
 Indictment, stated in the bill of exceptions to 'have been 
 found on the Gen. Sts. C. 161, §41, for embezzling bank bills 
 of the amount and value of $950. 
 
 At the trial in the Superior Court, before Brigham, J., these 
 facts appeared: The defendant was in the employ of a firm, 
 consisting of Daniel Shaler and George W. Safford, and others, 
 who had a furniture factory in South Boston, and a warehouse 
 in the city of Boston proper. His special duty was to drive a 
 team ; but he was liable to perform any other kind of service 
 which might be assigned to him by his employers. On the 
 20th day of July, 1867, Shaler directed the defendant to get 
 $950 from Safford at the warehouse, and bring the same to 
 Shaler at the factory. In pursuance of this direction, the de- 
 fendant applied to Safford, for the money, and Safford delivered 
 
no Phalen's Criminal Cases. 
 
 the same to him, in a package of bank bills of the amount and 
 value of $950. The defendant never carried the package to 
 Shaler, but left the State ; remained absent for several weeks ; 
 and on returning reported to his employers that, after receiving 
 the money, he visited several tippling shops, became drunk 
 and unconscious, and did not regain his senses until the morn- 
 ing of July 21, when he found himself lying in a doorway on 
 Long Wharf, in Boston; that he lost the money during this 
 period of drunkenness, and that on discovering the loss his 
 shame was so great that he left without seeing his family, or 
 any of his friends, and without telling anybody of his misfor- 
 tune. There was evidence going to show that he left Boston 
 on the 20th day of July, the day before the alleged drunk- 
 enness. 
 
 The defendant asked the judge to rule " as to the defend- 
 ant's relations to his employers, and the delivery of the prop- 
 erty to him, that said facts proved, if any crime, the crime of 
 simple larceny, and not embezzlement; that, if embezzlement, 
 it was embezzlement within the Gen. Sts., C. 161, § 28 ; and 
 that said indictment could not be maintained under the evi- 
 dence." The judge refused so to rule; and instructed the 
 jury, on the contrary, " that, if the defendant was guilty, he 
 was guilty of embezzlement as set forth in said indictment, 
 and not larceny." The jury returned a verdict of guilty; and 
 the defendant alleged exceptions. 
 
 J. H. Bradley, for the defendant. 
 
 C. Allen, Attorney-General, for the Commonwealth. 
 
 HoAE, J. The bill of exceptions states that this indictment 
 was found under Gen. Sts., C. 161, § 41. It seems to be a 
 good indictment under that section, or under § 35 of the same 
 chapter. Commonwealth v. Concannon, 6 Allen, 506. Com- 
 monwealth V. Williams, 3 Gray, 461. 
 
 But the more important question is, whether, upon the facts 
 reported, an indictment can be sustained for the crime of em- 
 bezzlement. The statutes creating that crime were all devised 
 for the purpose of punishing the fraudulent and felonious 
 
Commonwealth v. Charles O. Beekt. Ill 
 
 appropriation of property, which had been intrusted to the 
 person, by whom it was converted, to his own use, in such 
 a manner that the possession of the owner was not violated, so 
 that he could not be convicted of larceny for appropriating it. 
 Proof of embezzlement will not sustain a charge of larceny. 
 Commonwealth v. Simpson, 9 Met., 138. Commonwealth v. 
 King, 9 Cush., 284. In the case last cited, it is said by Mr. 
 Justice Dervey that " the offences are by us considered so far 
 distinct as to require them to be charged in such terms as will 
 indicate the precise offence intended to be charged." If the 
 goods are not in the actual or constructive possession of the 
 master, at the time they are taken, the offence of the servant 
 will be embezzlement, and not larceny." We see no reason 
 why the converse of the proposition is not true, that, if the 
 property is in the actual or constructive possession of the 
 master at the time it is taken, the offence will be larceny, and 
 not embezzlement. And it has been so held in England. 
 Where the prisoner was the clerk of A, and received money 
 from the hands of another clerk of A, to pay for an advertise- 
 ment, and kept part of the money, falsely representing that 
 the advertisement had cost more than it had; it was held that 
 this was larceny, and not embezzlement, because A had had 
 possession of the money by the hands of the other clerk. Rex 
 V. Murray, 1 Mood., 276; S. C. 5, C. & P., 145. The distinc- 
 tion is between custody and possession. A servant who 
 receives from his master goods or money, to use for a specific 
 purpose, has the custody of them, but the possession remains 
 in the master. 
 
 The St. 14 and 15 Yict., C. 100, § 13, provided that when- 
 ever, on the trial of an indictment for embezzlement, it should 
 be proved that the taking amounted to larceny, there should 
 not be an acquittal, but a conviction might be had for larceny. 
 We have no similar statute in this Commonwealth. 
 
 In the present case, the defendant, who was employed as a 
 servant, was directed by one member of the firm who employed 
 him to take a sum of money from him to another member of 
 the firm. He had the ciistody of the money, but not any legal 
 or separate possession of it. The possession remained in his 
 master. His fraudulent and felonious appropriation of it 
 
112 Phajlen's Ceimijstal Cases. 
 
 was, therefore, larceny, and not embezzlement. Common- 
 wealth V. O'Malley, 97 Mass., 584. Commonwealth v. Hays, 
 14 Gray, 62. People v. Call., 1 Denio, 120. United States v. 
 Clesn, 4 "Wash., C. C, 702. 
 
 In People v. Hennessey, 15 "Wend., 147, cited for the Com- 
 monwealth, the money embezzled by the defendant, had never 
 come into the possession of his master. And in People v. 
 Dalton, 15 "Wend., 581, the possession of the defendant was 
 that of a bailee. 
 
 Exceptions sustained. 
 
 Chaeles F. Goodhue v. The People. 
 (94 111.37.) 
 
 Embezzlement— J UKiSDiCTiON. — Upon the making of an order chang- 
 ing the venue of a criminal case, the jurisdiction of the court wherein such 
 order is made ceases, and that of the court to which the case is sent attach- 
 es, by operation of law, and the jurisdiction of the latter court does not 
 depend upon the ministerial act of the clerk awarding the change, and it 
 is not defeated by his neglect to transmit the original indictment or pa- 
 pers. 
 
 "Where a change of venue is awarded, if the clerk of the court fails or 
 refuses to transmit the papers, with an authenticated transcript of the rec- 
 ord, the court to which the venue is changed, and not the court awarding 
 the change, is the forum to which application must be made to compel a 
 performance of that duty. ' 
 
 While a party indicted for crime, upon a change of venue has a right to 
 demand that he shall not be put upon trial until the original indictment 
 is placed on file in the court to which the venue is changed, yet the failure 
 to transmit the same is but an irregularity, which he waives by going to 
 
Chaeles F. Goodhue v. The People. 113 
 
 trial without objecting on tliat account. The failure to transmit the orig- 
 inal papers is only cause for a postponement of the trial, but no ground 
 for a dismissal for want of jurisdiction. 
 
 An indictment against a county treasurer for embezzlement, which charg- 
 es that the defendant, on, etc., then and there being county treasurer of 
 said county, duly elected in pursuance of law to said office of public trust 
 in said state, did feloniously and fraudulently embezzle a large sum of 
 money, to-wit, the sum of $4,508.37, then and there in possession of such 
 office, by virtue of his said office, contrary, etc., is sufficient even on mo- 
 tion to quash. 
 
 On an indictment charging the defendant with the embezzlement of 
 money only, the admission of evidence showing the larceny or embezzle- 
 of county orders is error. 
 
 If two or more offenses form part of one transaction, and are such in 
 their nature that defendant may be guilty of both, the prosecutor will not, 
 as a general rule, be put to an election, but may proceed under one indict- 
 ment for the several offences, though they be felonies. The right of de- 
 manding an election, and the limitation of the prosecution to one offense, 
 is confined to charges which are actually distinct from each other and do 
 not form part of one and the same transaction. 
 
 In misdemeanors, within the discretion of the court, the prosecutor may 
 be required to confine the evidence to one offense ; or, when evidence is 
 given of two or more offences, may be required to elect one charge to be 
 submitted to the jury ; but in case of felony it is the right of the accused if 
 he demand it, except when the offences charged are all parts of the same 
 transaction, that he be not put upon trial at the same time for more than 
 one offence. 
 
 On the trial of an indictment of acounty treasurer for the embezzlement of 
 money in his hands as an officer, proof was given tending to charge the 
 defendant as to at least three different transactions occurring at different 
 times. On the close of the evidence for the people, the defendant moved 
 the court to put the prosecution to their election as to which act of embez- 
 zlement they would claim a conviction, and further moved the court to 
 limit the prosecution to some one act of embezzlement; which the court 
 refused to do: Held, that the court erred in overruling such motions. 
 
 Where an indictment charges that an officer did actually embezzle, but 
 does not charge that he took or secreted with intent to embezzle, which 
 is made a distinct offence, it is error to instruct the jury to convict, if it 
 be sufficiently shown that the accused did certain fraudulent acts with in- 
 tent to embezzle. 
 
 Wliere it is made to appear that a defendant has been put to disadvantage 
 from a failure to deliver to him in due time a correct list of the jurors com- 
 posing the panel, as by statute required, or to give him a fair opportunity 
 to prepare for trial, his conviction ought to be set aside; but a now trial 
 should not be granted for every little inacuracy that may occur in this re- 
 gard, which works no injury to the accused. 
 
 On the trial of a county treasurer for embezzlement, the recitals of mis- 
 conduct on tlie part of the accused, in connection with the order of remov- 
 
114 Fhalbn's Ckiminal Cases. 
 
 alof the accused from office anJ the appointment of his successor, con. 
 taiaed in the record of the proceedings of the county board, ought not to 
 be given to the jury. Such recitals prove nothing. On such trial the tax 
 warrant for the collection of taxes is not proper evidence for the purpose 
 of showing the amount of tax to be charged against him, and is calculat- 
 ed to mislead the jury. 
 
 Writ of Error to the Circuit Court of Winnebago county. 
 
 Th.e Hon. John Y. Eustace, Judge, presiding. 
 
 This was an indictment against Charles F. Groodhue, for the 
 crime of embezzlement, found imder section 80 of the Crimin- 
 al Code, which is as follows : " If any state, county, township, 
 city, town, village, or other officer elected or appointed under 
 the constitution or laws of this State, or any clerk, agent, ser- 
 vant or employee of any siich officer, embezzles or fraudulently 
 ■converts to his own use, or fraudulently takes or secretes with 
 intent so to do, any money, bonds, mortgages, coupons, bank 
 bills, notes, warrants, orders, funds or securities, books of rec- 
 ord or of accounts, or other property belonging to or in the pos- 
 session of the State, or such county, township, city, town or 
 village, or in possession of such officer by virtue of his office, 
 he shall be imprisoned in the penitentiary not less than one 
 nor more than fifteen years. " Kev. Stat. 1874, 363. 
 
 The following is the substance of the charging part of the 
 several counts: 
 
 1. That Charles F. Goodhue, late of the county of Stephen- 
 son, on the 16th day of October, in the year of our Lord one 
 thousand eight hundred and seventy-eight, in said county of 
 Stephenson, in the State of Illinois aforesaid, then and there 
 being county treasurer of said county of Stephenson, duly elect- 
 ed in pursuance of the laws of said State of Illinois to said of- 
 fice of public trust in said State, did feloniously and fraudu- 
 lently embezzle a large sum of money, to wit, the saiu of $4,- 
 508.37, then and there in possession of such officer by virtue 
 of his said office, contrary, etc. 
 
 2. That the said Charles F. Goodhue, late of the county of 
 Stephenson, aforesaid, on the said 16th day of October, of the 
 year of our Lord one thousand eight hundred and seventy-eight, 
 
Ohables F. Goodhue v. The People. 115 
 
 in tlie county of Stephenson and State of Illinois, aforesaid, 
 then and there being county treasurer of said county of Steph- 
 enson, duly elected in pursuance of the laws of said State of 
 Illinois to said office of public trust in said State, did felonious- 
 ly and fraudulently embezzle a large sum of money, to wit, the 
 sum of $4,508.37 of the value of $4,508.37, then and there in 
 the possession of such officer, him, the said Charles F. Good- 
 hue, by virtue of his said, the said Charles F. Goodhue's office, 
 contrary, etc. 
 
 3. That the said Charles F. Goodhue was duly elected to the 
 office of county treasurer of the said Stephenson county in No- 
 vember, in the year of our Lord one thousand eight hundred 
 and seventy-seven, for the term of two years, commencing on the 
 j&rst Monday in December, in the year of our Lord one thousand 
 eight hundred and seventy-seven. That the said Charles F. 
 Goodhue aforesaid, to wit, on the said first Monday in Decem- 
 ber, in the year of our Lord one thousand eight hundred and 
 seventy-seven, the same being the third day of December, in 
 the year of our Lord one thousand eight hundred and seventy- 
 seven, duly qualified and entered upon the discharge of the 
 duties of his said office as county treasurer of said Stephenson 
 county, and continued to hold and occupy said office, and dis- 
 charge the duties thereof, from the said third day of December, 
 in the year of our Lord one thousand eight hundred and seven- 
 ty seven, until the 16th day of October, in the year of our 
 Lord one thousand eight hundred and seventy-eight, when he 
 was removed from said office by the board of supervisors of 
 said Stephenson county, the said board then and there having 
 lawful power so to do, and said Charles F. Goodhue, as such 
 officer as aforesaid, was then and there succeeded in said office 
 by one "William "W. Hutchinson, who was then and there duly 
 appointed and qualified to fill the vacancy thereof. That 
 while said Charles F. Goodhue was acting as the county treas- 
 urer of said Stephenson county, as aforesaid, he, the said 
 Charles F. Goodhue, then and there received, collected and took 
 into his possession as such officer, by virtue of his said office, 
 a large siim of money to wit, the sum of $41,199.35, of the 
 value of $41,199.35, and that the said Charles F. Goodhue, of 
 the moneys by him so collected by virtue of his said office, 
 
116 Phalen's Ceiminal Cases. 
 
 then and there in his possession as such office, did, at the coun- 
 ty of Stephenson aforesaid, on the said 16th day of October, in 
 the year of our Lord one thousand eight hundred and seventy- 
 eight, feloniously and fraudulently embezzle the sum of$4:,508.- 
 37, contrary, etc. 
 
 The defendant moved to quash the indictment, on the follow- 
 ing grounds: Irregularity in forming grand jury; vagueness 
 of the indictment ; that the several counts purport to be for the 
 same offence; that the several counts plead the evidence; that 
 the several counts charge no ofEence; — which motion the court 
 overruled. 
 
 Mr. J. A. Grain, and Mr. E. B. Sumner, for the plaintiff in 
 error : 
 
 1. The indictment is insufficient. The averment that the 
 defendant did embezzle, is the averment of a legal conclusion. 
 
 As is stated in Kribs v. The People, 81 111. 600, the indict- 
 ment must set out the act of embezzlement. Embezzlement 
 may be consummated by a variety of acts. The pleader is not 
 allowed to give construction to act, or aver a conclusion, but 
 must set out the acts themselves, so that the court can judicially 
 see that those acts constitute a crime. Arch. C. P. P. p. 85, 
 Waterman's ed., note 1; Hale P. 0. vol. 2, pp, 183, 184; Haw- 
 kins P. 0. p. 310 § 37; Archibald P. P. p. 86, note 1. 
 
 " The indictment must contain a complete description of 
 such facts and circumstances as will constitute a crime. " The 
 indictment should have averred some manner of the embezzle- 
 ment, as that he converted the money to his own use. "Did em- 
 bezzle, " is like the averment, " did unlawfully resist, " which, in 
 Lamberton v. The People, 11 Ohio, 282, was held to be the 
 averment of a legal conclusion, and not of an act; or like the 
 averment " did attempt to maim," which was held to be a state- 
 ment of a legal conclusion, because maiming could be effected 
 by a variety of acts, and this general averment did not name any 
 one act. Com. v. Clark, 6 Grattan, 675. 
 
 Section 82, Rev. Stat. 1874, p. 360, does not help the plead- 
 er in this case, for, while that section does provide that where 
 the property of " any person, bank, incorijorated company or 
 
Chaeles F. Goodhue v. The People. 117 
 
 co-partnersMps " shall have been embezzled, it shall be suffici- 
 ent to allege generally " an embezzlement, " — it is only in such 
 case where the property is laid in some one of these specified 
 owners, if properly even then, that the conclusion of law can 
 be substituted for the acts themselves. 
 
 2. The indictment does not name any person as the party in- 
 jured, or state .that the property embezzled belonged to any one. 
 
 " The prosecutor or party injured, or any other person nam- 
 ed in the indictment, if known, must be described with certain- 
 ty; if an individual, he must be described by his christian or 
 surname ; if a corporation, by their name of incorporation. '' 
 Pomeroy's Archibald, 245. 
 
 "The object of setting out the name of the party injured is 
 to identify the particular fact or transaction on which the in- 
 dictment has been founded, so that the accused may have the 
 benefit on acquittal or conviction, if accused a second time. " 
 Pomeroy's Archibald, 245, note 2 ; ibid. 250, note 1 ; "Wills v. 
 The People, 1 Scam. 399; State v. Irwin, 5 Blackf. 343. 
 
 Section 74, Rev. Stat. 1874, p. 360, provides that any person 
 may be guilty of embezzlement and larceny if he shall fraudu- 
 lently appropriate any ^^ property delivered to him. " An in- 
 dictment would not be good averring this fact and no more ; it 
 should aver that such property delivered to him belonged to 
 .some person, and that there was, in reference to it, some per- 
 son injured. 
 
 In an indictment for embezzlement, " unless the pleader is 
 relieved from this exactness by a special statute, the goods and 
 ownership must be set out with the same completeness as in 
 larceny. " 2 Wharton on Grim. Law, (7th ed.) § 1941. 
 
 See, also, Thompson v. The People, 24 111. 60, as to an in- 
 dictment under the statute in respect to obtaining goods, etc., 
 under false pretences. 
 
 3. The property alleged to have been embezzled is not suf" 
 ficiently described. 
 
 Section 82, Eev. Stat. 1874, p. 360 provides that property 
 embezzled need not be particularly described, provided it be the 
 property of " any person, bank, incorporated company or co- 
 partnership. " l^ow, in this indictment the property embez- 
 zled is not averred as belonging to any such person, bank, cor- 
 
118 Phalen's Criminal Cases. 
 
 poration or co-partnership; therefore, as the property embez- 
 zled is not embraced in this section by the terms of the aver- 
 ment, it must be described as required in an indictment for 
 embezzlement without such a section. This principle is ex- 
 pressly decided in Com. v. "Wyman, 8 Mete. 254. 
 
 4. As to the evidence: In one of the counts of the indict- 
 ment there is an averment that the defendant was county treas- 
 urer, and embezzled funds, and, besides, the unnecessary aver- 
 ment that he was removed from his office by the board of su- 
 pervisors because he was found to be a defaulter. This was 
 purely surplussage. No averment upon that subject was nec- 
 essary. The offence was complete without it. There are two 
 ways in which defendant might take advantage of this : first,, 
 by moving, before trial, to strike out, and second, by objecting 
 to evidence to sustain it. 
 
 Defendant did object, but, notwithstanding, the prosecution 
 was permitted to introduce the records of the board of super- 
 visors, not under oath, and res inter alias acta, which, in sub- 
 stance, declared the defendant guilty. This testimony under 
 no circumstances could have been lawful testimony and under 
 such circumstances it is the duty of the court to grant a new 
 trial. Corbley v. Wilson, 71 111. 211; Whitaker v. "Wheeler,. 
 44 id. 441 ; Marshall v. Adams, 11 id. 41 ; Louisville & ISTash- 
 ville Kailroad Co. v. Burns, 13 Bush (Ky.) 479. 
 
 Properly sjjeaking, says Waterman in his ISTew Trials, p. 613, 
 the reception of illegal evidence should vitiate the verdict with- 
 out inquiry as to its probable effect in any given ease; its in- 
 evitable tendency is to mislead, and the extent of the mischief 
 it may have done can not always be calculated or guessed at. 
 . . . When illegal testimony is such as to be in gross viola- 
 tion of well settled principles, which govern proof, clearly giv- 
 ing the party who offered it an unlawful advantage, its admis- 
 sion has been held per se a ground for a new trial, whether the 
 jury were directed to disregard it or not. Wicks v. Lowerre, 
 8 Barb. 536. 
 
 5. The prosecution should have been put to their election as- 
 to which count of the indictment they would claim conviction 
 upon. 
 
 The several counts of the indictment purported to be for one- 
 
Chaelfs F. Goodhue v. The Teople. 119 
 
 and the same transaction, to wit: embezzling $4,508.37, in 
 defendant's possession as county treasurer, l^othing on its 
 face apprised defendant that he was to be tried for distinct fel- 
 onies. 
 
 In Warnock v. State, 7 Cold. 508, where distinct offences 
 were sought to be proved, and evidence offered of the same with- 
 out objection, and the court refused to put the prosecution to 
 its election, the Supreme Court reversed the judgment for that 
 reason. 1 Wharton on Grim. Law (7 ed.) 423. 
 
 If it be not proper to include seperate and distinct felonies 
 in different counts of the same indictment, certainly when the 
 several counts of an indictment purj)ort to be for the same of- 
 fence, to permit the prosecution, under such indictment, to give 
 proof.of, and insist on a conviction for several and distinct of- 
 fences, violates the very principle laid down by this court. 
 Lyons v. People, 68 111. 275. 
 
 6. The Winnebago circuit court did not have jurisdiction. 
 The certificate of the clerk of Stephenson county is wholly in- 
 sufficient, and no better than none. It not only does not cer- 
 tify what was contained in the record during the pendency of 
 proceedings in Stephenson county, but it fails to identify the 
 indictment or transcript of record, or any of the other papers, 
 as the originals, or as those sent to Winnebago county. It is 
 no better than no certificate ; yet it imports verity, and the court 
 can not make another certificate for the clerk. 
 
 The section of the statute which provides that objection to 
 proceedings in obtaining changes of venue, or the right of the 
 court to which the change is made to try the case and pronounce 
 judgment, shall be considered as waived after trial and verdict, 
 has no application. 
 
 Mr. James S. Cochran, States Attorney, for the People: 
 
 1. At common law, an indictment for embezzlement was re- 
 quired to set out each specific act of embezzlement, and the 
 same rule applies under our statutes which makes embezzlement 
 larceny. Kribs v. People, 81 111. 600. But the statute under 
 which the indictment was drawn does not declare that the per- 
 son guilty of embezzlement shall be deemed guilty of a larceny. 
 
 2. Every indictment shall be deemed sufficiently technical 
 and correct which states the offence in the language of the stat- 
 
120 Phalen's Ceiminal Casi';s. 
 
 Tite, or so plainly that the nature of the offence may be easily 
 •understood by the jury. Eev. Stat. 1874, p. 408 § 408 ; Canady v. 
 People, 17 111.158; Morton v. People, 47 id. 468; Mapes v. 
 People, 69 id. 523; McCutcheon v. People, id. 601; People v. 
 McKinney, 10 Mich. 54. 
 
 3. It is also objected that the indictment does not state the 
 name of any party injured or to whom the money belonged. 
 The statute makes it criminal for any officer te embezzle money 
 " in the possession of such officer ly virtue of his office. " See 
 State V. Mason, 62 Maine, 106; State v. Orwig, 24 Iowa, 102; 
 Brown v. State, 18 Ohio St. 506; People v. McKinney, 10 Mich, 
 54; State v. Smith, 13 Kan. 274. 
 
 4. If copies, and not originals, are sent on change of venue, 
 objection must be made at the earliest period, or the irregular- 
 ity will be waived. Holliday v. People, 4.Gilm. Ill ; Granger 
 V. Warrington, 3 id. 299; McKinney v. People, 2 id. 556. 
 
 All objections to the jurisdiction arising from a defective 
 certificate of the j^roceedings are waived by going to trial with- 
 out objection. Hitt v. Allen, 13 id. 79; Perteet v. People, 70 
 id. 172 ; G-ardener v. People, 3 Scam. 87 ; Loper v. State, 3 Hon. 
 (Miss.) 429. 
 
 5. As to the right of the defendant to compel the prosecu- 
 tion to elect as to what charge it would urge for a conviction, 
 counsel cited 1 Wharton. Grim. Law, sec. 423 ; People v. Mc- 
 Kinney, 10 Mich. 95 ; Leonard et al. v. People, 81 111. 308 ; 
 People V. Davis, 56 IS". Y. 100; George v. State, 39 Miss. 590; 
 Garatt v. State, 25 Ohio St. 162; Bish. Grim. Proced. 425, 
 454 and 459. 
 
 Mr. Justice Dickey delivered the opinion of the Court: 
 This is an indictment against plaintiff in error, under section 
 80 of the Criminal Code, found by a grand jury of the county 
 of Stephenson at the December term, 1878. The indictment 
 consists of three counts, in each of which plaintiff in error was 
 charged with the embezzlement of $4,508.37, of money in his 
 possession by Anrtue of his office as county treasurer. 
 
 The circuit court of Stephenson county overruled a motion 
 to quash this indictment, and a plea of not guilty being inter- 
 posed, the venue was changed to the county of Winnebago by 
 order of the court, on the application of the accused. 
 
Charles F. Goodhue v. The People. 121 
 
 A transcriijt of the record of tlie proeccdings in the circuit 
 court of Stephenson county, embracing a copy of the indict- 
 ment, was transmitted by the clerk of that court to the clerk of 
 the circuit court of Winnebago county, and duly filed in his of- 
 fice on the 2d day of January, 1879. This transcript was au- 
 thenticated by the certificate of the clerk of the circuit court of 
 Stephenson county, under the seal of that court, as " a true, 
 perfect and complete copy of the record in a certain cause late- 
 ly pending in the circuit court of the county of Stephenson, 
 wherein the People is plaintiff and Charles F. Groodhue is de- 
 fendant. " 
 
 At the January term of the circuit court of Winnebago coun- 
 ty a trial was had, resulting in a verdict of guilty, fixing the 
 term of imprisonment in the penitentiary at four years ; and in 
 a further finding of the jury (as the verdict reads) " from the 
 evidence in our hands, " that the defendant embezzled the sum 
 of $3,812. 
 
 Motions for new trial and in arrest were made and overrul- 
 ed, and sentence and judgment were entered upon the verdict. 
 
 It is insisted by plaintiff in error that the circuit court of 
 Winnebago county did not acquire and did not have jurisdic- 
 tion to try this case, because the original indictment was not 
 before that court as required by law. 
 
 We can not sustain this position. On the making of the 
 order changing the venue by the circuit court of the county of 
 Stephenson the jurisdiction of the court ceased, and that of the 
 circuit court of Winnebago attached, by operation of law. Had 
 the clerk of the court of Stephenson county refused to transmit 
 the papers with an authenticated transcript of the record, the 
 circuit court of the county of Winnebago, and not that of 
 Stephenson county, would have been the forum to which appli- 
 cation could be made to compel the performance of that duty. 
 The jurisdiction of the court in the county of Winnebago in 
 no sense or degree depended upon the ministerial act of the 
 clerk of the circuit court of Stephenson county. The failure 
 of the clerk to transmit the original papers forming part of the 
 record in the case was a grave irregularity. The accused had 
 a right to demand that he should not be put upon trial until 
 such original papers were placed on file in'the circuit court of 
 
122 Phalen's Ckiminal Cases. 
 
 Winnebago. It is, however, such an irregularity as may be 
 waived by the accused. In this case it was waived. The ac- 
 cused, when put upon trial, did not object on that ground to 
 going on with the trial. It is true he objected to going to trial 
 upon the ground of the absence of a witness, but did not call 
 the attention of the court to the absence of the original indict- 
 ment. Had he so done it would have shown good ground for 
 postponing the trial, but not ground for dismissing the cause 
 for want of jurisdiction. JSTot having presented that ground 
 upon his application for a continuance, he could not, after trial, 
 be heard to complain of the irregularity. 
 
 It is objected that the indictment, on its face is bad. A 
 majority of the court are of the opinion that the indictment is 
 sufficient. 
 
 In the course of the trial evidence was produced tending to 
 prove that certain county orders were ordered to be issued, and 
 that the county clerk, having prepared and signed the orders 
 (which were prepared on blanks for that purpose, contained in 
 a book,) left the book containing the orders, so signed by the 
 clerk, in the treasurer's office, for the purpose of having the 
 treasurer countersign the orders; and that plaintiff in error, 
 having countersigned these orders as treasurer, cut a part of 
 them out of the book, amounting to some $2,200, and took 
 them to a bank and sold them for about that amount of money, 
 and failed to charge himself with that amount in his official 
 accounts, but fraudulently converted the same to his own use. 
 
 This evidence was admitted by the court against the objec- 
 tions of the accused, and after all the evidence on that subject 
 was given, a motion was made to exclude the same as inadmis- 
 sible under this indictment, and this motion was denied. This, 
 we hold, was error. The indictment charged the embezzlement 
 of money, and did not charge the embezzlement of county or- 
 ders. If this disposition of the county orders was made crim- 
 inally, it constituted either the larceny or the embezzlement of 
 the county orders, and not money. The county treasurer as 
 such had no authority to sell these orders for the county and 
 receive the proceeds as the money of the county. The issue 
 and sale of county orders is neither of them, embraced among 
 the official duties of the county treasurer, nor is there any 
 
ClIAELES F. GrOODHUE V. ThE PeOPLE. 123 
 
 proof whatever tending to show that the county board made 
 him in any way the agent of the county to issue or sell these 
 orders for the county. The order of the county board autho- 
 rized the county clerk to issue them, and the law required the 
 orders to be countersigned by the treasurer. 
 
 It is plain that if a crime was committed by the accused in 
 this transaction in relation to what are called the " jail orders", 
 as presented by the proofs, it was not embezzlement of the 
 proceeds of the orders, but the embezzlement or larceny of the 
 orders themselves. If a man steal a horse and sell him to a 
 stranger, he may be convicted of stealing the horse, but not of 
 stealing the money received as the price of the stolen horse. 
 
 The county orders were in the lawful possession of the coun- 
 ty clerk, although placed for the purpose of being countersign- 
 ed in the room where the county treasurer kept his ofSce. 
 They were in process of preparation for issue, but seem never 
 to have been issued by the clerk. 
 
 Upon the proofs, this transaction did not fall within the de- 
 scription in the indictment. The evidence relating thereto 
 oiight to have been excluded from the jury, — and the 16th in- 
 struction on the subject ought to have been given. 
 
 In the course of the trial evidence was given tending to 
 charge the plaintiff as to at least three different transactions, 
 each of which the court charged the jury was, if established, a 
 complete crime, for which they must convict. One related to 
 the witholding some $540.31 from the city treasurer of Freeport, 
 and occurred in the month of July, 1878. Another transac- 
 tion had relation to a false receipt given in the month of May, 
 1878, to one Potter, saying defendant had paid him $383 for 
 printing, when in fact biit $283 was paid, and to the entry of 
 credit on the collector's books of a credit for the former amount. 
 And another tranaction related to the improper conversion or 
 use of certain county orders, called jail orders, which is said to 
 have occurred in the month of September, 1878. 
 
 By one instruction (the 9th) the jury were told that they must 
 convict defendant if he held in his hands, as such county treas- 
 urer and by virtue of his office, the sum of $7,017.14 belonging 
 to the city of Freeport, and while he so held such funds the 
 treasurer of that city, as such, demanded of defendant, as 
 
124 Phalkn's CitiMiNAL Oases. 
 
 sucli county treasurer, all the money in his hands belonging to 
 said city ; and that defendant , then and there fraudulently told 
 such city treasurer that $6,476.83 was all of such money, when 
 in fact there was the further sum of $54.31 in the hands of de- 
 fendant belonging to such city ; and defendant then and there 
 fi-audulently withheld from said city treasurer the latter sum, 
 with intent to defraud the said city of that sum, and if defend- 
 ant fraudulently converted the same to his own use " then the 
 jury shall find defendant guilty," etc. 
 
 By another instruction (the &th) the jury ai'e directed to 
 convict the defendant if, while the county owed to one Potter 
 only the sum of $283 for printing a delinquent list, defendant, 
 as county treasurer, paid that sum and no more to Potter for 
 such services, and then and there fraudulently obtained from 
 Potter a receipt for the sum of $383, being $100 more than the 
 actual amount paid to Potter; and if defendant then and there 
 knowingly, falsely and fraudulently gave himself credit on that 
 account on his books as county collector with the sum of $383, 
 with intent fraudulently to convert to his own use the $100 
 which was the excess of the receipt and of the credit upon the 
 books over and above the amount actually paid to Potter. 
 
 By another instruction the (16th) the jury were directed to 
 find the defendant guilty if certain jail orders, numbered 208, 
 209, 210, 211 and 212, were issued by the county, and, in pur- 
 suance of some arrangement between the officers of the county 
 and a certain bank, certain money, the avails of such orders, 
 came into defendant's hands as county treasurer, and if defend- 
 ant fraudulently failed to charge himself therewith on the treas- 
 urer's books, and embezzled the same or any part thereof. 
 
 The transactions to which these instructions respectively re- 
 lated are distinct and separate in so far as the proofs tend to 
 show. 
 
 After the evidence was closed, the accused, by his counsel, 
 applied to the court to put the prosecution to their election as to 
 which act of embezzlement they would claim a conviction, and 
 moved the court to limit the prosecution to some one act of 
 embezzlement. This the court refused to do, but gave the sev- 
 eral instructions mentioned supra. 
 
 If two or more offences form part of one transaction, and are 
 
Charles F. Goodhue v. The People. 125 
 
 Buch. in nature that a defendant may be guilty of both, the pros- 
 ecution will not as a general rule be put to an election, but may 
 proceed under one indictment for the several offences, though 
 they be felonies. The right of demanding an election and the 
 limitation of the prosecution to one offence, is confined to 
 charges which are actually distinct from each other and do not 
 form parts of one and the same transaction. In misdemeanors 
 the prosecution may, in the discretion of the court trying the 
 case, be required to confine the evidence to one offence, or where 
 evidence is given of two or more offences, may be required to 
 elect one charge to be submitted to the jury, but in case of fel- 
 ony it is the right of the accused, if he demand it, that he be 
 not put upon trial at the same time for more than one offence, 
 except in cases where the several offences are respectively parts 
 of the same transaction. 1 Wharton Crim. Law, § 423; 1 
 Bishop Crim. Pr. 459. This doctrine is recognized by this 
 court in Lyons v. The People, 68 111. 275, and is believed to ac- 
 cord with the practice in this State from its earliest days. It 
 was therefore error, in this case, to refuse the application of the 
 accused for the benefit of this rule. 
 
 Again the statute in question defines two offences, — one, the 
 actual embezzlement of public funds, and the other, the taking 
 or secreting of public moneys with intention to embezzle, and 
 does not charge that he took or secreted with intent to embezzle. 
 In several of the instructions given by the court this distinction 
 is not observed, and the jury were directed to convict if it be 
 shown sufficiently that the accused did certain fraudulent acts 
 with intent to embezzle. This is error. 
 
 We think, also, that the recitals of misconduct on the part 
 of the accused contained in the records of the proceedings of 
 the county board, in connection with the removal of the accus- 
 ed from office and the appointment of his successor, ought not 
 to have been given to the jury, — ^certainly not without definite 
 caution to the jury that they must not be taken as proof in the 
 slightest of the truth of the recital. It is said, for the prose- 
 cution, these recitals were necessary to show the validity of the 
 order of removal. We do not think so. The statute gives the 
 power of removal on the happening of certain contingencies. 
 The statute does not require such contingencies to be stat- 
 
126 Phalen's Ceiminal Cases. 
 
 ed in the record of the proceedings. Such recitals of the 
 record are not proof that the contingencies occurred, l^or 
 do we perceive, from the statement of the evidence in the ab- 
 stract, that any material lawful purpose could be subserved by 
 proof of his removal from oifice and the appointment of his 
 successor. It is shown that his successor sent the accused a 
 letter demanding that he turn over all the moneys, property, 
 books, etc., belonging to the office of county treasurer, but our 
 attention has not been directed to any proof as to whether the 
 accused did or did not comply with this request, and without 
 this proof the fact that he had a successor is of no significance. 
 
 Again, the tax warrant for the collection of taxes was put in 
 evidence, as it would appear, by way of showing the state of 
 accounts of the treasurer, and in the account presented by the 
 prosecution, the amount of taxes to be collected, as mentioned 
 in the collector's warrant is presented as an item with which 
 the accused should be debited, and this, as it is said, for the 
 purpose of showing the amount of money which actually came 
 to his hands. The tax warrant was not competent proof for the 
 purpose. Such proof, if competent in this case, would charge the 
 accused with embezzlement of any amount of tax which he, from 
 his own fault, failed to collect. In determining the amount 
 which a county collector shall be called upon to account for in 
 his settlement with the state, county and other authorities, this 
 item is a proper debit to head the account, for, if the collector 
 has,from his own fault, failed to collect any given amount in that 
 warrant, he must account for the same in such settlement. Not 
 so in a trial for embezzlement of money actually received and 
 appropriated to his own use. The introduction of this tax list 
 was calculated to mislead rather than enlighten the jury on the 
 issue. An officer may be a very gross defaulter and yet not an 
 embezzler or a thief. In fact, an honest man is liable to become 
 a defaulter from his negligence or for his incompetency. These 
 matters must not be confounded with crime. 
 
 Complaint is made that the list of jurors furnished to the 
 accused was not correct. The list .furnished contained thirty 
 names instead of twenty -four. Six of the inen whose names 
 were so given were of the jurors drawn for the term, but some 
 of them had not been served and others had been excused ; none 
 
Chaeles F. Goodhue v. The People. 127 
 
 of them were at that time on the panel of jurors, and as to one 
 man who was of the panel as composed when the trial began, 
 his name was A. F. Nichols, but he was summoned by the 
 sheriff by the name of Burt Nicholds, and on the list furnished 
 the accused he was put down as " Burt Nicholds." 
 
 The utmost care should be taken to give to every defendant 
 in criminal cases every reasonable opportunity to prepare for 
 trial, and among other things to notify them in due time as to 
 what men constitute the panel oni of which the jurors for his 
 trial are to be called, and whether it is made to appear to the 
 court that a defendant has been put to a disadvantage from a 
 failure in this regard, his conviction ought to be set aside. It 
 is not, however, every little inaccuracy which may occur in 
 this regard for which a trial should be set aside. In this case 
 it seems plain that the accused suffered no injury fi*om the ir- 
 regularity. He could readily see that the list contained thirty 
 names, and might have called the attention of the court to that 
 fact and had the list corrected. 
 
 For the errors indicated, the conviction and judgment must 
 be set aside, and the cause remanded to the circuit court of 
 Winnebago county for a new trial. 
 
 Judgment reversed. 
 
 Scott J. I do not concur in this opinion except so far as it 
 holds the indictment is sufficient. 
 
 Note. — A servant, clerk or agent may be charged with the embezzle- 
 ment of several dlfl'erent suras of money, or articles of security which have 
 been fraudulently converted by him at different times extending through 
 the whole period of his employment, and upon trial the people will not 
 be required to elect as to any particular item. — [Ker v. People, Ante. p. 25. 
 
128 Phalen's Ceimim"al Casks. 
 
 State v. Boody. 
 (53 ISr. H, 610 Sup. Judc. Ct.) 
 
 Embezzlement. — Every municipal corporatioa is necessarily a, publie 
 corporation. All corporations intended as agencies in the administration 
 of civil government, are public as distinguished from private corporations. 
 
 The words "any officer, agent, or servant of any corporation, public or 
 private," includes a selectman or any other town officer, or the general or 
 special agent of any town. 
 
 The indictment, charges that Charles H. Boody, at New 
 Durham, in said county, on the tenth day of March, 1868, be- 
 ing, then and there a public officer and receiver of publie mon- 
 ey, to wit, a selectman of said town of New Durham, did then 
 and there, by virtue of his said office of selectman as aforesaid, 
 have, receive, and take into his possession certain money to 
 a large amount, to wit, to the amount of two hundred and sev- 
 enteen dollars, and of the value of two hundred and seventeen 
 dollars, of the property and moneys of said town of ISTew Dur- 
 ham, the same being public money; and the said Charles H. 
 Boody the said money then and there did embezzle, and fraud- 
 ulently convert to his own use, contrary, etc. To this indict- 
 ment the defendant filed a general demurrer. 
 
 Clark (Attorney General) for the state. 
 
 Briggs & Huse, for the respondent. 
 
 It was claimed, for the defendant 1st. That a selectman was 
 
State v. Boody. 129 
 
 not a public officer and by virtue of his office a receiver of 
 public money. 2. That the indictment did not sufficiently de- 
 scribe the offence, and for that reason was void. 
 
 Foster, J. The 267th chapter of the General Statutes re- 
 lates to " Frauds and Embezzlements," and is so entitled. Its 
 7th section provides for the punishment of " any public officer, 
 being a receiver of public money," vs^ho shall fraudulently con- 
 vert the same to his own use. Its 8th section provides for the 
 punishment of " any officer, agent, or servant of any corpora- 
 tion, public or private, or the clerk, agent, or servant of any 
 person," who shall be guilty of a similar offence. 
 
 The indictment before us is founded upon one of these sec- 
 tions. 
 
 In the Kevised Statutes, from which both sections were tak- 
 en, the former is included in a chapter entitled " Offences 
 against the State." It is chapter 213, section 4, and its terms 
 are substantially the same as those of sec. 7, ch. 257, Gen. Stats. 
 The other sections of the chapter in the Revised Statutes relate 
 to treason and misprision of treason solely. Section 4 would 
 seem, from this connection, to have had special reference to 
 state officers, — that is officers whose duties concern the state at 
 large or the general public (see Dillon Mun. Corp. sec. 33,) 
 and not to officers of municipal corporations. 
 
 The Revised Statutes, unlike the General Statutes, contain 
 no independent chapter or title relating to embezzlements; but 
 they contained the provisions of sec. 8 of ch. 257, Gen. Stats, 
 where they were applied exclusively to officers of banking cor- 
 porations. Eev. Stats., ch. 140, sees. "40, 41. 
 
 Under the Revised Statutes, then, and until the enactment 
 of the General Statutes, it would seem that a selectman could 
 not be punished for embezzlement of town funds, unless, by 
 virtue of the provisions relating to a "receiver of public mon- 
 ey," in the chapter of " Offences against the State " already re- 
 ferred to, where the crimes of treason and embezzlement of 
 public money are alone considered. But, by the terms of the 
 General Statutes, ch. 257, sec. 8, the penalties prescribed for 
 the embezzlement of bank funds, by officers of banks, were ex- 
 tended to "any officer, agent, or servant of any corporation, 
 public or private;" audit would seem that, under this section, 
 9 
 
130 Phalen's Criminal Cases. 
 
 a selectman or any other town officer, or the general or special 
 agent of any town, might be punished for the embezzlement of 
 its funds, and that an indictment found upon that section 
 might be applied to a case like the present. 
 
 Doubtless it was for the purpose of curing this defect in the 
 law that the restricted provisions of sees. 40 and 41, of ch. 140, 
 Rev. Stats., were " made general " by the commissioners in 
 the revision of 1867. See report of the commissioners. 
 
 This application of the statute to the agent or servant of any 
 corporation, public or private, fixes the liability of every town 
 officer who shall embezzle the public funds. It is true that, in 
 common legal parlance, towns are not usually s]_Joken of as 
 corporations, without the prefixed adjective " municipal." 
 They are frequently spoken of as quasi corporations, and, by 
 sec. 1, of ch. 133, Gen. Stats., the provisions of Title XVII., 
 comprehending those ten chapters which are supposed to in- 
 clude all general legislation concerning corporations, do not ap- 
 ply to public municipal corporations, such as towns, cities, and 
 the like. 
 
 But the terms of the statute relating to embezzlements are 
 not restricted nor defined by the application and definitions of 
 the provisions of Title XVII; and, as used in sec. 8, of ch. 258, 
 Gen. Stats., the term " public corporation " may properly be 
 applied to a town. 
 
 Of this there can be no doubt. Every municipal corpora- 
 tion is necessarily a public corporation. "All corporations in- 
 tended as agencies in the administration of civil government, 
 are public as distinguished from private corporations. Thus, 
 an incorporated school district or county, as well as a city, 
 is a public corporation; but the school district or county, 
 properly speaking, is not, while the city is, a municipal cor- 
 poration. All municipal corjjorations are public bodies, creat- 
 ed for civil or political purposes ; but all civil, political, or pub- 
 lic corporations are not, in the proper use of language, munic- 
 ipal corporations." Dillon Mun. Corp. sec. 10. 
 
 In this state, public corporations are understood to include 
 all those which are created for public purposes, and whose 
 property is devoted to the object for which they are created. 
 Such, it is said, are counties, towns, parishes, school districts, 
 
State v. Boody. 131 
 
 &c. Private corporations are those which are created for the 
 immediate advantage of individuals. Sucli, it is said, are in- 
 surance and manufacturing companies,- and such, also, are 
 canals, turnpikes, toll-bridges, and railroads, although the uses 
 of these latter are public. Dartmouth College v. Woodward, 
 1 N. H., 116, 117; Eustis v. Parker, 1 E". li., 275; School 
 District v. Blaisdell, 6 IST. PI., 199; Concord Eailroad v. Gree- 
 ley, 17 ISr. H., 47; Foster v. Lane, 30 IST. H., 305; Petition of 
 Mt. Washington Eoad Co. 35 IST. H., 13i. 
 
 It may not be entirely certain upon which of the two sec- 
 tions, 7 and 8, the public prosecutor relied in framing the 
 indictment. He seems to have incorporated the language of 
 both in the description of the official position of the respondent. 
 He is called a public officer, and also a receiver of public mon- 
 ey, to wit, a selectman ; and he is charged with the embezzle- 
 ment and fraudulent conversion of public money. 
 
 Omitting the superfluous and unnecessary words " and re- 
 ceiver of public money," such an officer is clearly included 
 within the provisions of section 8; and, under that section, 
 with proper averments in the indictment, the respondent would 
 properly be chargeable. 
 
 But it seems more probable that the prosecuting officer in- 
 tended, by the framing of his bill, to charge the respondent 
 under section 7, since he has used, in his description of the of- 
 fender, the terms a " public officer " and a " receiver of public 
 money," — terms that are not employed in section 8, which ap- 
 plies in terms to " any officer, agent, or servant of any corpor- 
 ation, public or private." And we can have little doubt that 
 the later compilers of the statutes, and the legislature of 1867, 
 intended to enlarge the provisions of the Revised Statutes, ch. 
 213, sec. i, by extending them to municipal corporate agents; 
 not confining them to state officers. This is indicated by the 
 collection of see. 7, ch. 257, Gen. Stats., which (while its 
 phraseology is retained without modification) is extracted from 
 the chapter entitled " Offences against the state " in the Bevised 
 Statutes, and where, as we have seen,it is associated with no other 
 subjects than treason and misprision,and incorporated into the 
 chapter entitled " Frauds and Embezzlements," where it be- 
 
132 Piialen's Ceiminal Cases. 
 
 comes associated with kindred subjects, while the remainder 
 of the chapter from which, as section i, it is taken, is re-enact- 
 ed in the General Statutes under the title of " Treason and 
 Misprision/' Gen. Stats, ch. 266. 
 
 If, then, section 7 of ch. 257, Gen. Stats., may be applied, as 
 we think it well may, to the servant or agent of a municipal 
 corporation, the offender and the offence are described in this 
 indictment fully and plainly, substantially and formally. It 
 would be ridiculous to require the state to prove the precise 
 source from which the money taken and converted was deriv- 
 ed. The money in the officer's hands may have come from va- 
 rious sources, and have been so mingled and confused as that 
 the portion thereof embezzled and converted could by no pos- 
 sibility be designated, such fund having no ear mark. 
 
 By the terms of the statute, any public officer, being a re- 
 ceiver of piiblic money, who shall fraudulently convert the 
 same to his own use, shall be punished. 
 
 By the terms of the indictment, the respondent is described 
 as being a public officer and receiver of public money, to wit,, 
 a selectman, &c., and is charged with fraudulently converting 
 to his own use a specified sum, being the property and money 
 of the town, which, as selectman, he had received. 
 
 The word " embezzle '' is need in the indictment, but this 
 may be rejected as surplusage, since it means no more than 
 the ofEence, which is fully described by the use of other terms. 
 See Bour. Law Die. Embezzlement. 
 
 Selectmen are not ex officio receivers of the public money of 
 the town, but they are invested with the functions of a treasur- 
 er upon the failure of the town to elect such an officer. Gen. 
 Stats, ch. 37, sec. 4. So, too by special vote of a town, a select- 
 man may be constituted the agent of the town to receive, as 
 well as to hold and appropriate, the funds of the town (Barn- 
 stead V. Walker, Belknap, December Term, 1872,) and in such 
 a case he would come under the statutory designation of " a 
 public officer, being a receiver of public money." 
 
 Moreover, in certain cases (in one case at least) selectmea 
 are especially constituted receivers of the town's money, as in 
 Gen. Stats, ch. 53, 8, where the collector is required to collect 
 
State v. Boody. 133 
 
 the taxes and pay the same " to the state and county treasurer, 
 <ind to the selectmen or town treasurer." 
 Demurrer overruled. 
 
 NOTB.— In Boi'k V. the People, 91 N. Y., 5, the indictment under which 
 defendant was convicted, after averring in the first count the incorpora- 
 tion of the City of Butfalo, and that during; the time mentioned in the in- 
 dictment, Thomas R. Clinton was comptroller of the city, and as such, held 
 for and on behalf of the city, two hundred unpaid and unsatisfied bonds, 
 known as city and county hall bonds, of the denomination and value of 
 $1,000 each, the "credits, fundj and property " of the city, then charges 
 •that on the first day of October, 1875, at Buffalo, the defendants, with in- 
 tent to defraud the said City of Buffalo, etc., then and there feloniouslyi 
 wickedly and wrongfully did obtain and receive from Thomas R. Clinton, 
 such officer as aforesaid, etc., and did convert to his, said Joseph Bork's 
 own use and dispose of one hundred bonds of the City of Bufialo, . . 
 issued by said City of Buffalo . . &c., of the kind known as city and 
 county hall bonds, in and by each of which bonds the said City of Buffalo 
 promised and agreed to pay the sum of $1,003, with interest thereon, each 
 being dated, . . . and of the denomination and value of $1,000 each, a fur- 
 ther and more particular and accurate description of which is to the jur- 
 ors unknown, . . of the funds, credits and property of said City of Buf- 
 falo, etc., then and there so as aforesaid, held by said Thomas R. Clinton, 
 as such office, . . . offioally for and on behalf of said city, contrary to the 
 form of the statute.'' The second and third counts are found upon the 
 same transaction set forth in the first count. It was shown on the trial that 
 Bork was treasurer of the City of Buffalo, from July 1, 1872, to January 1, 
 1876, having been elected to that office for two successive terms of two 
 years each. In December, 1875, it was discovered that Bork was a default- 
 «r to the city, and an investigation was instituted, in the course of which 
 it was ascertained that his defalcations amounted to about the sum of 
 $475,000. When the defalcations commenced, does not definitely appear. 
 The money was to a great extent turned over or deposited by him with the 
 firm of Lyon & Co., a firm engaged in real estate and broking business in 
 the City of Buffalo, of which Bork was a member, and was used in their 
 business. The firm of Lyon & Co. had no capital, and when the defalca- 
 tion of Bork was discovered, it was found to bs insolvent. The issue of 
 the bonds w.is authorized by an act of the legislature, chap. 680 Laws of 
 1871, and on the 3-3d day of August, 1875, the mayor and comptroller were, 
 by resolution of the common council, authorized to issue said bonds. The 
 bonds were duly executed by the mayor and comptroller, under the seal of 
 said city and dep.isited with the comptroller, who on or about the 30th day 
 of September,1875, delivered to Bork seventy-five thousand of the bonds,to be 
 sold by him on account of the city. Bork sent them througli a bank in Butfalo 
 to a bank in the City of New .York, subject to his order. He went to New 
 York the same day, received the binds from the bank thsre and put them 
 
134 Piialen's Ceiminal Cases. 
 
 into the hands of one Moran, a broker, with dlrestioas to sell the bonds 
 and credit the proceeds of twelve of them to Lyon & Co., on their account 
 with Moran, and to deposit the proceeds of sale of the remaining sixty- 
 three bonds in the Bank of New York, to the credit of the Bank of Com- 
 merce of Buffalo, one of the deposit banks designated by the common 
 council of Buffalo for the deposit of the city funds. The bonds were 
 sold by Moran, who deposited the proceeds as directed, the Bank of Com- 
 merce credited the amount to Bork as treasurer. Bork made no entry in 
 the treasurer's book of the sale of the bonds. He neither charged himself 
 with the bonds nor credited the city with the proceeds. The credit in the 
 Bank of Commerce did not disclose the source from which it was derived- 
 
 The above Indictment was found under the act of February 17, 1875, 
 entitled, " An act to provide more effectually for the punishment of pecu- 
 lation and other wrongs affecting public money and rights of property." 
 The first section, is as follows: § 1. "Every person who, with intent to 
 defraud, shall wrongfully obtain, receive, convert, pay out, or dispose of, 
 or who with like intent, by willfully paying, allowing, or auditing, any 
 false or unjust claim, or in any other manner or way whatever shall aid 
 or abet any other in wrongfully obtaining, receiving, converting, paying 
 out, or disposing of any money, funds, credits, or property held or owned 
 by this state, or held or owned officially or otherwise, for or on behalf of 
 any public or governmental interest, by any municipal or other public 
 corporation, board, officer, agency, or agent of any city, county, town, vil. 
 lage, or civil division, sub-division, department, or portion of this state, 
 shall, upon conviction of such offence, be punished," &c. Held. 1. That 
 it was not necessary to prove that the defendant did all the specified acts 
 charged in the indictment, to justify a conviction. 2. That it was suffici- 
 ent to prove that he did any one of the acts constituting the offence. 3. 
 That the delivery of the bonds to a broker in New York, for sale, accom- 
 panied with a direction to credit the firm of Lyon & Co. of which Bork 
 was a member, with the proceeds of the sale, was a clear conversion of the 
 bonds. 4. That the act applies to cases within the general language, 
 whether the offender is an officer, agent or servant, having the custody of 
 the funds charged to have been misappropriated, or owing a special duty 
 in relation thereto, or a private individual having no official or other con- 
 fidential relation to the state, or municipality defrauded by his acts, and 
 that offences punishable by existing laws were not excluded from the pur- 
 view of the act, and that it was competent for the legislature to provide, 
 by an independent statute, that certain acts of embezzlement, punishable 
 by the existing statutes, should constitute a distinct offence, and fix a se- 
 verer punishment than was provided by the general law relating to that 
 class of offences. 5. That the bonds having been received by defendant 
 complete in form and capable of becoming efficient instruments by deliv- 
 ery to a hona fide holder, though unissued, are property within the mean- 
 ing of the statute. 6. That it was not necessary to aver in the indictment, 
 that the bonds were held on behalf of "any public or govermental inter, 
 est." 
 
 In State v. Ring, 29 Minn,, 78, the indictment alleges that the defendant 
 
State v. Boody. 135 
 
 was couaty treasurer uatU a certain date, that on a certain date thereafter 
 A. was appointed and qualified, and bscams the successor of the defend- 
 ant, and has since been county treasurer, and that the defendant, upon A's 
 demand, refused to hand over the money received by him. An appoint- 
 ment was not valid unless there was a vacancy, and there was no specific 
 allegation of a vacancy. Held. 1. That the general allegation that A. 
 was defendants successor was sufiicient, and that the indictment should 
 not be considered as assuming to set forth the several steps by which A. 
 became treasurer. 2. That a demand by defendant's successor in office 
 of •' all the public money, books, accounts, papers, and documents,'' with- 
 out specification of the particular sum demanded, was sufficient and that 
 the extent of the embezzlement, was to be determined by proof of the sum 
 then in defendant's hands. 3. That an allegation charging defendant 
 with the embezzlement of monej' " exceeding the sum of $38,000 "was sus- 
 tained by proof of the embszzlement of $19,140, that although part of the 
 amount received by defendant, was in orders whicli he was allowed, by 
 law to receive, it was not necessary to prove the specific sum received in 
 money. 4. That where certain tax receipts were found in possession of 
 defendant, the stubs corresponding to which had baen turned over to the 
 county auditor, did not show that the tax had not been paid. 5. That it 
 was not necessary to prove defendant's eligibility to the office of county 
 treasurer, unless it was denied. 
 
 In S'ate v. Walton, 63 Maine, 106, the indictment alleged that the de- 
 fendant, on the first day of December, 1871, was a public officer, to wit, 
 the collector of taxes of the town of Alton, and that, by virtue of, and 
 while employed in that office, he received and had in his possession and 
 control, nine hundred dollars of the property of the inhabitants of Alton, 
 and fraudulently embezzled and converted it to his own use; the second 
 count averred that the defendant not being an apprentice, nor below the 
 age of sixteen years, having in his possession and under his care by virtue 
 of his employment, bank bills, the property of said inhabitants, of the 
 value of one thousand dollars, did embezzle and convert the same to his 
 own use, and took and secreted these bills with the intent to embezzle them 
 and coavert them to his own use. The first count concluded with an aver- 
 ment that by such embezzlement the defendant did feloniously steal, take, 
 and carry away the money so in his custody as collector. A demurrer filed 
 by the defendant was overruled. 
 
 The Revised Statutes upon the subject of embezzlement declares : 
 
 I. The embezzlement, or the fraudulent conversion to his own use, or 
 the taking and secreting with that intent of the property of another, in the 
 possession of the offender, or under his care by virtue of his employment, 
 committed without the consent of his employer or master by any officer, 
 clerk, or servant of a person, copartnership, or corporation, the oflender 
 not being an apprentice, nor less than sixteen years of age, is to be deemed 
 larceny. 
 
 II. If a public officer, or an agent, clerk, or servant of a public officer, 
 embezzles or fraudulently converts to his own use, or loans, or permits 
 any person to have or use foFhis own benefit, without the authority of 
 
136 Phalen's Criminal Cases. 
 
 law, any money in his possession or under his control, by virtue of his 
 office or employment by such officer, he shall be deemed guilty of larceny, 
 and be punished accordingly. 
 
 III. The same result follows as to him who, without authority of law 
 and with intent to convert the same to his own use, knowingly receivesi 
 from a public officer, or his clerk, servant, or agent, any money in the pos- 
 session or under the control of such officer by virtue of his office. 
 
 Bahrows, J. who delivered the opinion of the court, among other things 
 said : " More or less of the elements necessary to constitute the crime of 
 larceny, as elsewhere defined, are wanting in each of these cases. But it 
 was clearly competent for the law-making power to extend the definition 
 of the ottenoe, so as to include these cognate oases. This they have done. 
 In order to ascertain whether an indictment can b3 mantained against an 
 oflfender of either of these three classes, one must look to see whether it 
 includes allegations of those facts which the legislature have declared es- 
 sential to constitute the ofli'ence which it purports to charge. Beyond 
 these we are not to seek. It is not for the court to require either allega- 
 tion or proof of that which the legislature have omitted in their definition 
 of the crime, nor to carry that which is descriptive of one cLiss of oifdnces, 
 into either of the others, as an essential requisite." 
 
 "When the legislature is declaring what kind of embezzlement or 
 fraudulent conversion shall be deemed larceny in an officer, agent, clerk, 
 or servant of a person, copartnership, or corporation, it is careful to say 
 that it must be of the property of another, in the possession or under the 
 care of the offender by virtue of his employment, and that it must be 
 shown that it was without the consent of his employer or mastsr,and that the 
 ofl'ender is not an apprentice, nor less than sixteen years old; and these 
 various conditions must appear in the indictment and b3 supported by 
 the proof when a case of this class is under consideration. 
 
 But several of these conditions are omitted in declaring what embezzle- 
 ments or fraudulent c inversions by a public officer shall constitute larceny. 
 As against such an officer, it is sufficient to allege and prove the fraudu- 
 lent conversion to his own use of any money that comes into his posses- 
 sion or under his control by virtue of his office. As against a public offi- 
 cer the allegation of these acts and facts will suffice without going further, 
 and without alleging that the monej' was the prop3rty of another, or 
 whose money it was, or that the offender was not an apprentice, nor less 
 than sixteen years old, or that he appropriated the money without the 
 consent of any of the inhabitants of the municipal corporation whose of- 
 ficer he was. We need not follow the ingenious refinements of the de- 
 fendant's counsel upon the question of the ownership of the money, nor 
 consider here the effect of the decisions that the collector must account 
 for it to the town, according to the terms of his bond, though it has been 
 lost without his fault, and other decisions that seem to imply that in a 
 certain sense, and for certain purposes, he may be considered the owner 
 of it himself. The questions here are: Was he a public officer? Has 
 he fraudulently converted to his own use nnney which he had in his pos- 
 session and under his control, by virtue of his office ? It is set forth in the 
 
State v. Boody. 137 
 
 indictment, that the defendant, being a public officer, to wit, the collector 
 of taxes of the town of Alton, did, by virtue of his ofBce and while em- 
 ployed therein, receive and have in his possession, certain money to a large 
 amount, to wit, the amount of nine hundred dollars, of the property of 
 the town of Alton, and the said money did then and there unlawfully and 
 fraudulently embezzle and convert to his own use, and so did steal, take 
 and carry away the same. The defendant's demurrer admits the facts 
 alleged, and his counsel might as well attempt to argue that there was no 
 larceny, because in the very nature of the case, there was no actual taking 
 and carrying away of the money from the possession of the inhabitants of 
 Alton, as because it was not, perhaps, to ffl technical intents and pur- 
 poses, their property, before it had been paid in to their treasurer. It is 
 not necessary for us to decide whether it was or not. It may have been 
 precisely because of technical diflSculties in determining to whom money 
 thus situated belongs, that the legislature omitted to require it. It is 
 guarded by this statute because to whomsoever it belonged, it came to this 
 defendant's possession, and into his control, by virtue of his office when 
 thus received, this statute makes the fraudulent appropriation of it to his 
 own use, in violation of his ofBcial oath, tantamount to larceny, and pun- 
 ishable as such, though there is no felonious taking and asportation from 
 the possession of the owner, and though the fraudulent official and his 
 sureties may be held bound by his contract with the town to account for it 
 Tinder circumstances when an ordinary bailee would be excused. If nec- 
 essary, the allegation as to the ownership of the money, might be treated 
 as surplusage. It was the fraudulent breach of official duty and trust, 
 ■which but for this statute, could not be held to amount to larceny, the 
 legislature aimed to punish. The collectors of taxes are public officers 
 there can be no doubt. They are specially mentioned among those that 
 are to be chosen at the annual town-meetings in pursuance of R. S. c 3, § 
 10. Even in the absence of such special statutory recognition, they have 
 been so regarded, and held liable to the penal provisions of statutes of like 
 character with that under which this indictment is found." 
 
 "In the case before us the defendant was a public officer. He admits 
 by the demurrer the fraudulent conversion to his own use of money which 
 he had in his possession and uader his control, by virtue of his office. 
 The demurrer can not be sustained." 
 
138 Phalen's Criminal Cases. 
 
 Jules Lowenthal v. The State. 
 (33 Ala., 589.) 
 
 Embezzlement. — The embezzle statutes provide punishment for every 
 case of embezzlement of the property of anotlier, which has come into the 
 possession of a clerk or agent by virtue of his employment. 
 
 The fact that the property first came to the possession of the employer, 
 and that the clerk or agent converting it is guilty of larceny at common 
 law, does not take the case out of the statute. 
 
 The indictment was as follows : 
 
 The grand jury of said county charge, that before the finding 
 of this indictment, Jules Lowenthal, being agent or clerk of 
 Henry^Sengstag (the said Jules not being an apprentice, or un- 
 der the age of eighteen years) embezzled, or fraudulently con- 
 verted to his own use, money to about the amount of $1800, 
 which came into his possession by virtue of his employment, 
 against the peace and dignity of the State of Alabama. 
 
 The state offered in evidence a certain bill of exchange 
 dated New York, May 4th, 1857, purporting to be drawn by 
 Samuel B. Matthews, in favor of Mad. Diaden on Kivers, 
 Battle & Co., of Mobile, for $1800, payable on the first day of 
 January next after date, which bill was shown to have been 
 signed by Samuel B. Matthews. The court allowed it to go 
 to the jury, to which allowance prisoner's counsel excepted. 
 
 The State introduced the book-keeper of Rivers, Battle & 
 Co., who testified that the prisoner called at the ofiice of Riv- 
 
LOWENTHAL V. TlIE State. 139 
 
 ers, Battle & Co., ou the 24:th day of December, 1857, and 
 presented said bill of exchange to a member of the firm for 
 acceptance. That the latter told him that as the bill had but 
 a few days to run, they would cash it if the interest between 
 that time and maturity were taken off; that the prisoner then 
 left the office, but returned in a few minutes, and said, " we will 
 do it," or " they will do it " (precise words witness could not 
 remember) ; that Kivers, Battle & Co. thereupon gave prisoner 
 their check for $1785yYir- The prisoner wrote at the bottom 
 of the bill, Kec'd payment, Sengstag & Co. Per J. Lowen- 
 thal — and then delivered said bill to Rivers, Battle & Co. 
 
 It was shown that said check had been paid, but not that 
 prisoner had presented it or received the amount. 
 
 One Hye, a witness for the State, testified that he was the 
 agent at Mobile for the firm of Sengstag & Co. ; that prisoner 
 was employed as a clerk of said firm, and his duty was to copy 
 letters, deposit letters in the postoffice, and go on errands ; that 
 the bill came into possession of witness as agent for Sengstag 
 & Co., and had been sent to them for collection. Witness 
 handed the bill to the prisoner with instructions *to present it 
 to Kivers, Battle & Co. for acceptance, and then return it to wit- 
 ness. That when the prisoner was sent for the bill on the next 
 day, he reported that both the Messrs. Battle were out of town, 
 but they would accept the bill when they returned, and send it to 
 Sengstag & Co. On the 26th day of December, the prisoner 
 went to New Orleans without informing his employer of his 
 intention to go. He was arrested and brought back. 
 
 Upon the trial the court instructed the jury, among other 
 things, " that if they believed from the evidence that the pris- 
 oner was the clerk of Sengstag & Co., and received the bill of 
 exchange from them or from their agent with instructions to 
 present it to Rivers, Battle & Co. for acceptance, and then to 
 return it, and that instead of doing so he fraudulently con- 
 verted it to his own use, such conversion was an embezzlement 
 under section 3143 of the code, although they shoiild believe 
 from the evidence that he had no authority to negotiate, dis- 
 count, or in any way dispose of the bill, and this is so if they 
 were satisfied that the bill had first come to the possession of 
 his employer." 
 
14:0 Phalen's Ceiminal Oases. 
 
 Stone, J. The indictment in this case strictly pursues the 
 form given in tlie code, p. 702, form 36, and is sufficient. 
 
 The main question raised by the discussion in this case is, was 
 the act of the prisoner for which he was indicted, larceny or 
 embezzlement. 
 
 For the prisoner it was urged that he was not guilty of em- 
 bezzlement, because the bill of exchange had been in possession 
 of the emjjloyer before it came to the possession of the prisoner 
 as his clerk, and under these circumstances the conclusion is 
 claijned that if he" subsequently disposed of it fraudulently 
 cum animo furandi, and without authority, he is guilty of 
 larceny. The English decisions upon their statutes come fully 
 up to this doctrine; see them collected in 2 Bish. Grim. Law, 
 301, note 1, 2, 3 and 4. (a) This principle, if applied to our 
 statutes, must work a reversal of this case. "We think, how- 
 ever, that there is a substantial difference between the English 
 statute and ours. Their first enactment was 21 Henry 8, ch. 
 7; it declared that when any casket, jewels, money, goods or 
 chatties were delivered to a servant or servants by their master ~ 
 or mistress to keep, if auy such servant or servants withdraw 
 him or them from their said-^nasters or mistresses, and go away 
 with said caskets, etc., to the intent to steal the same, etc. It 
 is obvious that this statute had but a restricted operation. 
 
 The statutes of 39 Geo. 3, c. 85, declared that if any servant 
 or clerk, or any person emjjloyed for the purpose in the capa- 
 city of servant or clerk, to any person or persons whomsoever, 
 or to any body corporate or politic, shall by virtue of such em- 
 ployment receive or take into his possession any money, goods, 
 bonds, bills, notes, bankers' drafts, or other valuable securities 
 or effects, for or in the name or on account of his master or 
 masters, employer or employers, and shall fraudulently em- 
 bezzle, secrete, or make away with the same, etc. 
 
 The later statutes, 7 and 8 Geo. 4, ch. 29, employs language 
 of similar import to that which I have underscored above, its 
 language is "receive or take into his possession," etc., "for or 
 in the name or on the account of his master, and shall fraudu- 
 lently embezzle the same," etc. 
 
 Tlie words in the English statutes, copied above, for in the 
 (a) For the English Slatules, see pg. 3, iinte. 
 
LOWENTHAL V. ThE StATE. 141 
 
 name, or on account, of his master, show clearly the money, 
 goods, etc., to come within the statute, must have been taken 
 or received from some person other than the master and 
 employer. 
 
 To say that a clerk received or took goods, etc., from his em- 
 ployer, for or in the name or on account of said employer, 
 would be a palpable solecism. _ "We think the English decisions 
 upon their statutes are manifestly correct. 
 
 Our Statute Code, section 3143, contains no siich clause as 
 that referred to in the English statutes. Its language is " any 
 officer, agent or clerk of any incoporated company, or clerk or 
 agent of any private person or co-partnership, except appren- 
 tices and other persons under the age of eighteen years, who 
 embezzles or fraudulently converts to his own use any property 
 of another which has come into his possession by virtue of his 
 employment, must on conviction be punished as if he had felo- 
 niously stolen such property." 
 
 The language of this section is much more comprehensive 
 than either of the English statutes. It embraces and provides 
 punishment for every case of embezzlement of property of 
 another which has come into the possession of a clerk or agent 
 })y virtue of his employm,ent. 
 
 The bill of exchange mentioned in the record was the prop- 
 erty of another, and it went into the possession of the prisoner 
 "by ^'i^tue of his employment," as clerk of Sengstag. The 
 case is within the very letter of the statute. 
 
 The New Tork Statute, 2 Eev. Stat. 678, sec. 59, is sub- 
 stantially like ours, on the questions we have been considering, 
 section 2, Bish. Crim. Law, sec. 302, note 2. "We have no 
 doubt that our legislation on this subject, although not ver- 
 bally identical, was taken from the New York Statute. See 
 Clay's Digest, 421, sec. 31; Code, sec. 3143. The JSTew York 
 Statute had been construed in that State before our penal Code 
 was adopted. See People v. Sherman, 10 Wend., 298; People 
 V. Dalton, 15 "Wend., 581. With their decisions the views here 
 expressed harmonize fully. 
 
 If it be objected that, under our construction, convictions 
 for embezzlement may be had upon facts which constitute lar- 
 ceny at common law, we answer that conceding it to be so, we 
 
142 Phalen's Criminal Cases. 
 
 know of no principle which denies to the legislature power to 
 make such provision. 
 
 The City Court committed no error in the reception of evi- 
 dence, and the charge was strictly in accord with the views 
 above expressed. 
 
 Judgment of the City Court affirmed. 
 
 "Wabmouth v. Commonwealth. 
 (Kentucky Law Rep. and Jour., vol. 4, p. 937. May, 1883 ) 
 
 Embbzzlbmbnt. — A distinction exists where a servant lias merely tlie 
 custody, and where he has the possession of goods. In the foriaer case 
 the felonious appropriation of the goods is larceny ; in the latter it is not 
 larceny, but embezzlement. 
 
 A servant who receives money for or on behalf of his principal, and de- 
 livers it to such principal or another for him, or places it in some deposi. 
 tory, such as a drawer or safe provided for that purpose, and afterwards 
 fraudulently appropriates the same to his own use, is guilty of larceny, not 
 embezzlement. 
 
 Haegis, C. J. The appellant was indicted, tried and con- 
 victed of the offense of grand larceny, charged to have been 
 committed by feloniously taking and carrying away $2647.57 
 in United States currency and bank notes, the property of the 
 Adams Express Company, W. B. Dinsmore, and others. 
 
 He has appealed, and his counsel insist that the facts proven 
 make out a case of embezzlement and not that of larceny, and 
 that the court erred in its instructions to the jury. Upon 
 first consideration, we were of the opinion that the crime 
 alleged had been proven, but that is a fact which the jury 
 have the exclusive right to determine under proper instructions ; 
 
"Waemoutii v. Commonwealth. 143 
 
 consequently the only point necessary to be decided is whether 
 the jury were rightly instructed, and not whether we believe 
 the facts constituted grand larceny. The Adams Express Com- 
 pany, a joint stock company, employed Shain as its local agent 
 at Badenburg. Shain furnished a room and safe in which to 
 deposit the money and valuable articles consigned to the Com- 
 pany for transportation, and the appellant, as his clerk, by the 
 consent of the Company, did the work and transacted the 
 business of the Company for Shain, who gave a bond to the 
 Company as its agent. The appellant was doing business gen- 
 erally for Shain, as his clerk, and among other things he was 
 required to attend to receiving and receipting for money and 
 goods delivered to the Express Company for transportion, for 
 which Shain paid him. 
 
 The evidence tends to show that the custom of apj)ellant 
 was, when he received packages of money, or other articles for 
 the Company, to deposit them in Shain's safe, and afterwards 
 when the steamboat came along to deliver the money to the 
 Company's agent on the boat; and that he received and re- 
 ceipted for the money charged to have been stolen, and applied 
 it to his own use and ran off. The court instructed the jury 
 in substance that if the appellant received or receipted for the 
 money either as agent or as clerk of the agent of the Express 
 Company, which was to transport it for hire, the money was 
 legally in the possession of the Company, and if appellant 
 took and carried it away with a felonious intent, he was guilty 
 of larceny. 
 
 Wharton and Bishop lay it down as a general rule that there 
 can be no larceny without a trespass, and that the statutes of 
 embezzlement were passed to make punishable acts of misap- 
 propriation where there was no trespass. 
 
 A distinction exists where a servant has merely the custody 
 and where he has the possession of the goods. 
 
 In the former case the felonious appropriation of the goods 
 is larceny; in the latter it is not larceny, but embezzlement. 
 
 The custody alluded to is such as that of a butler or house 
 servant, of hoiisehold goods, a hired hand of the plow and 
 horses of the farmer, for whom he is laboring, etc., and the 
 possession mentioned is an actual or constructive possession of 
 
lii Phalen's Ceiminal Cases. 
 
 the master or employer at the time the goods are taken. 
 What constitutes such a possession in a ma,]'oi'ity of cases 
 requires some nicety of analysis to determine. 
 
 Generally, where the agent has received goods or money to 
 carry, deliver, control or manage for the principal, unless the 
 agent parts with the manual possession and delivers the prop- 
 erty to the principal or another for him, or places it in some 
 depository such as a drawer or safe provided for the purpose, 
 and of which they have control, he cannot be convicted of 
 larceny or felonious appropriation of the goods or money, the 
 offense being embezzlement. Johnson v. Commonwealth, 5 
 Bush. 431. In the case before us, if the appellant, after he 
 received and receipted for the money, deposited it in the safe 
 provided by Shain, and then feloniously extracted the money 
 from the safe and carried it off, his offense was grand larceny, 
 for the possession of Shain was also the possession of the 
 Company. 
 
 This view of the case was not embraced by the instructions, 
 which should have been done, leaving the jury to determine 
 whether the appellant, after he received the money, deposited 
 it in the safe and afterwards extracted it from the safe with a 
 felonious design to appropriate it to his o^vn use. Wherefore 
 the judgment is reversed and the cause remanded, with di- 
 rections to grant appellant a new trial. 
 
 Note. — In Snapp v. Commonwealtli, 6 Ky. Law Rep. and Jour., July, 
 1884, the defendant was employed by a city tax collector as clerk to collect 
 taxes due the city, having collected taxes which he converted to his own 
 use, he was indicted for larceny. Held, that he was not guilty of larceny 
 since the money had come rightfully into his possession. That where one 
 comes lawfully into possession of property, he does not become liable to a 
 prosecution for larceny, for subsequently converting the same to his own 
 use. 
 
 In McCann v. United States, 3 Wy., 267, the indictment charged the de- 
 fendant with embezzling, stealing and purloining certain articles, without 
 alleging the fact more particularly. It appeared on the trial, that the de- 
 fendant had been employed by the Government to transport certain goods 
 to a particular place, and that subsequently a new arrangement was made 
 with some other government agent concerning the transfer and delivery of 
 the same goods, and that the defendant had appropriated the goods to his 
 own use, etc. Seld 1. That the defendant could show what the new arrange- 
 
Larceny. 145 
 
 ment concerning the transfer and delivery was. 2. Tliat the crime charged- 
 was embezzlement, not larceny. S. That the indictment, not alleging the 
 facts, charged a mere conclusion of law and was defective, although using 
 the language of the statute, and i. That a charge of embezzling and steal- 
 ing by one and the same act is a charge of the commission of two distinct 
 crimes and repugnant. 
 
 LAECEi^Y. 
 
 Of the several definitions of larceny, given by writers on 
 criminal law, Mr. East's seems to be the most favored. He de- 
 fined larceny to be " the wrongful or fraudulent taking and 
 carrying away by any person of the mere personal goods of 
 another, from any place, with a felonious intent to convert 
 them to his (the taker's) own use, and make them his own 
 property, without the consent of the owner." (a) 
 
 In a recent English ease, (b) in the Court of Criminal Ap- 
 peal, BoLLivEE, C. J., in defining larceny said, " the proper 
 definition of larceny, according to the law of England, from 
 the time of Bracton downwards, has been considered to be " the 
 wrongful or fraudulent taking and carrying away by any per- 
 son, of the personal goods of another, from any place, without 
 any color of right, with a felonious intent to convert them ta 
 the taker's own use, and make them his own property, without 
 the consent and against the will of the owner." 
 
 However, since larceny may be committed by the finder of 
 lost goods, or by one receiving from another a greater sum of 
 money than was intended to be paid or delivered, without any 
 previous wrongful or fraudulent intent up to the time of the' 
 actual finding or receiving; and since the taking and conver- 
 
 (o) 3 East. P. C, 553. (6) Reg. v. Middleton, Post 189. 
 
 10 
 
146 Phalen's Cbiminal Cases. 
 
 aion will be complete if the thing stolen be abandoned by the 
 thief, lost, cast away, destroyed or delivered to a third person, 
 so as to deprive the owner of its temporary use, it is obvious 
 that any words used to define the crime of larceny will be sub- 
 ject to many qualifications, and that no general rule of con- 
 struction can give them application in every instance, (c) 
 
 State v. Davis. 
 (38 N. J., 176.) 
 
 Labcbnt. — Fraudulently taking the personal property of another with 
 out his consent, and with no intent at the time of taking to return the 
 same, is evidence of such intent to deprive the owner of his property, that 
 a jury not only could, but should find the taker guilty of larceny. 
 
 To fraudulently take the personal property of another without his con- 
 sent, and then to abandon the same so as to subject it to loss from the nat- 
 ural consequence of such abandonment, is a sufficient taking to sustain a 
 conviction for larceny, though the property was not actually lost. 
 
 The defendant, in passing along the street near midnight, took a horse 
 and carriage which was standing in front of a residence, and drove rapidly 
 away. About ten o'clock the next day the horse and carriage were found 
 abandoned. Held, that this was sufficient evidence of the felonious intent 
 to deprive the owner of the property to constitute the crime of larceny. 
 
 ScTTDDEE, J. The defendant, who is quite young, in passing 
 along the street, near midnight, February 22, 1875, saw the 
 carriage of Dr. Charles Hodge, Jr., standing in front of his 
 residence. He and a companion took the horse and carriage, 
 drove rapidly away in a reckless manner, and about ten o'clock 
 the next day the horse and carriage were found abandoned sev- 
 
 (c) Reg. V. Middleton, Post 189; People, Post 171; Murphy v. People, 
 
 State V. Davis, Post 146; Waters v. Post 157; Welsh v. People, Post ; 
 
 People, Post 153 ; Com. v. Titus, Post R. v. Lavender, Post 181; R. v. 
 
 ; People v. Swan, Post ; Paradice, Post 183. 
 Baker v. State, Post 179; Loom is v. 
 
State v. Davis. 147 
 
 eral miles away from where they were taken. They were found 
 in the road, the horse much exhausted from driving and want 
 of food. The prisoner did not return the horse and wagon to 
 the owner, or make any effort to do so, or apprise any one 
 where they could be found, or to whom and where they be- 
 longed. He did not even put them in some secure place, where 
 the owner might find them. These acts were perfectly con- 
 sistent with an intent originally to deprive the owner of his 
 property, but finding them a dangerous possession, and be- 
 coming frightened, they were abandoned when detection became 
 imminent. His conduct was utterly reckless of the rights of 
 the owner ; but was it criminal, and does it sustain the finding 
 that he was guilty of larceny? 
 
 The principles which much determine this case are fully dis- 
 cussed by Chief Justice Green, in State v. South, 4 Dutch. 
 38, and, as is his wont, he leaves but little to find on the sub- 
 ject for those who come after him as gleaners. 
 
 The question in the case was, whether the fraudulently de- 
 priving the owner of the temporary use of a chattel can con- 
 stitute larceny at the common law, whether the felonious 
 intent, or animus furandi, may consist with an intent to 
 return the chattel to the owner. It was there held, that if the 
 property was taken with the intention of only using it tempo- 
 rarily, and then returning it to the owner, it is not larceny; 
 but if it appears that the goods were taken with the intention 
 of permanently depriving the owner of his property, then it 
 is larceny, and that this intent is a fact to be decided by the 
 jury from the evidence. 
 
 The question, therefore, in this case is whether there are 
 facts shown from which a jury should infer that it was the 
 intention of the defendant to permanently deprive the owner 
 of his property. 
 
 A man's intention must be judged by his acts and expres- 
 sions; and it is manifested by circumstances that vary with 
 almost every case that is presented for consideration. The 
 general rule to determine what he intends by his acts is, that 
 a man intends the consequence which he contemplates, and 
 which he expects to result from his acts, and he therefore must 
 be taken to intend every consequence which is the natural and 
 
148 Phalen's Ckiminal Cases. 
 
 immediate result of any act which he voluntarily does. 2 Stark. 
 Ev., 573. 
 
 Wlien by the voluntary act of this defendant, the horse and 
 carriage were loosed from their hitching place in front of their 
 owner's door, and driven away in the night, and after many 
 miles and hours of reckless driving, were left in the public 
 road, did the taker contemplate, and was the natural and im- 
 mediate consequence which he should be presumed to contem- 
 plate at the time of taking, that the owner would be perma- 
 nently deprived of his property? 
 
 It is not his intention at the time of the abandonment, but 
 the purpose at the time of the taking that we miist seek; for 
 an article may be taken with intent to steal, and afterwards 
 abandoned on pursuit, or from a mere change of purpose, yet 
 the taking will be larceny. I think the fraudulent taking the 
 personal property of another without his consent, and with no 
 intent at the time of taking to return the same, is evidence of 
 such intent to ^ deprive the owner of his property ; that a 
 jury not only could, but should find the taker guilty of lar- 
 ceny. 
 
 It is not a mere temporary taking which may consist with 
 an intent to return, but a taking which may result by a natural 
 and immediate conseqvience in the entire loss and deprivation 
 of the property to the owner. An abandonment to mere 
 chance is such reckless exposure to loss, that the guilty party 
 should be held criminally responsible for an intent to lose. 
 
 If a person takes another's watch from his table with no 
 intent to return it, but for the purpose of timing his walk to 
 the station to catch a train, and when he reaches there, leaves, 
 it on the seat, for the owner to get it back or lose it, as may 
 happen; if a man takes another's axe with no intent to return 
 it, but to take it to the woods to cut trees, and after he has fin- 
 ished his work cast it into the bushes, at the owner's risk of 
 losing it, such reckless conduct would be accounted criminal. 
 It is true that the probability of finding the horse and wagon 
 may be greater than that of recovering the, watch or axe, be- 
 cause they are larger and more difiioult to conceal, but the 
 intent is not to be measured by such nice probabilities, rather 
 by the broader probability that the owner may lose his prop- 
 
State v. Davis. 149 
 
 erty, because the taker has iio purpose of ever returning it 
 to him. 
 
 The cases that are most frequently cited in opposition to this 
 view are, Philips & Strong's Case, 2 East P. C, eh. 16, § 98. 
 Here the horses were taken to and in a journey, and left at an 
 inn. The jury found the prisoner guilty, but added they wQre 
 of opinion that the persons meant merely to ride them to 
 Leedsdale and leave them there, and that they had no intention 
 to return them or to make any further use of them. The 
 court said, that if the jury had found the prisoner guilty gen- 
 erally upon the evidence, the verdict could not have been ques- 
 tioned, but as they found specially from the facts that there 
 was no intention in the prisoners to change the property, or 
 make it their own, bn.t only to use it for a special purpose to 
 save their labor in traveling, it was only a tresj)ass and not a 
 felony. The express intention found was inconsistent with the 
 general finding. Yet the facts were sufficient to sustain a gen- 
 eral verdict of guilty of larceny. The court were divided on 
 the effect of this special finding. 
 
 In Pex V. Crump, 1 C. & P., 658, (11 E. C. L.), the prisoner 
 took a horse with other property, and after going some dist- 
 ance turned the horse loose, proceeded on foot and attempted 
 to dispose of the other property. It was left to the jury to say 
 whether he intended to steal the horse or to use him to carry 
 off the plunder. He was found not guilty of stealing the horse, 
 and guilty of stealing the other property. 
 
 It was said that he distinctly manifested his purpose of con- 
 verting the other articles to his own use by offering them for 
 sale. It is odd that such a nice distinction and division of in- 
 tention should be made dependent on the kind of property 
 taken at the same time. 
 
 Lord Denman said in Hegina v. Holloway, if a man took 
 another's horse without leave, intending to ride it at every fair 
 in England (which would take him a year), and then return 
 the horse at the end of that time, it would not be larceny. 
 This was the statement of an extreme case by way of illustra- 
 ting a principle, and there was here a purpose to return to the 
 owner. 
 
 In Hex V. Cabbage, E. & E. C. C, 292, the prisoner went to 
 
150 Phalen's Criminal Cases. 
 
 a stable door, forced it ojjeii, took the horse out, went some dis- 
 tance along the road until he came to a coal pit, and then 
 backed the horse in the pit, where he was found dead. It was 
 held that it was not essential, to constitute the offense of lar- 
 ceny, that the taking should be lucri causa , that taking fraud- 
 ulently, with an intent wholly to deprive the owner of the prop- 
 erty, was sufficient, and the j)risoner was convicted. 
 
 These cases will be sufficient to illustrate the principles and 
 distinctions upon which this case will be decided. 
 
 It is conceded that the law is settled with us according to 
 the rule of the common law, and the approved definition of 
 larceny, given by Mr. East in East's P. C, ch. 16, § 1, where 
 it is said to be " the wrongful or fraudulent taking and carry- 
 ing away, by any person, of the mere ^Jersonal goods of an- 
 other from any place, with a felonious intent to convert them 
 to his (the taker's) own use, and make them his own property, 
 without the consent of the owner." And it has been uni- 
 formly held that the felonious intent must manifest a purpose 
 to deprive the owner wholly of his property. 
 
 The definition given by Eyee, B., Pear's Case, P. C, ch. 16, 
 § 12, that larceny is the wrongful taking of goods with intent 
 to spoil the owner of them causa lucri, would seem to be too 
 narrow, because the law considers not only and always the 
 effect of gain to the taker, as an essential to the crime, but also 
 the deprivation to the owner of his property. Either will be 
 sufficient in the evidence of larceny. 2 Arch. Cr. Pr. & PL, 
 389-392. 
 
 It is interesting, however, to notice the broader definition of 
 theft or larceny in the civil law, and how nearly it accords with 
 the efforts to reach, by criminal punishment, the reckless tem- 
 porary use and abuse of the property of others, by taking from 
 an owner who does not consent. 
 
 Just. Ins., lib. 4, tit. 1. thus defines it: Furtum est contreo- 
 tatio fraudtdosa, lucri faciendi gratia, vel ipsius rei,vel etiam 
 usus ejus, possessionisve; quod legi natv.rali prohibitum est 
 admittere." Thus, not only the fraudulent taking of the thing 
 itself, but the using and possessing anything by fraud for the 
 sake of gain, was theft by the civil law. But this does not 
 agree with the law as settled in our common law courts, and 
 
State v. Davis. 151 
 
 the taker must intend to deprive the owner wholly of his prop- 
 erty. 
 
 This is the conclusion to which Chief Justice Geeen came, 
 as it appears reluctantly, in the case of The State v. South, and 
 against whom Judge Shaeswood protests in the note to Queen 
 1). Holloway, 1 Den. C. C, 376, reasoning strongly for an ex- 
 tension of the definition of larceny. 
 
 Doubtless the severe punishment of felony under the old 
 English law has led to this more restricted construction, but 
 the lighter penalties which now are inflicted would seem to 
 make an extension of the crime of theft or larceny desirable, 
 even to the limits of the civil law definition. 
 
 There has been no case decided in this State that has held 
 that where the taker had no intention to return the goods, the 
 taking was merely temporary. Nor is there anything that 
 should control the action of a jury, or the court acting as such, 
 under the statutes, when they find that the party having no 
 such intent is guilty of larceny. It would be most dangerous 
 doctrine to hold that a mere stranger may thus use and abuse 
 the property of another, and leave him the bare chance of re- 
 covering it by careful pursuit and search, without any criminal 
 responsibility in the taker. 
 
 The court of quarter sessions are advised that the verdict is 
 right, and should not be disturbed. 
 
 Note. — la Hill and fiaother v. The State, 57 Wis. 377, the information 
 was for larceny of a horse, the property of one Barber, the keeper of a 
 livery stable, In the city of Waukesha. The defendant, Lawbencb, on 
 the 10th day of September, at five o'clock in the afternoon, hired the 
 horse, with a top buggy, to go to a place called Honeyaker, about three 
 miles from Waukesha, to be returned at nine or ten o'clock that evening. 
 The defendant. Hill, was taken into the buggy before leaving Waukesha 
 and a short distance from Ihat place on the road to tlje city of Milwaukee, 
 the buggy was turned over and the top torn off and left, and they drove 
 on together to Milwaukee that night. The next day Hill was at Oak 
 Creek, in Milwaukee county, on the road to Racine, with the horse and a 
 part of the harness, and tried to sell the horse there, and was arrested, and 
 Lawrence was arrested in Milwaukee. They both prevaricated as to their 
 names, residences, and destination. 
 
 Upon the trial, the Municipal Court of the county of Milwaukee re- 
 fused the following instruction asked on behalf of the defendants. " Ii 
 
152 Phalen's Criminal Cases. 
 
 the defendants, at the time said horse was hired, had no intent to steal it, 
 the subsequent appropriation of the same to their own use, is a mere con- 
 version, and is not larceny." And the court gave the following instruc- 
 tion, which was excepted to on behalf of the defendants: "If you be- 
 lieve their statements against Barber's and liis man's, that was in the 
 stable at the time, that they hired the horse for an indefinite purpose and 
 agreed to be back before ten o'clock at night, and that they afterwards 
 went to Milwaukee, and formed a design to sell the horse after that time, at 
 any time before tliey were caught, you will be justified in finding they had that 
 intent at the time they took the horse." 
 
 Orton, J., in reversing the judgment of conviction, among other things 
 said: "The instruction refused, substantially expressed the law, and 
 ought to have been given, and the instruction giren was clearly erroneous, 
 because against the law so expressed. It may at one time have been c in- 
 sidered the law of larceny that although the hiring and taking, in the 
 first place, might have been bona fide, yet if the time for which 
 the hiring was made had expired, and the property is afterwards 
 converted, it is larceny. But such has not, for a long time, been 
 considered the law, and it is now stated correctly as follows: 
 That "where the horse was delivered on a hire or loan, and such 
 delivery was obtained bona fide, no subsequent wrongful conversion, 
 pending the contract, would amount to a felony." 2 Rush, on Crime (9th 
 ed.), 237. "When the possession was obtained bona fide, the mere fact of 
 the subsequent existence of the animus furandi does nut make the offence 
 larceny." 3 Wliart. Crim, Law § 1860. The exceptions to this rule has 
 no application to this case. " If one hire a horse and sell it before the 
 journey is performed, or sell it after, or before it is returned, he commits 
 no larceny, in a case where the felonious intent came upon him subse- 
 quent to the receiving it into his possession." 2, Bish. Crim. Law, § 864. 
 
 Those statements of law should be qualified by saying if he hires the 
 horse in the first place with a bona fide intent of returning it according to 
 the contract of hire, the circumstances of the conversion of the property 
 subsequent, and of not even entering upon the performances of the con- 
 tract of hire, but taking the property elsewhere, and of other mailers 
 evincing it, may be evidence of an intention to convert the property at 
 the time of the hiring. 
 
 But a subsequent conversion of the property merely may not be suffici- 
 ent evidence of such an original intent." 
 
Waters v. The I'koi-le. 153 
 
 Sterling F. Waters v. The People of the State of Illinois. 
 
 (104 111., 551) 
 
 Larceny — t. Duplicity in count of indictment. Where a person by one 
 united, continuous and indivisible act, steals a horse, buggy and harness, 
 a count in an indictment for larceny of the horse, buggy and harness is 
 not obnoxious to the charge of duplicity. Such act constitutes only one 
 crime, and all the articles stolen are property named in the same count. 
 If the different articles had been stolen at diflferent times, it would present 
 a different question. 
 
 2. To constitute duplicity in an indictment there must be joined in the 
 same count different, separate and distinct crimes, committed at different 
 times. When it is but one act, fully completed at the same time, there 
 can be no duplicity, however many different kind of articles of property 
 are alleged to be stolen, and, it being but a single larceny, it is not error 
 to so charge in one count in the indictment. 
 
 3. Larceny — presumed from possession. The possession of property, 
 recently stolen, is evidence upon which a jury may convict the person 
 having such possession, unless he show the possession was honest and 
 lawful. When such possession is shown, it devolves on the accused to re- 
 but the presumption of guilt thus raised, by showing his possession to be 
 innocent and rightful. 
 
 Writ of error to tlie Circuit Court of Will county, the Hon. 
 JosiAH McKobeets, Judge, presiding. 
 
 Messrs. Haley & O'Donnell, for the plaintiff in error. 
 
 A verdict of guilty as charged in a count of an indictment, 
 means guilty of the larceny of all the property described in 
 such count. 2 Archbold's Criminal Pr. and PL, 373 and 
 note. 
 
154 Phalen's Ceiminal Cases. 
 
 If defendant was not guilty of the larceny of the horse, then 
 this verdict is unsupported, without regard to the balance of 
 the goods. Even though guilty of outrageous conduct in ob- 
 taining possession of the horse, — even though guilty of a mali- 
 cious trespass in removing and turning it loose, — still, unless 
 the evidence shows larceny beyond all reasonable doubt, the 
 conviction can not stand. Stuart v. People, Y3 111., 20; Phelps 
 V. People, 55 id., 3M; McCourt v. People, 64 N. T., 583; 
 Phillips V. Strong, Case, 2 East, P. C. 662; Smith v. Schultz, 
 1 Scam., 490; Smith v. Donnelly, 66 111., 464; Eex v. Crump, 
 1 Carr, v. Paine, 656. 
 
 The instruction in respect to the possession of stolen prop- 
 erty, stating it to be sufficient evidence of guilt unless defend- 
 ant's possession is satisfactorily explained by the evidence, is 
 erroneous. The evidence need only rebut the presumption to 
 such an extent as to raise a reasonable doubt of defendant's 
 guilt. The defendant is not required to establish his innocence 
 to the satisfaction of the jury, when once a prima facia case is 
 made out against him. Comfort v. People, 54 111., 404; Hopps 
 V. People, 31 id., 385; Chase v. People, 40 id., 350. 
 
 The punishment for the larceny of a horse is different from 
 that of a buggy and harness, and being so, a count charging 
 both offences is bad for duplicity. Barton v. State, 18 Ohio, 
 221; Commonwealth v. Symonds, 2 Mass., 162; Reed v. Peo- 
 ple, 1 Parker's Cr. R, 481; 1 Archbold's Criminal PI., 49, 
 55, 56. 
 
 Mr. James McCartney, Attorney General, for the People: 
 
 It is not necessary to prove the larceny of all the articles al- 
 leged to have been stolen. Archbold's Criminal PL, (7th ed.) 
 161 ; 3 Chitty's Criminal Law, 946. 
 
 The exclusive possession of the whole, or some part of prop- 
 erty recently after the theft, is sufficient, when standing alone, 
 to cast upon the party having such possession the burden of 
 explaining how he came by it. 2 Kussell on Crime, 337 ; Phil- 
 lips on Evidence, (7th ed.), 168; Knickerbocker v. People, 43 
 ]SI. Y., 177; State V. Braddy, 27 Iowa, 126; State v. Creson, 
 38 Mo., 372; State v. Turner, 65 N. C, 592; State v. Williams, 
 9 Ired., 140. 
 
 Two distinct crimes may be joined in one count, where one 
 
Waters v. The People. 155 
 
 and the same act constitutes both crimes. Ruth v. People, 99 
 111., 185; 1 Wharton's Criminal Law, sec. 931; Oleson v. State, 
 20 Wis., 58. 
 
 A count in an indictment charging that the defendant broke 
 and entered a shop with intent to commit a larceny, and did 
 then and there commit a larceny, is not bad for duplicity. 
 Commonwealth v. Tuck, 20 Pick., 356; Commonwealth v. 
 Hope, 22 id., 1; State v. Ayer, 23 N. H.,301; Davis v. State, 
 3 Coldw., (Tenn.), Y7. 
 
 The Supreme Court of Yermont has passed upon a case 
 identical with the one at bar, and there held that a single count 
 in an indictment charging the larceny of a horse, wagon and 
 harness, was not bad for duplicity. State v. Cameron, 40 
 Yt., 555. 
 
 This court has before sustained a count charging the larceny 
 of horses and harness, and no reason appears for overruling 
 the decision. Bennett et al. v. People, 96 111., 602. 
 
 Mr. Justice Walkee delivered the opinion of the court- 
 Plaintiff in error was indicted in the Will Circuit Court for 
 larceny. The first count charges him with the larceny of one 
 horse, the property of one Barnes. The second count charges 
 him with the larceny of one horse, one buggy and one harness, 
 the property of the same person. On a trial, the jury found 
 plaintiff in error guilty as charged in the second count in the 
 indictment, and fixed his term in the penitentiary at four years. 
 It is urged that the indictment is bad, and the court erred in 
 overruling a motion to quash. Also, that the evidence fails to 
 support the verdict, and the instructions for the People are er- 
 roneous. For this reason a reversal is asked. 
 
 It is urged that the second count is double, as it charges the 
 stealing of a horse, and a buggy and harness ; that horse steal- 
 ing constitutes a distinct offence, and the stealing of a buggy or 
 a harness, another and different offence; that the punishment 
 for horse stealing is confinement in the penitentiary not less 
 than thi*ee nor more than twenty years, while the punishment 
 for grand larceny of other property is fixed at not less than one 
 year nor more than ten years. It is therefore claimed that the 
 stealing of a horse is, under the statute, a different and dis- 
 tinct crime from the stealing of a buggy or harness ; that they 
 
156 Phalen's Criminal Cases. 
 
 are separate offences, created by different sections of the stat- 
 ute, which imposes different degrees of. punishment, and for 
 that reason the count charges two separate and distinct crimes, 
 and is bad because of duplicity, and the judgment should 
 have been arrested. In this case there were not two crimes. 
 It was one united, continuous and indivisible act, consisting of 
 the larceny of one horse, one buggy and one harness. It would 
 be unheard of to permit the people to split up such a larceny 
 into two or more separate crimes, and to allow as many differ- 
 ent and separate convictions. To be duplicity there must be 
 joined in the same count different, separate and distinct crimes, 
 committed at different times. "When it is but one act, fully 
 completed at the same time, there can be no duplicity, how- 
 ever many or different kinds or articles of property are stolen, 
 and it being but a single larceny, it is not error to so charge it 
 in one count in the indictment. Had the horse been stolen at 
 one time, and the buggy and harness at another, then there 
 would be force in the argument, because there would have been 
 two separate and complete crimes. But by no process of rea- 
 soning can there be held to be more than one crime in this case. 
 The jury heard the evidence, and it was for them to determine 
 whether the accused took the property, and if so,, what was his 
 purpose in taking it, — whether with an honest or felonious in- 
 tent. They have found it was with a felonious purpose, and 
 we are satisfied the evidence required the finding of their ver- 
 dict. Because the owner found the horse a few hours after he 
 was taken, not far distant from the place from which he was 
 taken, does not necessarily rebut the presumption raised by the 
 circumstances in evidence that it was stolen. On the contrary, 
 from the evidence there is scarcely a doubt that plaintiff in er- 
 ror, almost immediately after stealing Barnes' horse, took an- 
 other horse from a buggy, turned Barnes' loose, and hitched 
 the other horse to Barnes' buggy. From this fact the jury 
 could not reasonably find otherwise than he took Barnes' horse 
 with a felonious intent. 
 
 The possession of property recently stolen is evidence upon 
 which a jury may convict the person having such possession, 
 unless he shows the possession was honest and lawful. When 
 such possession is shown, it devolves on the accused to rebut 
 
MuEPHY V. The People. 157 
 
 the presumption of guilt thus raised, by explaining and show- 
 ing his possession to be innocent and rightful. The abandon- 
 ment of Barnes' horse, under the circumstances, does not repel 
 the presumption that he took the horse, or that the taking wa& 
 felonious. He was seen in possession of the property almost 
 immediately after the taking, which was evidence of the lar- 
 ceny, and he offered no evidence to rebut this presumption of 
 his guilt. In view of the entire evidence, the jury were war- 
 ranted in finding the verdict they did. 
 
 Complaint is make that the court erred in refusing instruc- 
 tions asked by accused. The instruction asked and given for 
 him embraced all of the correct legal propositions contained in 
 the refused instruction, l^or, in view of all of the instructions 
 given, are we able to see that the jury could have been misled. 
 They were fair, and stated the law correctly, and this being so, 
 there is no ground for a reversal, and the judgment of the court 
 below must be affirmed. 
 
 Judgment affirmed. 
 
 Michael Muephy v. The People. 
 (104 111., 528.) 
 
 Lakokny. — If the owner of goods alleged to have been stolen, parts 
 ■with both the possession and the title to 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 gooda 
 may be feloniously converted by the bailee, so to relate back and make 
 the taking and conversion a larceny. 
 
 The facts as shown by the prosecution, were, that one 0. entered a place 
 of business kept by one F., to make a purchase, and procured the articles 
 
158 Phalen's Criminal Cases. 
 
 desired. The buyer, not having the exact amount of money with which 
 to pay for the articles purchased, handed the proprietor a twenty dollar 
 gold coin for the purpose of making " change." The proprietor, on look, 
 ing over his money on hand, said he could not "change "it, and there, 
 upon pushed the coin towards the accused, who was standing near, and 
 requested him to go and get the coin "changed." The accused took the 
 coin, left the room, and never returned or accounted for the coin. It was 
 held, these facts made a case under the indictment. 
 
 VAKI.4.NCE. — It was charged that the coin was delivered to the accused 
 by C, the buyer, while the proof shows it was delivered by F., the pro- 
 prietor, to whom it had been handed by C, for the purpose of making 
 " change,'' it was held, that as to the delivery, F., the proprietor, was to be 
 regarded as the agent of C, and that there was no variance. 
 
 Joinder of CotTNTS. — A count for larceny, and a count for embezzle- 
 ment, may be joined in the same indictment, and be good, a general ver- 
 dict of guilty will be sustained. 
 
 New trial. — Evidence considered insufHoient to warrant a new trial. 
 
 Counsel assigned by the court will be presumed to be competent, and 
 the question of the competency of such counsel will not be considered on 
 a motion for a new trial. 
 
 Writ of error to the Circuit Court of Will County, the Hon. 
 J. McKoberts, Judge, presiding. 
 
 jyUessrs. Haley & O'Donnell, and Mr. J. E.. Flanders, for the 
 plaintiff in error. 
 
 James McCartney, Attorney General, for the People. 
 
 Mr. Justice Schoiield delivered the opinion of the Court. 
 
 Plaintiff in error, and John Fay, were jointly indicted for 
 the crime of larceny. They were jointly tried, and the jury 
 found plaintiff in error guilty, and Fay not guilty. Judgment 
 was entered upon this verdict, after overruling a motion for a 
 new trial. This writ is prosecuted to reverse that judgment? 
 for several errors alleged, which we shall proceed to briefly 
 consider. 
 
 First — It is claimed the verdict is not sustained by the evi- 
 dence. The undisputed facts, as proved on the trial, are: One 
 Coskey, and a friend accompanying him, entered a saloon, in 
 Joliet, kept by Fay, and procured drinks, and Coskey not 
 having the exact amount of money with which to pay for the 
 drinks, handed Fay a twenty dollar gold coin. United States 
 
Mtjrphy v. The People. 159 
 
 coinage, for the purpose ©f making " change." Fay, on look- 
 ing over his money on hand, said he coxild not " change " it, 
 and thereupon pushed the coin toward plaintiff in error, who 
 was, at the time, standing by the bar, and requested him to go 
 and get it " changed." Plaintiff in error took the coin, left 
 the saloon, and never returned or accounted for the coin. 
 
 The case seems in all its essential features, precisely like 
 Farrell v. The People, 16 111., 506. There, one Hennis, gave 
 Farrell,who was a hack-driver, a five dollar bill to be "changed," 
 in order that Hennis might pay Farrell twenty -five cents. Far- 
 rell did not return with the bill or the " change." The court 
 held he was guilty of larceny. 
 
 In "Walsh et al. v. The People, 17 111., 339, (a case similar in 
 the controlling principle to that in the present case), it was 
 said: "Where, as in this case, the alleged larceny is perpe- 
 trated by obtaining the possession of the goods by the volun- 
 tary act of the owner, under the influence of false pretenses and 
 fraud, when the cases are carefully examined and well under- 
 stood, there is no real difficulty in deducing the correct rule, 
 by which to determine whether the act was a larceny and fel- 
 onious, or a mere cheat and swindle. The rule is plainly this : 
 if the owner of the goods alleged to have been stolen, part with 
 both the possession and title to the goods to the alleged thief, 
 then neither the taking nor the conversion is felonious. It can 
 but amount to a fraud. It is obtaining goods under false pre- 
 tenses. If, however, the owner parts with the possession vol- 
 untarily, but does not part with the title, expecting and intend- 
 ing 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. The pointed in- 
 quiry in such a case must always arise, did the owner part with 
 the title to the things, and was the legal title vested in the pris- 
 oner." 
 
 Again, in Stinson v. The People, 43 111., 397, the same doc. 
 trine was reiterated. It was there among other things said: 
 " If, however, the owner parts with the possession voluntarily, 
 but does not part with the title, expecting and intending the 
 
160 Phalen's Criminal Cases. 
 
 same thing shall be returned to him, or that it shall be dis- 
 posed 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 felony, if the goods were obtained 
 with that intent. 
 
 This settles the law in this State, but analogous ruling, else- 
 where, may be found in the following cases, referred to in argu- 
 ment by the Attorney General: Bailey v. The State, 58 Ala., 
 414; Commonwealth v. Barry, 124 Mass., 325; State v. "Wil- 
 liamson, 1 Houst. Crim. C, 155; State v. Anderson, 25 Minn., 
 66; People v. Abbott, 63 Cal., 284; Elliott v. Commonwealth, 
 12 Bush., 176; Macino v. People, 19 N". Y., 127; Common- 
 wealth V. liurd, 123 Mass., 438; People v. McDonald, 43 IST. 
 Y., 61 ; Hildebrand v. People, 56 Id., 394. 
 
 No mitigating or extenuating circumstances were given in 
 evidence, and no grounds are therefore apparent upon which it 
 can be said the verdict is not,sustained by the evidence. The 
 proof on behalf of the prosecution made a case, and that proof 
 is in no manner overcome or impaired by controverting proof 
 on behalf of plaintiff in error. 
 
 Second — It is argued the second count in the indictment is 
 for embezzlement, and it is bad. Suppose it is, the first count 
 is undoubtedly good, and that is sufficient to sustain the gen- 
 eral verdict of guilty. Townsend v. The People, 3 Scam., 329; 
 Holliday v. The People, 4 Gill., 113. But if the counts be 
 both good, and we think they are, inasmuch as it is evidently 
 but the statement of the same felony in different forms, the 
 joinder is not objectionable. Lyons et al. v. The People, 68 
 111., 275. Joinder of embezzlement with larceny is in accord- 
 ance with the well established practice. 1 Wharton's Crim- 
 inal Law, (7th ed.) latter part of Sec. 420, and cases referred to 
 in note Y. 
 
 And it may also be properly here added, the objection that 
 there is a variance between the proof and the second count, (if 
 it were important to consider such a question when it does not 
 also lie to the first count,) is untenable. The averment that 
 the delivery was to plaintiff in error, is literally sustained. As 
 to that act, Fay is to be regarded as the agent of Coskey, and 
 
MuEPiiY V. The Pkoplk. 161 
 
 the rule applicable is, what the principal does by an agent he 
 does by himself. 
 
 Third — Counsel for plaintifE in error contend the property 
 here was not properly laid in the indictment as the property of 
 Coskey. We can not yield our assent to this view of the law. 
 In all the cases before referred to on the question of the char- 
 acter of the offence made out by the unquestioned facts, a con- 
 trary doctrine is announced. The property may be alleged in 
 the indictment as the property of the real owner, or of any 
 person having a special property in it as bailee. 2 Kussell on 
 Crime, (7th Am. ed.), 89, *90; 2 Wharton's Criminal Law, 
 (7th ed.), Sec. 1818, et seq. But clearly no title here passed 
 to plaintiff in error. There was no intention he should become 
 owner. He was simply to perform a duty in regard to the 
 property, — " change " it — that is, convey it to one who would 
 give what, in popular language, is denominated " change," viz: 
 bills, or gold or silver coins, or some of each, of lesser denomi- 
 nations, in amount of equal value, in exchange for it, and re- 
 turn this " change " to Coskey. Fishback v. Brown, 16 111., 
 74, cited and relied upon by counsel for appellant, does not 
 affect the question. In that case, what was decided was simply 
 that a party " changing " money for an agent, supposing him 
 to be acting as principal, may proceed against either the agent 
 or the principal, when he discovers him, in the event of a right, 
 of action growing out of such " changing " of money. The 
 agent was there held liable because the principal was not known 
 and trusted, but there woiild not have been the slightest objec- 
 tion, had the party so elected, to holding the real principal 
 liable. 
 
 It may be, had this coin been alleged to have been the prop- 
 erty of Fay, plaintiff in error could not have objected to his 
 title, but this furnishes no objection to the property being al- 
 leged in the real owner. In point of fact, no title ever passed 
 to Fay. It was passed to him just as he passed it to plaintiff 
 in error — not to invest title, but to procure it to be "changed" 
 into, or to speak more accurately, exchanged for, bills or coins, 
 or a combination of each, of smaller denominations, in an ag- 
 gregate amount and value equal to it, and as to that act he was, 
 legally, the agent of Coskey. 
 11 
 
-162 Fjialen's Cbiminal Oases. 
 
 We can not perceive that Kribs v. The People, 81 111., 599, 
 has any bearing npon the case. There the indictment was for 
 larceny only, as at common law, while here we have a count for 
 larceny as at common law, and a count for embezzlement, and 
 hence, if the proof sustains either, the conviction must stand. 
 But from the authorities cited, and what has been said, it must 
 be evident, we are of opinion, the evidence sustains the count 
 for larceny as at common law. 
 
 Tlie affidavits in support of the motion for a new trial dis- 
 closes no sufficient ground. Two of theili merely show efforts 
 of the plaintiff in error to get mone}' " changed," — what nroney, 
 is not conclusively shown. But even if it were this for the 
 stealing of which he is con^dcted, that fact does not even tend 
 to show his innocence. His offence is not in failing to get the 
 money " changed," but in failing to return it, and in appropri- 
 ating it to his own use. Doubtless his own convenience re- 
 quired that it be " changed." The only other affidavit is that 
 of plaintiff' in error, that he was intoxicated, and, by reason 
 thereof, oblivious of all he did in regard to this money. "Waiv- 
 ing comment upon some inconsistencies and improbabilities in 
 this affidavit, we deem it sufficient to say the court below as- 
 signed plaintiff in error counsel for his defence who, we must 
 23resume, was fully competent to the duty assigned him. 
 Neither plaintiff in error nor that counsel deemed it advisable 
 to introduce plaintiff in error, or any other witness, to make 
 that proof upon the trial, nor was a continuance asked to ob- 
 tain evidence in that regard. We can not permit the compe- 
 tency of counsel to defend persons charged with crime to be 
 thus introduced as in issue on motion for a new trial. 
 
 Perceiving no error in the record, the judgment is affirmed. 
 
 Judgment affirmed. 
 
 Note — In Justices, etc. v. People ex rel., Henderson, 90 N. Y., 13, 
 the relator, a saloon keeper, received a twenty dollar gold coin from a 
 customer, to be changed for twenty-five cents due the relator, from the 
 customer, relator not having sufficient change in his place of business, at 
 the request of the customer, took the coin and stepped out to obtain 
 change elsewhere, and did not return, but lost the twenty dollars gamb- 
 
Reg. v. Bird. 163 
 
 ling. Upon these facts the Court of Appeals held, that a conviction for 
 larceny was right. 
 
 In Hildebrand v. People, 56 N. Y., 394, the prosecutor handed the pris- 
 oner, who was a bar-tender in a saloon, a fifty dollar bill to take ten cents 
 out of it, in payment of a glass of soda. The prisoner put down a few 
 coppers on the counter, and when asked for the change, he took the pros, 
 ecutor by the neck and shoved him out doors and kept the money. 
 
 Upon these facts the defendant was convicted of larceny. 
 
 For the prisoner it was insisted that the facts did not warrant the con- 
 viction. 
 
 In sustaining the conviction. Church, C. J., suid: 
 
 " When the possession and property are delivered voluntarily, with- 
 out fraud or artifice to induce it, the animus furandi will not 
 make it larceny, because in such a case there can be no trespass, and 
 there can be no larceny without trespass. 43 N. T., 61. But in this case 
 I do not think the prosecutor should be deemed to have parted either 
 with the possession of or property in, the bill. It was an incomplete 
 transaction to be oonsuramated in the presence and under the personal 
 control of the prosecutor. There was no trust or confidence reposed in 
 the prisoner, and none intended to be. The delivery of the bill, and the 
 giving change, were to be simultaneous acts, and until the latter was paid, 
 the delivery was not complete. The prosecutor laid his bill upon the 
 counter, and impliedly told the prisoner that he could have it upon deliv- 
 ery to him of $49.90. Until this was done, neithei possession nor property 
 passed; and in the meantime, the bill remained in legal contemplation 
 under the control and in the possession of the prosecutor." 
 
 Reg. v. Elizabeth Bied. 
 
 (13 Cox's Criminal Cases, 257.) 
 
 Larceny. — The indictment charges the stealing of "nineteen shillings 
 in money," of the money of Maria Lovell. It was proved that Maria Lov- 
 ell got into a merry-go-round at a fair, and handed the prisoner a sovereign 
 in payment for the ride, asking her to return the change. The prisoner 
 thereupon handed to said Maria Lovell lid., and said that she would give 
 her the rest of the change when the ride was finished, as the '• merry-go- 
 round " was then about to start. After the ride was over, the prisoner said 
 Maria Lovell had only given her Is. for which she had given the proper 
 
164 Phalen's Criminal Cases. 
 
 change, and declined lo give any more. Held, ttiat the prisoner could not 
 be convicted for stealing the 19s., for she had not taken them from the 
 prosecutrix. 
 
 Case reserved for the opinion of • this court at the General 
 Court of Quarter Session for the county of Buckingham, 
 holden at Aylesbury, in the said county, on the 15th of Oct- 
 ober, 1872. 
 
 Elizabeth Bird was tried upon an indictment, which charged 
 that she, the said Elizabeth Bird, " on the 12th of October, 
 1872, 19s. in money, of the money of Maria Lovell, feloni- 
 ously did steal, take, and carry away against the peace of our 
 Lady the Queen, her crowned and dignity." 
 
 It was proved that the said Elizabeth Bird was the daughter 
 of a man who traveled about to fairs with a shooting gal- 
 lery, and a merry-go-round, or revolving velocipede machine, 
 for riding, on which he made a charge of Id. to each person 
 for each ride. 
 
 On the day in (question, the said Maria Lovell got into the; 
 " merry-go-round," which was then in charge of Elizabeth 
 Bird, and handed to the said Elizabeth Bird a sovereign in pay- 
 ment for the ride, asking her to give her the change. The said 
 Elizabeth Bird thereuijon handed to the said Maria Lovell lid., 
 and said that she would give her the rest of the change when 
 the ride was finished, as the merry-go-round was then about to 
 start. The said Maria Lovell assented to this, and about ten 
 minutes after, when the ride was over, she found the said Eli- 
 zabeth Bird attending to the shooting gallery, and asked her 
 for her change, to which the said Elizabeth Bird replied that 
 she had only received from her Is., for which she had givem 
 the proper change, and she declined to give any more. 
 
 Upon these facts, it Avas contended by the counsel for the 
 prisoner, first, that the prisoner could not be convicted of 
 stealing the 19s., because no specified 19s. had ever been ap- 
 propriated as the change for the sovereign handed to the pris- 
 oner, nor had there been a taking, either actual or constructive, 
 of the 19s. from the said Maria Lovell; secondly, that under 
 the above form of indictment, the prisoner could not be con- 
 victed of stealing the sovereign; and that even if the indict- 
 ment was sufficient, there was no evidence of a felonious takings 
 
Keu. v. BiRi). 165 
 
 of the sovereign, as it was not taken from Maria Lovell ; and 
 further, that the prisoner could not be convicted of larceny of 
 the sovereign, as a bailee, because, assuming that there was any 
 evidence of a bailment, which was denied, the bailment was 
 not to re-deliver the same money which was delivered to the 
 prisoner. 
 
 I overruled the objections, and directed the jury that if they 
 were satisfied that the said Maria Lovell gave the prisoner the 
 sovereign, and that she knew it, and wilfully refused to give the 
 said Maria Lovell the remainder of the change, they might 
 properly convict the prisoner of stealing the 19s. 
 
 The jury having returned a verdict of guilty, I reserved the 
 above points for the consideration of the Court for the consid- 
 eration of Grown Cases Reserved, and judgment was in the 
 meantime postponed and the prisoner admitted to bail. 
 
 The question for the opinion of the Court is, whether under 
 the circTimstances above stated, the prisoner was properly con- 
 victed on the above indictment. 
 
 Dated this eleventh day of E"ovember, 1872. 
 
 [Signed.] Buckingham and Chandos, 
 
 Chairmen of the above Court of Quarter Sessions. 
 
 The case was first argued in the Court for the Consideration 
 of Crown Cases reserved, before Kelly, C. B., Martin, B., and 
 Brett, Grove, and Quain, J. J., who directed it to be argued 
 before all the judges. 
 
 Graham, for the prisoner. The conviction cannot be sup- 
 ported. First, there was no larceny of the sovereign, because 
 the prisoner was not bound to return it to the prosecutrix. To 
 make the prisoner a fraudulent bailee, she must have been 
 bound to return the sovereign in specie. Ey v. Garrett, 2 Fos. 
 & Fin., 14; Eeg. v. Hoare, 1 Fos. & Fin., 647. 
 
 [Blackbuen, J. May the prisoner not have been a bailee 
 of the sovereign subject to her right of lien on it for Is ?] Not 
 here, as the sovereign was handed to the prisoner with the in- 
 tention that it should become her property, and credit was 
 given to her for the change. [Cookburn, C. J. Was there 
 any intention to part with the sovereign ?j It is submitted that 
 
166 Phalen's Oeiminal Cases. 
 
 there was. Eex. v. Thomas, 9 Car. & P., 741 ; Eex v. Harvey, 
 1 Leach C. C, 467; Perke's case, 3 East P. C, 671; Reg. v. 
 Oliver, Bell C. C, 287; 8 Cox C. C, 384; Eeg. v. Prince, 11 
 145; L. Eep. C. C. R., 150; Walsh's case, Riiss, & Ry., 215; 
 Reg. V. Reynolds, 2 C. C, 170; Rex. v. Nicholson, 2 Leach 
 C C, 610. If the prosecutrix intends to part with the prop- 
 erty, the mere fact that the possession was obtained by a fraud 
 does not make the offence larceny. Rex. v. Jackson, 1 Mood. 
 C. C, 119; Rex. v. Atkinson, 2 East P. C, Cap. 16, Sec. 104; 
 Reg. V. North, 8 Cox C. C, 433; Reg. v. Williams, 7 Cox C. 
 C, 355; Eeg.v. M'Kale, 37 L. J. 97, M. C; 11 Cox C.C.,32. 
 [CocKBUEN, C. J. Suppose the prosecutrix never intended to 
 part with the property in the sovereign until she got the 19s 
 changed? Mellor, J. Was there a voluntary parting with her 
 entire interest in the sovereign? Blackbuen, J. The prosecu- 
 trix never thought of giving the prisoner credit for the 19s. 
 [Kelly, C. B. The real question is, was this but one transac- 
 tion, a few minutes elapsing while the machine was going 
 round is immaterial.] It is contended that the property in the 
 sovereign was parted with, and that the prosecutrix could not 
 have maintained an action to recover it, as she never intended 
 to have that sovereign returned to her. Secondly, the convic- 
 tion for stealing 19s., as alleged in this indictment, cannot be 
 sustained. Before the 14 and 15 Vict. c. 100, s. 18, it was 
 necessary to allege in the case of money stolen the specific coins, 
 and it was customary to charge the stealing of so many pieces 
 of the current coin of the realm called sovereigns, shillings,, 
 etc., as the case might be, and it was necessary to prove that 
 some one of the specific coins alleged was stolen. To remove 
 difliculties that had arisen on this state of the law, sec. 18 en- 
 acts that " in every indictment in which it shall be necessary 
 to make any averment as to any money, etc., it shall be suffici- 
 ent to describe such money, etc., simply as money, without al- 
 leging so far as regards the description of the property, speci- 
 fying any particular coin, and such allegation, so far as regards 
 the description of the property, shall be sustained by proof of 
 any amount of coin, although the particular species of coin of 
 which such amount was composed shall not be proved. Now, 
 under the allegation of stealing 19s. in this indictment, the 
 
Reg. v. Eiku. 167 
 
 prisoner could not be convicted of stealing a sovereign. That 
 was a varience. The prosecutrix was bound to prove that shil- 
 lings had been stolen. Having particularized the money- 
 stolen, it should have been proved shilling-pieces were stolen. 
 [Geove, J. The allegation is not nineteen pieces of the cur- 
 rent coin called shillings, but 19s. in money. [Blacicbuen, J. 
 That means, I should say, money to the value of 19s.J The 
 word shillings must be taken as descriptive of the thing stolen, 
 and must be proved. Archb. Crim. Pleadings, 190, (edit., 
 1862); Eeg. v. Deeley, 1 Moo. C. C, 303; E,eg. v. Owen, 1 
 Moo. C. C, 118; Reg. v. Craven, Russ. & Ry., 46; Reg. v. 
 West, Dears. & B., 109; 7 Cox C. C, 183; Reg. v. Bond, 1 
 ■Den. C. C, Reg. v. Jones, 1 Cox. C. C, 105. 
 
 ]Sb counsel appeared for the prisoner. 
 
 The judges retired to consider, and on their return into court. 
 
 CooKBUEN, C. J., said: The majority of the judges are of 
 opinion that the prisoner was not properly convicted of steal- 
 ing the 19s. charged in the indictment, for she had not taken 
 them from the prosecutrix, and could not therefore be con- 
 victed on this indictment. The majority of the judges do not 
 say that she might not have been convicted on an indictment 
 charging her with stealing the sovereign if the issue had been 
 properly left to the jury. Upon the present indictment, how- 
 ever, she must be discharged. 
 
 Conviction quashed. 
 
168 Phalen's Ceiminal Cases. 
 
 Keg. v. Slowly & Humphrey. 
 
 (13 Cox's Criminal Cases, 369.) 
 « 
 Labceht. — The prisoners purchased onions from the prosecutor upon 
 an agreement to pay money for them. The onions were delivered and 
 received by the prisoners who refused to pay for theoi or to return them ' 
 to the prosecutor. The jury found that they never intended to pay for 
 the onions, and that the fraud was meditated by them from the very first 
 to get possession of the property. Held, that a conviction of larceny was 
 right. 
 
 Case reserved for the opinion of this court by Mr. Justice 
 Byle. 
 
 The prisoners at the last "Winter Assizes for the county of 
 Sussex, at Lewes, were jointly indicted for stealing onions. 
 
 The prosecutor, having , a cart loaded with onions, met the 
 prisoners, who agreed to buy all the onions at a certain price, 
 viz : £3 16s. for ready money, the prisoners saying : " You 
 shall have your money directly the onions are unloaded." 
 
 The onions were accordingly unloaded by the prosecutor 
 and the prisoners together, at a place indicated by the 
 prisoners. 
 
 The prosecutor then asked for his money. The prisoners 
 thereupon asked for a bill, and the prosecutor made out a bill 
 accordingly. One of the prisoners said they must have a 
 receipt from the prosecutor, and in the presence of the other 
 made a cross upon the bill, put a penny postage stamp on it, 
 and then said they had a receipt, and refused to restore the 
 onions or pay the price. 
 
Reg. v. Slowly & Humpiikey. 169 
 
 The next morning tlie prisoners offered the onions for sale 
 at Hastings. 
 
 The jury convicted both the prisoners of larceny, and said 
 they found that the prisoners never intended to pay for the 
 onions, and that the fraud was meditated by both the prisoners 
 from the beginning. The prisoners' counsel insisting that 
 under these circumstances there was no larceny, I reserved the 
 point for the decision of the Court of Criminal Appeal. 
 
 [Signed,] J. Baenaed Byles. 
 
 Willoughby, for the prisoners. The prisoners, were not 
 properly convicted of larceny, for the prosecutor gave credit 
 to the prisoners for the £3 16s., and delivered the onions to 
 them oh such credit. 
 
 Kelly, C. B. What credit was given? The case is like 
 Eeg. V. McGrath, 39 L. I. 7, M. C; 11 Cox C. C. 347. This 
 is a different case. There the money was obtained against the 
 will of the ovsmer. Here the onions were unloaded by the 
 prosecutor. Moreover, it was proved, though not stated in 
 the case, that the prosecutor called on the prisoners in the 
 evening for the money. 
 
 The learned counsel then cited 2 East P. C. 669 (edit. A. 
 D. 1805), and the cases of Rex. v. Harvey, and 'Reg. v. Nich- 
 olson, there cited. Also Rex. v. Oliver, 2 Leach, 1072; R. v. 
 Adams, 2 Rus. on Crimes, 209; Tooke v. H.ollinsworth, 5 T. 
 R., 231, Buller, J.; Reg. v. Small, 8 C. & P., 46; Reg. v. 
 Stewart, 1 Cox C. C. 174; Eeg, v. McKale, 37 L. I., 97, M. 
 C; llCoxC. C. 32. 
 
 Pocock, for the prosecution, was not called upon to argue. 
 
 Kelly, C. B. I am of opinion that the conviction should 
 be affirmed. If in this case it had been intended by the piros- 
 ecutor. to give credit for the price of the onions, even for a 
 single hour, it would not have been larceny, but it is clear that 
 no credit was given, or ever intended to be given. Any idea 
 of that is negatived by the statement in the case that the pris- 
 oners agreed to buy for ready money. In all such sales the 
 delivery of the thing sold, or of the monej-, the price of the 
 
170 Phalen's Cbiminal Cases. 
 
 thing sold, must take place before the other, i. e., the seller 
 delivers the thing with one hand while he receives the money 
 with the other. JSTo matter which takes place first, the tran- 
 saction is not complete until both have taken place. If the 
 seller delivers first before the money is paid, and the buyer 
 fraudulently runs off with the article, or if, on the other hand, 
 the buyer pays first and the seller fraudulently runs off with 
 the money without delivering the thing sold, it is equally 
 larceny. 
 
 Melloe, J. I am of the same opinion. The prisoners 
 obtained possession of the onions by a trick, and never intend- 
 ed to pay for them, as the jury found. From the very first 
 they meditated the fraud to get possession of them, which puts 
 an end to any question of its being larceny or not. 
 
 PiGOTT, B. The facts are that the prosecutor never intended 
 to part with the possession of the onions 'except for ready 
 money. He did part with the possession to the prisoners, 
 who obtained the possession by fraud. The prisoners then 
 brought in aid force to keep possession, and refused to restore 
 the onions or pay the price. Therefore, the possession was 
 obtained against the will of the prosecutor. 
 
 Denman, J., and Pollock, B., concurred. 
 
 Conviction affirmed. 
 
Loojviis y. i*EOi'i,K. 171 
 
 LooMis V. People. 
 
 (67 N. y., 332.) 
 
 Larceny. — Where two conspired together to fraudulently obtain the 
 money of another, and in pursuance of the conspiracy threw dice, and 
 one of them, apparently losing, persuades the prosecutor to let him have 
 his money to bet on the game, on the false assurance that he would win 
 and would give it back immediately, and that he had a check for $500 in 
 his pocket which he would get changed and repay the money if he lost, 
 and the money was apparently lost, and the confederates disappeared with- 
 out repaying the money so obtained. Held, that the two thus conspiring 
 were guilty of larceny. 
 
 Miller, J. The prosecutor was induced to place his money 
 upon a game of hazard, upon the assurance of Lewis, one of 
 the prisoners, that he was to win, and he would have his money 
 back, or that, in case of loss, other money would be procured 
 upon a check which Lewis claimed to have in his possession, 
 and paid in place of that lost. 
 
 It is evident that the prisoner Lewis and his confederate 
 Loomis conspired fraudulently and feloniously to procure the 
 money of the prosecutor, and by means of a trick and device, 
 succeeded in converting it to their own use. Upon the facts 
 proven, the question to be determined is whether a case of 
 larceny is established. The jury have found that it was the 
 intention of the prisoners to convert the money without the 
 consent and against the will of the prosecutor, and that he did 
 not intend to part with his property. I think that the conclu- 
 sion at which they arrived was abundantly warranted by the 
 
172 FiiALKx's Okimikal Oases. 
 
 evidence, and the conviction of the prisoners can be upheld 
 upon well-established legal grounds. It is contended that the 
 conviction was erroneous, because the prosecutor voluntarily 
 parted with his money, not expecting to receive back the same 
 bills, but others in their place, and hence the crime was not 
 made out. It must be conceded that, in order to establish the 
 ojBEense of larceny, there must be a trespass, and without this 
 element the offense is not complete: 1 Plawk. PL Cr., section 
 1, p. 108; 3 Russ. on Crimes (5th Amer. ed.), 85; McDonald 
 V. The People, iP, JST. T., 61; Hildbrand v. The People, 66 Id., 
 394. Even although the owner is induced to part with his 
 property by fraudulent means, yet if he actually intended to 
 part with it, and delivers up possession absolutely, it is not 
 larceny: People v. Smith, 53 N. Y., 111. 
 
 In this case, considering the circumstances, it cannot be 
 deemed, we think, that the j^rosecutor intended to part with 
 the possession or ownership of the money. It was handed 
 over for a particular purpose, with no intention to loan it, or 
 absolutely to surrender the title, and it was only in case of its 
 loss that other money was to be procured upon the check, 
 which the prisoner Lewis claimed to have in his possession. 
 The prosecutor then had parted with no absolute right to the 
 same, nor transferred any title to the bills before the contin- 
 gency of the loss occurred, and the use of the money was but 
 temporary, and for a specified object. Certainly, when it ap- 
 peared that no loss had happened, the temporary possession was 
 at an end, and to all intents and purposes the money reverted 
 to the prosecutor. The alleged loss, brought about by the 
 criminal and fraudulent conduct of the prisoners, could not 
 change the title, or in any way transfer the ownership to them. 
 They did not thereby acquire any right, and it cannot seriously 
 be questioned that at this time, if not before, the prosecutor 
 woiild have been justified in taking the money forcibly, or 
 could have maintained an action for the recovery of the same 
 identical bills. It was his money, and the conversion of it by 
 the prisoners, before it was M^on, was without a semblance of 
 lawful authority, and, as the jury had found, with a felonious 
 intent. 
 
 It was a clear case of larceny, as marked and significant in 
 
LooMis v.- People. 173 
 
 its general features as if the prisoners had wrongfully seized 
 and appropriated it when first produced. The form of throwing 
 the dice was only a cover, a device and contrivance to conceal 
 the original design, and so long as there was no consent to part 
 with the money, does not change the real character of the 
 crime. While the element of trespass is wanting, and the 
 offense is not larceny, where consent is given, and the owner 
 intended to part with his property absolutely, and not merely 
 with a temporary possession of the same, even although such 
 consent was procured by fraud, and the person obtaining it had 
 an animns furandi, yet, as is well said by a writer upon crimi- 
 nal law: — 
 
 " It is different where, with the animus furandi a person 
 obtains consent to his temporary possession of property, and 
 then converts it to his own use. The act goes further than the 
 consent, and may be fairly said to be against it. Consent to 
 deliver the temporary possession is not consent to deliver the 
 property in a thing, and if a person, animus furandi, avail 
 himself of a temporaiy possession for a specific purp()se, ob- 
 tained by consent to convert the property in the thing to him- 
 self, and defraud the owner thereof, he certainly has not the 
 consent of the owner. He is, therefore, acting against the will 
 of the owner, and is a trespasser, because a trespasser upon the 
 property of another is doing some act upon the property against 
 the will of the owner." 
 
 In the case at bar there was no valid agreement to part with 
 the money absolutely, and no consent to divest the owner of 
 his title. 
 
 It was passed over for a mere temporary use at most, and 
 the legal title remaining in the owner, the conversion of it by 
 the prisoners, within the rule cited, was larceny. The reports 
 are full of familiar illustrations of this rule, as a reference to 
 some of the leading cases will show. In Hildebrand v. The 
 People, supra, a fifty -dollar bill delivei-ed to the prisoner, to 
 pay ten cents and return the change, was kept by him, and it 
 was held to be larceny. It was intended that after taking out 
 the ten cents other money should be exchanged, and to this 
 extent and for this purpose the prisoner had lawful possession of 
 the money. In that case, as here, the money was not absolutely 
 
174 Phalen's Criminal Cases. 
 
 parted with, but surrendered for a specific purpose, and the 
 custody temporarily transferred. It is true that in the case 
 last cited, the delivery was held not to be complete until the 
 change was returned, but that does not alter the principle when 
 there was but a temporary possession, as there was no transfer 
 of the ownership. See, also, McDonald v. The People, supra. 
 Nor does it change the aspect of the case when by trick or 
 device the owner is induced to part with the custody or naked 
 possession of property for a special purpose to one who receives 
 it animus furandi, and still means to retain a right of prop- 
 erty: Smith V. The People, 53 IST. Y., HI. In Rex v. Karner 
 1 Leach, 305, where the prosecutor was decoyed into a public 
 house, and money obtained from him for the purpose of play- 
 ing at cards, and appropriated by the prisoners, it was held that 
 if there was a preconcerted plan to obtain the money, and an 
 animus furandi, it was felonious. This case is analogous and 
 directly in point, and it is diificult to draw any distinction be- 
 tween the case cited and the case at bar, as there was quite 
 as strong grounds for finding the felonious intent in the latter 
 case as in that cited. 
 
 In Rex V. Eobson, P. & P. C. C, 413, where there was a 
 plan to cheat the prosecutor out of his property under color of 
 a bet, and he parted with the possession only to deposit it as a 
 stake with one of the confederates, the taking was held to be 
 felonious. This case is directly in point, and as a decision by 
 the twelve judges is entitled to great weight. The cases re- 
 ferred to, without citing others which bear in the same direc- 
 tion, are sufticient to sustain the conviction, and the cases 
 which have been cited as upholding the principle that there 
 was no such parting with the property as to constitute larceny, 
 do not, I think, go to the extent which is claimed. After a 
 careful examination, without considering them in detail, sufiice 
 it to say, that perhaps a single exception Peg. y. Thomas, 9 C. 
 & P., 741, which was a nisi prius decision, and is criticised in 
 the opinion in Hildebrand v. The People, they are all clearly 
 distinguishable from the case now considered, and the weight 
 of authority is decidedly in an opposite direction. 
 
 There is, to be sure, a narrow margin between a case of larc- 
 eny and one where the property has been obtained by false pre- 
 
LociMis V. Peoit.e. 175 
 
 tenses. The distinction is a very nice one, but still very im- 
 portant. The character of the crime depends upon the inten- 
 tion of the parties, and that intention determines the nature of 
 the offense. In the former case, where, by fraud, conspiracy, 
 or artifice, the possession is obtained with a felonious design, 
 and the title still remains in the owner, larceny is established. 
 While in the latter, where title, as well as possession, is abso- 
 lutely parted with, the crime is false pretenses. It will be ob- 
 served that the intention of the owner to part with his prop- 
 erty is the gist and essence of the offence of larceny, and the 
 vital point upon which the crime hinges, and is to be deter- 
 mined. Although the present case is on the border line, yet it 
 is quite clear that it was, as the evidence stood, a fair question 
 for the jury to decide as to the intent of the prisoners feloni- 
 ously to take the money, and as to the intention of the prose- 
 cutor, to part with the ownership of the same. 
 
 These questions were fairly submitted by the judge to their 
 consideration, and as there was no error in the charge, or in 
 any other respect on the trial, the conviction must be affirmed. 
 
 All concur; Rapallo, J., absent. 
 
 Judgment affirmed. 
 
 Note.— In Smith v. People, 53 N. Y., 111. Smith, the plaintift in error, 
 called upon one Sarah March, and informed her that her husband, Charles 
 March, was arrested and locked up on a charge of striking a man over the 
 head with a chair, and that her husband had sent him to her to get some 
 money, and unless she sent it he would be locked up all night Not hav- 
 ing any money, and, upon the solicitation of the prisoner, believing his 
 statements to be true, she gave him a watch, chain and a locket or cross, 
 and two dollars in money, belonging to her husband, which property he 
 vpas to pawn and give the ticket and money to her husband. The state, 
 ment of the prisoner was false. Charles March, the husband, never had 
 been arrested, never sent him for any money, and did not know him. The 
 plaintiff in error appropriated the property so obtained to his own use. 
 
 The plaintiff in error was convicted of larceny, and the Court of Ap- 
 pe lis sustained the conviction. 
 
 Allen, J. said : " The accused obtained the custody of the chatties and 
 money of the prosecutor from his wife by a fraudulent device and tricks. 
 and for a special purpose, connected with the falsely represented neces- 
 sities of the owner, with the felonious intent to appropriate the same to 
 his own use. He did not pawn or pledge the goods, as he proposed to do, 
 but did appropriate the same to his own use, in pursuance of the feloni- 
 
176 Phalbn's Oeiminal Casks. 
 
 ous intent with which he received Ihera. This constitutes the crime of 
 larceny. 
 
 " The owner did not part with the property in the chatties, or transfer 
 the legal possession. Tlie accused had merely the custody ; the possession 
 and ownership remaining in the original proprietor. 
 
 " The rule is, that when the delivery of goods is made for a certain 
 special and particular purpose, the possession is still supposed to residei 
 not parted with, in the first proprietor. 
 
 Kegina v. De Banks. 
 
 (Court of Criminal Cases Reversed, May 1884.) 
 
 Larceny as Bailee. — The prisoner was engaged by the owner of a 
 horse to look after it for a few days with authority to sell it. He sold it 
 for £15. The owner having sent his wife to receive the money the pris- 
 oner showed her a check, but refused to pay it over, saying that he would 
 go to the bank to cash it. He came out of the bank and said they would 
 not cash it. Being again asked to hand it over, he ran away. Upon 
 these facts a conviction of larceny was sustained. 
 
 The prisoner was indicted at the Shropshire Quarter Sessions 
 for embezzling the money of his employer. 
 
 The evidence, so far as it is material to the point reserved, 
 was as follows: 
 
 Joseph Sake, the prosecutor, proved: On the 11th day of 
 January I drove a chestnut mare into Chester with prisoner ; I 
 left her at Mr. "Wild's ; I engaged the prisoner to look after 
 her ; I said to him, " Do the mare well, and I will be here on 
 Wednesday morning and will pay you for your work." He 
 was to have charge of her until I came ; I told him to pay for 
 the keeping till I came; I meant him to look after her 
 altogether; I should not have objected to his doing anything 
 else; on Saturday, January 12th, I saw prisoner; I asked him 
 how the mare looked, and he said she was as lame as a cat; he 
 
Regin.v v. De Banks. 177 
 
 said he had removed her to his father's house; I said I should 
 be at Chester by the first train ; I told him the mare should be 
 sold on the Wednesday morning when I went, as she would 
 not do for use; I sent my wife on that morning; I have never 
 received a farthing from prisoner on account of the mare. 
 
 Annie Suker, wife of prosecutor, proved: I went to Whit- 
 church on the 16th of January; I saw prisoner in the street; 
 I asked him if he had sold the mare; he said he had not; I 
 went with him to Wild's stable; saw the mare taken out of the 
 stable in the street; prisoner was riding the mare about the 
 fair; Mr. Foster bought her; prisoner, Mr. Foster and Arthan 
 went to the Queen's Head together; I was outside the door 
 and watched; I saw Foster give prisoner some money; prisoner 
 came out and showed me a check; he did not give it to me; 
 he said we would go to the bank and get it cashed; I asked him 
 for it several times, but he would not part ; he told me he had 
 sold the mare for £13; he came out of the bank and said they 
 would not cash him the check; I asked him to give it to me, 
 and said I would pay his expenses ; he would not do so ; I said 
 he must come with me to Whitchurch, and I must have either 
 the money or the mare ; I had great difficulty in getting him 
 to the station ; at Whitchurch, when we got to the gasworks, 
 he bolted down a little alley which leads to the canal ; I ran 
 after him and called, but he did not answer ; I have never re- 
 ceived any money for the mare. 
 
 Joseph Axthan proved the sale of the mare by the prisoner 
 to Foster, and payment of £15 to the prisoner. 
 
 Robert Thomas, sergeant of police, proved that the prisoner 
 absconded from Whitchurch on the 18th of January. The 
 prisoner was arrested at Chester on the 31st of January. 
 
 The chairman held there was no evidence to go to the jury 
 of the defendant's employment as a servant, so as to make him 
 guilty of embezzlement. It was then contended, on behalf of 
 the defendant, that there was no evidence of the larceny of 
 £16. The case was left to the jury, who found " that the pris- 
 oner had authority to sell the mare, and had converted the 
 money to his^own use," and a verdict of " guilty of larceny," 
 was recorded. 
 
 The question reserved for the opinion of the court was 
 12 
 
178 Phalen's Geimixal Cases. 
 
 whether there was any evidence of larceny which could prop- 
 erly have been left to the jury. 
 
 Lord CoLEBiDGE, 0. J. I think this conviction may be sup- 
 ported. There may be considerable room for doubt whether, 
 under the circumstances, the prisoner \vas not intrusted as a 
 servant; but we have not now to consider this point, the 
 chairman having ruled otherwise, and the jury having not had 
 the question left to them. The only point remaining is 
 whether there is any evidence of larceny. I think the effect 
 of the evidence is that the prisoner was there to see the mare, 
 and receive the money for the prosecutor if he were present, 
 and, if not present, then to sell and hold tli^ money for him 
 or his agent until he should come. I hold that the prisoner 
 was a bailee of the money for the wife, who attended as agent 
 for the prisoner. She demanded the money, the prisoner 
 refused, and tliereu])on the case falls directly witliin the words 
 of the statute. 
 
 Geove, J. I am not free from doubt as to whether the 
 prisoner was in position as bailee ; although the evidence is 
 ample that he took the money, yet it is clear that the money 
 was not given to him on behalf of the prosecutor. But I 
 think he is not the less a bailee by reason of his not having 
 received the money direct from the hand of the prosecutor. 
 
 Field, J. I agree, but not without some hesitation, that 
 this conviction ought to be contirmed. The question is 
 whether there was reasonable evidence that the prisoner was a 
 bailee. It is important to note that the sale was for cash, that 
 there had been no previous dealing between the parties, and 
 that the prisoner was not a horse dealer or agent who might 
 probably be justiiied in mixing the money received with his 
 own, as has been in the case of a stock-broker charged with a 
 similar offence. 
 
 A. L. Smith, J. The difference of opinion between the 
 members of the court arises more upon a question of fact than 
 of law. Upon the evidence before us I agree with the major- 
 ity of the Court that the prisoner was rightly e<,invicted as a 
 bailee of the money demanded ol him liy the wife of the 
 prisoner. 
 
 Conviction affirmed. 
 
Baker v. State. ' 179 
 
 J. Dissented, holding that one who received 
 money, with no obligation to return the identical coin, is not a 
 bailee of such coin within the 24 and 25 Yic, c. 96, § 3, under 
 which the prisoner was convicted. 
 
 Note. — It is not material wlietlier the servant be paid by certain wages, 
 or by percentage on the receipts, or by a share of the profits arising from 
 his labor. It is Immaterial, also, whether the employment be permanent, 
 or occasional only, or even confined to tlie particular instant. Arch. 
 Crim. Prac. & PI. (8 ed.) 1347. 
 
 "Who will be considered "officers," " agents," "clerks," and "servants." 
 See Ker. v. People, p. 25; State v. Foster,- p. 54; People v. Dalton, p. 59; 
 Queen v. Foulkes, p. 87; U. S. v. Hartwell, p. 93; People v. Sherman, 
 p. 91. 
 
 Who will not be considered as such, Queen v. Negus, p. 80; State v. 
 Kent, p. 78; People v. Allen, p. 83; U. S. v. Hartwell, p. 93. 
 
 Bakkb v. Statu. 
 (29 Ohio St., 184.) 
 
 Larceny by Findek op Lost Goods. — Where the defendant is charged 
 with the larceny of lost goods, he should be convicted, if it appears that, 
 when he found them, he intended to appropriate them to his own use, 
 having reasonable grounds for believing, at the time of the finding, that 
 the owner could be ascertained. 
 
 The defendant asked for an acquittal on the evidence. His request was 
 refused by the trial court, and the refusal was assigned for error. 
 
 McIlvaine, J. The testimony offered on the trial below 
 shows that on the evening of April 28, 1872, the defendant 
 below, found on a county public road, at Van "Wert count}', a 
 a pocket-book containing one ten-dollar bill, at a point in the 
 road near which he had been engaged at work during the day, 
 and that the goods found had been lost by the owner, Hinton 
 
180 Phalen's Criminal Cases. 
 
 Alden, at that point a few hours before. That Alden, at the 
 time he lost the pocket-book, had been detained at that point 
 for a short time, and within plain sight of the defendant. On 
 the next morning Alden, who lived in the immediate neigh- 
 borhood, informed the defendant of his loss, but defendant 
 concealed the fact of finding, and afterward expended the 
 money in the purchase of clothing. A few days after, the 
 defendant admitted to a witness in the case, that he had found 
 the pocket-book, and that he knew the owner, and on inquiry 
 why he had not returned the goods to the owner, replied, 
 " Finders are keepers." It was also shown by an admission of 
 defendant, that the ajiipearance of the pocket-book at the time 
 he found it, indicated that it had been very recently lost. The 
 law of this case is well stated by Baron Parker, in E.egina v. 
 Thurborn, 1 Dennison C. C, 387; also reported under the 
 name of Eegina v. Wood, 3 Cox C. C, 453, thus : " If a man 
 find goods that have actually been lost, or are reasonably sup- 
 posed by him to have been lost, and appropriates them with 
 intent to take the entire dominion over them, really believing, 
 when he takes them, that the OM'ner cannot be found, it is not 
 larceny. But if he takes, with like intent, though lost, or 
 reasonably supposed to be lost, but reasonably believing that 
 the owner can be found, it is larceny." 
 
 The fact, in this case, that the defendant expended the 
 money after he had certain knowledge of the owner, did not 
 render him guilty of larceny, if the offence was not complete 
 before. The loss and finding of the goods were not disputed 
 in the court below, but the following questions were made : 
 
 1. When the defendant first took the goods upon the find- 
 ing, did he intend to appropriate them to his own use ? This 
 question was fairly found against him, from the fact of con- 
 cealing the finding when informed by the owner of his loss, 
 and from his subsequent declaration that "Finders are 
 owners." 
 
 2. Did he have reasonable grounds to believe, at the time of 
 finding the goods, that the owner could be found ? It was 
 suf&ciently proved that the defendant knew that the goods had 
 been recently lost before the finding, and that Alden had 
 recently been at the point where he found them. These facts 
 
K. V. Lavender. 181 
 
 ' ' constitute reasonable grounds for believing that Alden was the 
 owner. 
 
 Judgment affirmed. 
 
 li. V. Lavandek. 
 
 (3 East's p. C, 566.) 
 
 Larceny.— A servant going off with money wliioli his master had 
 given him to carry to anotlier, and applying it to his own use, is guilty of 
 larceny. 
 
 John Lavender was indicted for larceny at common law of a 
 certain sum of money belonging to John Edmonds. The pris- 
 oner was a servant to Edmonds, who had delivered him the 
 money in question to carry to the house of one Thomas Flawn, 
 and there to leave the same with him, he having agreed to give 
 Edmonds bills for the money in a few days. TTie prisoner did 
 not carry the money to Flawn as directed, but went away with 
 it, purchased a watch and other things with part, and part re- 
 mained in his possession when he was appi-ehended. Being 
 found guilty, sentenced was respited for the opinion of the 
 judges, whether this was a felony or a breach of trust ; and in 
 Easter term, 1793, all the judges held this was a felony, and 
 that .the last point in Watson's case above referred to was not 
 law. In Trinity term following, this case was again under the 
 consideration of the judges; when they adhered to their former 
 opinion: and some said that the distinction between this case 
 and Watson's, if there were any, was, that in Watson's case 
 the money was delivered to the prisoner to be paid specifically 
 to another person; but if the prisoner had laid out his own 
 money to the same amount in buying licenses, it would have 
 been a compliance with the order. He was commissioned to 
 merchandize with the money. But they admitted that the dis- 
 tinction, if any, was extremely nice; and BuUer, J. thought 
 there was none: and recognized the case of E.. v. Paradice be- 
 fore Gould, J. as good law. 
 
182 Phalen's Criminal Cases. 
 
 R. V. Fkaxcis Paeadick. 
 
 (2 East's P. C, 565.) 
 
 Larceny. — One employed as a clerk in the day time, but not residing 
 In the house, embezzled a bill of exchange, which he received from liis 
 master in the usual course of business with directions to transmit it by 
 the post to a correspondent. Held larceny. 
 
 Francis Paradice was indicted for stealing a bill of exchange 
 of £100 value, the property of "William Periam. The prose- 
 cutor to whom the bill was indorsed was a draper at Devizes, 
 and the prisoner, who was his book-keeper, on salary, kept his 
 accounts, and received and paid money for him, but did not 
 live in his house ; but came every day there to transact his busi- 
 ness. The prosecutor delivered the bill in question, with 
 several others, to the prisoner, and ordered him to send them 
 by that day's post as he had often done before, from the Dev- 
 izes to the prosecutor's bank in London, as cash to be accounted 
 for to the prosecutor. The prisoner next dnj asked the prose- 
 cutor's leave to go to a town in the neighborhood, which was 
 consented to on condition that he returned the next day b}'' 12 
 o'clock. The prisoner went to Salisbury, got cash for the bill, 
 which was endorsed by the prosecutor, and next day the pris- 
 oner, was ajjprehended at Exeter, with part of the bill and the 
 money. 
 
 Gould, J., before whom he was tried and convicted, respited 
 judgment to take the opinion of the judges whether this were 
 felony or a breach of trust. In Easter term, 1766, all the 
 judges, except Lord Camden, who was absent, held it larceny, 
 upon the principle that the possession still continued in the 
 master. 
 
Nichols v. The People. 183 
 
 Andrew J. J^ioiiols v. The People. 
 (17 N. Y., 114.) 
 
 Larceny. — It is the sepiratioa of aay article conveyed ia bulk, by a 
 carrier, from the whole, which constitutes the dlatiuotion between larceny 
 and embezzlement, and this rule applies to pig iron, which is transferred 
 by the hundred pounds, or by the ton. 
 
 The above rule might bi otherwise in the cav, of articles having a sep- 
 arate identity, as barrels of flour, saw logs and the like. 
 
 Andrew J. ITichols, the plaintiff in error, was indicted for 
 larceny of pig iron. In December, 1856, he was tried at the 
 Erie Oyer and Terminer, and was acquitted, on the ground that 
 the ofEence in the indictment was not larceny, but embezzle- 
 ment. He was then indicted for embezzling the same iron. 
 
 The defendant pleaded: 1, Not guilty. 2, The previous 
 acquittal. 3, The former trial and acquittal setting forth the 
 former proceedings, including the indictment, averring that 
 the offence charged in the two indictments were one, and the 
 same offence, and not other and different offences. 
 
 The People took issue on the second, and demurred to the 
 third plea, and the demurrer was sustained by the court. 
 
 The prisoner being convicted, sued out a writ of certiorari^ 
 by which the proceedings were removed into the Supreme 
 Court, where it was held that there was no error in the convic- 
 tion for embezzlement. The case was then removed, by writ 
 of error, to the Court of Appeals. 
 
 The prisoner was master and owner of a canal boat, and a'fe 
 siich, agreed with the owner of certain pig iron, to transport the 
 same from Albany to Buffalo. Before reaching Buffalo the 
 prisoner landed his boat in the night time, and put off one 
 
184 Phalen's Criminal Oases. 
 
 hundred bars or pieces of the pig iron, each bar weighing about 
 one hundred pounds, and all of the value of one hundred and 
 seventy -five dollars. The balance of the iron was delivered at 
 Buffalo. At the close of the peoples' proof, the defendant 
 moved for his discharge, on the ground that the evidence 
 showed that the ofEence was larceny, and not embezzlement as 
 charged. The motion was denied and the prisoner excepted. 
 
 William Dorshimer, for the plaintiff in error. 
 
 Albert Sawin, for The People. 
 
 Peatt, J. It was conceded ujDon the argument in this case, 
 that if the evidence upon the trial at the Oyer and Terminer . 
 established a case of larceny, the conviction was wrong. The 
 simple question for our examination, therefore, is whether the 
 separation of a portion of the iron from the whole, and the 
 felonious conversion of it, constituted larceny. 
 
 At common law it is well settled that if a carrier or othei- 
 bailee opens a bale or package of goods, or pierces a vessel of 
 wine, and takes away and disposes of part of it, it is larceny, 
 although if he has disposed of all of it, it is a breach of trust 
 merely, Arch. Or. PL, 384; East's Or. L., 697; under this it 
 has been held that taking an entire bale from several would 
 not constitute the offense, 5 Garr. v. Payne, 533. Various 
 reasons have been assigned by commentators for this distinc- 
 tion, none of which are entirely satisfactory. It has been said 
 to be "such proof of the original felonious intention that it has 
 always been held to be larceny." Kel. 81, 82. As suggested 
 in 2 East's Oriminal Law, p. 697, if taking a part is evidence 
 of the original felonious intent, no less, surely, would the 
 taking of the whole be. Again, it is said by Blaokstone, that 
 if a carrier opens a bale or pack of goods, or pierces a vessel of 
 wine, and takes away a part, it is larceny, for here the animus 
 furandi is manifest, since he had otherwise no inducement to 
 open the goods. 4 Black., 2HU. 
 
 But the prevailing principle upon which the distinction is 
 placed is, that the act of breaking the package or bales is au 
 act of trespass in the carriei-, by which the privity of contract 
 is determined; and although the principle is said to stand 
 
Nichols v. The Pkoplk. 185 
 
 more upon positive law, not now to be questioned, than upon 
 sound reasoning, 2 East's Cr. L., 695 ; yet it seems to be ad- 
 mitted to be the correct principle in all cases in which the 
 ■question has been canvassed. 1 Hale, 504; 1 Hawk., ch. 3, §§ 
 5, 7; 3 Coke Inst., 107. 
 
 In the ease at bar it is insisted, on the part of the j^eople, 
 that tlie bailee can commit larceny only where he actually 
 breaks a bale or package; that it is this breaking alone which 
 can determine the privity of contract, and render the aspor- 
 tation by the carrier a trespass. Bl^t this, I think, is too nar- 
 row a construction of the rule, and one not sustained by the 
 commentators and adjudications. Any separation of a part 
 from the whole would seem to be as much a trespass as the 
 breaking of a package. Indeed, it is the separation that con- 
 stitutes the trespass. This seems to be conceded iipon the 
 argument in regard to grain and things of that kind, but a 
 distinction was attempted to be drawn between grain and iron 
 in the form of pigs. 
 
 But I am unable to perceive the force of the distinction. 
 What the rule might be in the case of articles having, as it 
 were, a separate identity, like barrels of flour, saw logs and the 
 like, it is not necessary to inquire. In this case, the iron was 
 in a condition in which it is transferred in bulk, by the hun- 
 dred pounds or by the ton, and not by count. Although more 
 readily separated by individual count than the kernels of grain, 
 it is not a subject of trade or commerce by count any more than 
 grain is ; and a separation of part from the rest would seem to 
 be just as much a trespass as the separation of a portion of a 
 load, in bulk, of corn, apples or potatoes, from the whole would 
 be. It is this separation of any article conveyed in bulk, by a 
 carrier, from the whole, which constitutes the distinction be- 
 tween larceny and embezzlement. 
 
 In 2 East's Criminal Law, p. 698, it is said: " The separation 
 of the part of the goods from the rest, with a felonious intent, 
 seems, however, to be material when they are delivered as one 
 entire body or mass, thovigh no case or package be broken, be- 
 cause such an act equally evinces a determination of the privity 
 of the contract." He cites 1 Roll's Abridgment, p. 73, § 16, 
 where it was held that " if a man says to a miller, who keeps 
 
186 Phalen's Oeiminal Cases. 
 
 a corn mill, ' thou hast stolen three packs of meal,' an action 
 lies; for, although the corn was delivered to him to grind, 
 nevertheless, if he steal it, it is felony, being taken from the 
 rest." 
 
 So Hawkixs, book l,ch. 38, says: " Those having possession 
 of goods by the delivery of the party may be guilty of felony 
 by taking away a part thereof with an intent to steal it, as if a 
 carrier open a pack and take out a part of the goods, or a 
 weaver who has received silk to work, or a miller who has corn 
 to grind, take out part with intent to steal it, in which case it 
 may not only be said that such possession of a part, distinct 
 from the whole, was gained by wrong and not delivered by the 
 owner, but that it was obtained basely, fraudulently and clan- 
 destinely, in hopes to prevent its being discovered at all, or 
 fixed upon when discovered." This latter reason, I apprehend, 
 would apply much more forcibly to the separation of a part 
 from the whole when it is in open bull< than when a package 
 is broken open. 
 
 In Rex V. Howell, 7 Carr. & Payne, 32.5, the prisoner was 
 employed to land a boat load of stoves from a ship, and he 
 landed all bu.t two, which he secreted at the bottom of the 
 boat, and one, which he landed, he carried to his mother's 
 house. The court held, in the words of Patteeson, J., that 
 the non-delivery of the two was not larceny, "but the prisoner 
 separating one of the articles from the rest, and taking it to a 
 place different from its destination, was, if he did it with intent 
 to appropriate it to his own use, equivalent to breaking bulk, 
 and therefore would be sufficient to constitute larceny." 
 
 The learned judge who read the opinion in the court below, 
 suggested that the decision of this case might have been based 
 u])on the actual delivery of the stoves at the place of destina- 
 tion and a subsequent asportation, which would C(_)nstitute 
 larceny within all the cases. It is enough that the court in 
 that case did not put their ruling upon any such ground ; and 
 I assume, from tlie remark of Justice Pattkksox, that the 
 stove was taken directly from the boat to the place where it 
 was found, notwithstanding the imperfect statement of the 
 facts which would indicate that it was first landed. 
 
 In Commonweath v. Brown, 4 ilass., ."i.SO, a wagon-load of 
 
Nii'iioi.s V. The Peopi.k. 187 
 
 goods, consisting of several packages, was delivered to be 
 transported from one place to another, and the prisoner fraud- 
 ulently took away one of the packages; it was held to be lar- 
 ceny. This was carrying the rule much farther than is neces- 
 sary in this case, but the court considered that the goods were 
 delivered to the prisoner already loaded, " as one mass or body, 
 and his taking away ohe package was separating a part from 
 the whole, and thus he determined the supposed privity of 
 contract." 
 
 So in Commonwealth v. James, 1 Pick., 375, the same court 
 held that where a miller having received barilla to grind, 
 fraudulently retained a part of it, returning a mixture of 
 plaster of paris, it was larceny. 
 
 The case of Rex v. Madox, 1 Russ. & Ry., 92, was cited in 
 the court below as a case in point against the prisoner. In 
 that case the prisoner, who was the master of a vessel, received 
 two hundred and eighty casks of butter to carry in his ship ; 
 most of the casks were stowed in the hold and battened down, 
 but some were put iipon deck. The master disposed of 
 thirteen of those upon deck upon the voyage. It was held 
 that this was not larceny, although it seemed to be admitted 
 by the court that if the prisoner had broken bulk, by taking 
 the thirteen from those battened down, it would have been 
 larceny. This case, it seems to me, is not in point at all. 
 These casks were delivered to the master by count, and not in 
 bulk, and consequently there was clearly no breaking bulk, no 
 taking part from the whole of the mass or bulk delivered, but 
 it was a mere separation of a number of separate articles from 
 the whole number. The casks were clearly what might be 
 deemed separate packages, as they lay upon tlie deck. But it 
 seems to be conceded that if the master had taken them from 
 those battened down, it would be larceny. 
 
 In the case of Rex v. Fletcher, and others, 4 Oarr & Payne, 
 545, the goods were in p'ackages, and were taken out, but the 
 prisoners were acquitted on the ground that it did not appear 
 that the packages had been broken open while in their posses- 
 sion. If the j)risoner8 had broken open the packages it would 
 have been larceny within all the cases. I do not see, therefore, 
 wherein the case has any bearing upon the point in this case. 
 
188 PhalenV Ckiminal Cases. 
 
 In Eex V. Pratley, 5 Can- & Payne, 533, the prisoner was 
 employed to carry in his cart three trusses of hay, and he took 
 away one of them, which was found in his possession hut not 
 broken up. It was held not larceny. Here there was clearly 
 no breaking bulk. The three trusses were three separate 
 packages, and the conversion of one whole package was held 
 by the court not to be larceny. If the pig iron had been put 
 up in separate boxes, and the prisoner in the case at bar had 
 been indicted for stealing one or more boxes, that case would 
 have been in point. 
 
 I have now referred to the principal cases upon the question, 
 and it seems to me quite clear that this was breaking bulk 
 within the meaning of the rule as established by those cases. 
 The separation of a part from the whole bulk or mass was a 
 trespass, determining the supposed privity of contract; and I 
 think our statute for the punishment of embezzlement is based 
 upon this view of the law. It provides " thtit if any carrier or 
 other person to whom property shall be delivered to be trans- 
 ported for hire shall convert, etc., in the mass, as they were 
 delivered, without breaking the box, trunk, pack or other 
 thing in which they shall be contained, he shall be punished 
 in the same manner as if he had taken, etc., such goods after 
 breaking the trunk, box, pack or other thing cqntaining the 
 same, or after separating any of them from the other." The 
 language of this provision clearly recognizes the separation of 
 a part from the rest as breaking bulk. 
 
 This case turns upon a narrow point, and no actual injustice 
 to the prisoner, perhaps, would be done by affirming tlie 
 judgment below; but our decisions are precedents for future 
 cases, and although this prisoner may go unwhipt of justice in 
 consequence thereof, yet we must propound the law as we find 
 it, whatever the consequences may be in this particular case. 
 
 Skldbn, Eosevklt, Haeeis and Strong, .Is., concurred in 
 this opinion. 
 
 Denio and Comstock, Js., dissented. Judgment reversed, 
 and the discharge of the prisoner ordered. 
 
 Note. — For cases sustaining the distinction between larceny and em- 
 bezzlement, see Com. v. Berry, Ante p. 109; R. v. Bazely, Ante p. 14; R. 
 
Eeg. v. Middleton. 189 
 
 V. Lavender, Ante p. 181; Kribs v. People, Ante p. 18; Simco v. State, 
 Ante p. 20; R. v. Paradice, Ante p. 183; and for cases not observing the 
 distinction, see Kerr v. People, Ante p. 25; Lowenthal v. People, Ante p. 
 138; State v. Foster, Ante p. 54; People v. Dalton, Ante p. 59. 
 
 Reg. v. Middltston. 
 
 (Court of Criminal Appeal.) 
 
 (12 Cox's C. C, 260.) 
 
 Lakcbny.— A depositor in a post-office savings bank presented a war. 
 rant for the withdrawal of 10s., the clerk at the post-offlce, instead of re- 
 ferring to the proper letter of advice for lOs., referred by mistake to a 
 letter of advice for £8. 16s. lOd., which last mentioned sum the depositor 
 received and departed. Upon trial the jury found him guilty of larceny. 
 The case being reserved for the opinion of the court, the conviction was 
 affirmed. 
 
 Case reserved for the opinion of this court by the Deputy 
 Kecorder of London. 
 
 At the session of the Central Criminal Court, held on Mon- 
 day, 23d September, 1872, George Middleton was tried before 
 me for feloniously stealing certain money to the amount of 
 £8. 16s. lOd., the moneys of the Postmaster General. 
 
 The ownership of the money was laid in, other counts, in the 
 Queen and in the mistress of the local post-office. 
 
 It was proved by the evidence that the prisoner was a de- 
 positor in a post-office savings bank, in which a sum of lis. 
 stood to his credit. 
 
 In accordance with the practice of the bank, he duly gave 
 notice to withdraw 10s., stating in such notice the number of 
 his depositor's book, the name of the post-office, and the 
 amount to be withdrawn. 
 
190 Phalen's Oeiminal Cases. 
 
 A warrant for 10s. was duly issued to the prisoner, and a 
 letter of advice was duly sent to the post-office at ISTottinghill 
 to pay the prisoner lOs. He presented himself at that post- 
 office and handed in his depositor's book and the warrant to 
 the clerk, who, instead of referring to the proper letter of ad- 
 vice for 10s., referred by mistake to another letter of advice 
 for £S. 16s, lOd., and placed upon the counter a £5. note, three 
 sovereigns, a half sovereign, and silver and copper, amounting 
 altogether to £8. 16s. lOd. 
 
 The clei-k entered the amount paid, viz.: £8. 26s. lOd., in the 
 prisoner's depositor's book, and stamped it, and ths prisoner 
 took up the money and went away. The mistake was after- 
 wards discovered, and the prisoner was brought back, and upon 
 being asked for his depositor's book, said he had burned it. 
 
 Other evidence of the prisoner having had the money was 
 given. 
 
 It was objected by counsel for the prisoner that there was no 
 larceny, because the clerk parted with the property, and in- 
 tended to do so, and because the prisoner did not get possession 
 by any fraiid or trick. 
 
 The jury found that the prisoner had the animus fnrandi 
 at the moment of taking the money from the counter, and that 
 he knew the money to Ije the money of the Postmaster Gen- 
 eral when he took it up. 
 
 A verdict of guilty was recorded, and I reserved for the 
 opinion of the Court of Crown Cases Reversed, the question 
 whether, under the circumstances above disclosed, the prisoner 
 was properly found guilty of larceny. 
 
 I discharged the prisoner on recognizance with sureties to 
 appear and recei^'e judgment when called upon. 
 
 [Signed.] Tuomas Chambers. 
 
 Xo counsel appeared for the prisoner. 
 
 The Attorney General (JMetcalf A; Slade witli him) for the 
 ])rosecution. 
 
 January 25. Kelly, C. Jj., said the majority of the judges 
 were of opinion that the conviction should be affirmed. The 
 reason for the judgment will he delivered at a f utiire day. 
 
Rvji. V. MiDDr.KTox. 191 
 
 June 7. Judgments of the court were this day delivered. 
 
 BoviLL, C. J. This was a case in which the prisoner was 
 indicted at the Central Criminal Court for feloniouslj stealing- 
 money, the property of the Queen, or of the Postmaster Gen- 
 erah On the trial he ■was found guilty, but a case was reserved 
 for the opinion of the Court of Criminal Appeal, which came 
 on in the ordinary course before five judges; but on the argu- 
 ment they were not agreed, and the case \vas adjourned, to be 
 argued before all the judges. Pollock, B., was obliged to be 
 absent at chambers, and Quaix, J., was unwell, but the other 
 judges, fifteen in number, heard the case, and after time taken 
 to consider, eleven of those fifteen judges wei'e of opinion that 
 the conviction was right and ought to be affirmed ; my broth- 
 ers, Martin, Bramwell, Brett and Cleasby dissented. Judg- 
 ment was accordingly given in accordance with the opinion of 
 the majority ; but as it was thought important that the grounds 
 of the decision should be accurately known, it was announced 
 that the reasons of the judgments would on a subsecpient day 
 be delivered in writing. 
 
 I will no^w proceed to deliver the judgment of the I^ord 
 Chief Justice and of my brothers Blackburn, Mellar, I^ush, 
 Grove, Denman, and Archibald, which is as follows: 
 
 The points raised by the case are in effect three. The uni- 
 form course of indictment for larceny, from the earliest times, 
 has been to allege that the prisoner " feloni(_)usly stole, took, 
 and carried away," the goods of a named person, and Lord 
 Hale in his Pleas of the Crown, vol. 1, p. 165, states with per- 
 fect accuracy that the \vords " feloniously stole and took," are 
 essential to the ci'ime. In the present case the jury have found 
 that the prisoner had the animus furandi fit i\\e, luoment of 
 taking the money from the counter, and that he knew the 
 money to be the money of the Postmaster General when he took 
 it up. So far, therefore, as the guilty knowledge and felonious 
 intention are ingredients in the crime of stealing, we must 
 take it as proved tliat the prisoner was guilty. But the case 
 states facts which raise the doubt whether, under the circum ■ 
 stances stated, this was a " taking," and also whether, it was a 
 " stealing " within the meaning put by the law on these aver- 
 ments in an indictment for larcenv. The circumstances which 
 
192 Piialen's Cbiminal Cases. 
 
 raise that doubt are as follows : Assuming that the clerk who 
 actually was engaged in the transaction had such authority 
 from the Postmaster General that all he did is to be taken as 
 done by the Postmaster General, it is the first question whether 
 the money can be said to have been taken by the prisoner 
 within the meaning of the averment, inasmuch as the clerk 
 (who on this hypothesis is equivalent to the Postmaster Gen- 
 eral,) certainly meant that the prisoner should take up that 
 money, though he only meant this because of a mistake he 
 made as to the identity of the prisoner with the person really 
 entitled to that money. Then a second question arises, whether 
 it can be properly said that he stole the money, inasmuch as 
 the clerk, and therefore on this hypothesis the Postmaster Gen- 
 eral, intended that the property in the money should belong to- 
 the man before him, though he intended that in consequence 
 of a mistake as to his identity, and the prisoner from the be- 
 ginning knew of the mistake, and had at the time of the 
 taking the guilty intention to steal the money. A third ques- 
 tion arises in the event of the first two questions being deter- 
 mined in favor of the prisoner, viz., whether the clerk really 
 had such general authority as to represent the Postmaster Gen- 
 eral, or whether his authority was not limited to paying the 
 money specified in the letter of advice, viz., 10s, which special 
 authority, if it was so limited, he did not pursue. The major- 
 ity of the judges, eight in number, have formed their judgment 
 on the decision of the first two points in favor of the Crown, which 
 therefore renders it unnecessary for them to decide the last. The 
 Lord Chief Justice of the Common Pleas and the Lord Chief 
 Baron and my brother Keating, who agree with the majority in 
 thinking the conviction should be affirmed, do so solely on the last 
 ground, that the authority of the clerk was a special authority 
 not pursued, and their reasons are stated in two separate judg- 
 ments. It is not to be understood that the eight who form the 
 rest of the majority decide this question the other way, but 
 merely that they consider it unnecessary to decide it at all. 
 "We now proceed to state the reasons on which we think it 
 ought to be held that there was imder the circumstances stated 
 a "taking," within the meaning of the avermented in the 
 indictment. We agree that, according to the decided cases, it 
 
Reg. v. Middleton. 193 
 
 is no felony at common law to. steal goods if the goods were 
 already lawfully in the possession of the thief, and that, there- 
 fore, at common law, a bailee of goods, or a person who finds 
 goods lost, and not knowing nor having the means of knowing 
 whose they were, takes possession of them, is not guilty of 
 larceny if he subsequently, with full knowledge and a felonious 
 intention, converts them to his own use. It is, to say the 
 least, very doubtful whether this doctrine is either wise or 
 just, and the legislature, in the case of bailees, have by statute 
 enacted that bailees stealing goods, etc., shall be guilty of 
 larceny, without reference to the subtle exceptions engrafted 
 by the cases on the old law, but in such a case as the present 
 there is no statute applicable, and we have to apply the com- 
 mon law. Now, we find that it has been often decided that 
 where the true owner did part with the physical possession of a 
 chattel to the prisoner, and, therefore, in one sense the taking 
 of the possession was not against his will, yet, if it was proved 
 that the prisoner from the beginning had the intent to steal, 
 and with that intent obtained the possession, it is a sufiicient 
 taking. We are not concerned at present to inquire whether 
 originally the judges ought to have introduced a distinction of 
 this sort, or ought to have left it to the legislature to correct 
 the mischievous narrowness of the common law, but only 
 whether this distinction is not now established, and we think 
 it is. The cases on the subject are collected in Kussell on 
 Crimes, (4th ed.) vol. 2, p. 201. Perhaps those that most 
 clearly raise the point are Davenport's case and Savage's case, 
 2 Russell, 201. In the present case the finding of the jury, 
 that the prisoner at the moment of taking the money had the 
 animus furandi, and was aware of the mistake, puts ail end 
 to all objection arising from the fact that the clerk meant to 
 part with the possession of the money. On this part of the 
 case there is no difference of opinion. On the second ques- 
 tion, namely, whether, assuming that the clerk was to be con- 
 sidered as having all the authority of the owner, the intention 
 of the clerk, such as it was, to part with the property pre- 
 vents this from being larceny, there is more difficulty, and 
 there is, in fact, a serious difference of opinion, though the 
 majority, as already stated, think the conviction right. The 
 13 
 
194 Phalen's Oeiminal Cases. 
 
 reasons which lead us to this conchision are as follows : At 
 common law the property in personal goods passes by a bargain 
 and sale for consideration, or a gift of them accompanied by 
 .delivery, and it is clear from the very nature of the thing that 
 an intention to pass the property is essential both to a sale and 
 to a gift. But it is not at all true that an intention to pass the 
 property, even though accompanied by a delivery, is of itself 
 equivalent to either a sale or a gift. We will presently' explain 
 more fully what we mean and how this is material. Xow it is 
 established that where a bargain has been made between the 
 owner of a chattel and another, by which the property is trans- 
 ferred to the other, the property actually passes, though the 
 bargain has been indeed by fraud. The law is thus stated in 
 the judgment of the Exchequer Chamber in Clough v. London 
 and Northwestern Railway Company, 7 L. Rep. Exch. 34, 
 where it is said : " We agree completely with what is stated 
 by all the judges below, that the property in the goods passed 
 from the London Piano Forte Company to Adams by the con- 
 tract of sale. The fact that the contract was induced by fraud 
 did not render the contract void, or prevent the property from 
 passing, but merely gave the party defrauded a right, on dis- 
 covering the fraud, to' elect whether he would continue to treat 
 the contract as binding, or would disaffirm the contract and 
 
 resume his property We think that so long as he 
 
 has made no election he retains the right to determine it either 
 way, subject to this, that if in the interval, whilst he is delib- 
 erating, an innocent third party has acquired an interest in 
 ;the property, or if, in consequence of his delay, the position 
 even of the wrong-doer is affected, it will preclude him from 
 exercising his right to rescind." It follows obviously from 
 this, that no conversion or dealing with the goods before the 
 election is determined can amount to a stealing of the vendor's 
 goods, for they had become the goods of the purchaser, and 
 still remained so when the sujiposed act of theft was commit- 
 ted. There are accordingly many oases, of which the most 
 -recent is R. v. Prince, 11 Cox C. C. 193, which decide that in 
 such a case the guilty party must be indicted for obtaining the 
 goods by false pretences, and cannot be convicted of larceny. 
 In that case, however, the money was paid to the holder of a 
 
Keu. v. Middlexon. 195 
 
 forged check, payable to bearer, and therefore vested in the 
 holder, subject to the right of the bank to divest the property. 
 In the present case the property still remained that of the 
 Ppstmaster General, and never did vest in the prisoner at all. 
 There was no contract to render it his which required to be 
 rescinded; there was no gift of it to him, for there was no 
 intention to give it him or any one. It was simply a hand- 
 ing it over by a pure mistake, and no property passed. As 
 this was money, we cannot test the case by seeing whether an 
 innocent purchaser could have held the property; but let us 
 suppose that a purchaser of beans go to the warehouse of a 
 merchant with a genuine order for so many bushels of beans, 
 to be selected from the bulk, and so become the property of 
 the vendee, and that by some strange blunder the merchant 
 delivers to him an equal bulk of coffee. If the coffee was sold, 
 not in market overt, by the recipient to a third person, could 
 he retain it against the merchant, on the ground that he had 
 bought it from one who Imd the projterty in the coffee, though 
 subject to be divested ? We do not remember any case in 
 which such a point has arisen, but surely there can be no 
 doubt he could not, and that on the principle enunciated by 
 Lord Abinger, in Chanter v. Hopkins, 4 M. & W. 404, where 
 he says : " If a man offers to buy peas of another and he sends 
 him beans, he does not perform his contract; but that is not a 
 warranty; there is no warranty that he should sell him peas, 
 the contract is to sell peas, and if he sends him anything else 
 in their stead it is a non-performance of it." We admit that 
 the case is undistinguishable from the one supposed in the 
 argument of a person handing to a cabman a sovereign by mis- 
 take for a shilling; but after carefully weighing the opinions 
 to the contrary, we are decided!}' of opinion that the proj)erty 
 in the sovereign would not vest in the cabman, and that the 
 question whetlier the cabman was guilty of larceny or not 
 would depend upon this : Whether, at the time he took the 
 sovereign, he was aware of the mistake, and had then the 
 guilty intent, the animus furandi. But it is further urged 
 that if the owner, having power to dispose of the property, 
 intended to part with it, that prevents the crime from being 
 larceny, tho^igh the intention was inoperative, and no property 
 
196 Phai-en's Ceiminal Cases. 
 
 passed. In almost all the cases on the subject the property 
 had actually passed, or at least the court thought it had passed; 
 but two cases, Reg. v. Adams, 1 Den. C. C. 38, and Reg. v. 
 Atkinson, 2 East P. C. 673, appear to have been decided on 
 the ground that an intention to pass the property, though 
 inoperative, and known by the prisoner to be inoperative, was 
 enough to prevent the crime frOm being that of larceny. But 
 we are unable to perceive or understand on what principle 
 these cases can be supported, if Davenport's case and the 
 others involving the sam^e principle are law; and, though if a 
 long series of cases had so decided, we should think we were 
 bound by them, yet we think that in a court such as this, 
 which is in effect a court of error, we ought not to feel bound 
 by two cases which, as far as we can perceive, stand alone, 
 and seem to us contrary, both to principal and justice. 
 
 BoviLL, C. J., then read his own judgment, in which Keat- 
 ing, J., concurred. The proper definition of larceny according 
 to the law of England, from the time of Bracton downwards, 
 has been considered to be the wrongful or fraudulent taking and 
 carrying away by any person of the personal goods of another 
 from any place, without any color of right, with a felonious in- 
 tent to convert them to the taker's own use, and make them 
 his own property, without the consent and against the will of 
 the owner; and the question for our consideration is, whether 
 the facts of the present case bring it within that definition. 
 Under the act for establishing post-oflice savings banks, 24 
 Vic. c 14, deposits are received at the post-office authorized by 
 virtue of that act, for the purpose of being remitted to the 
 principal office, sec. 1. By section two the Postmaster Gen- 
 eral is to give an acknowledgment for such deposits, and by 
 the fifth section all moneys so deposited with the Postmaster 
 General are forthwith to be paid over to the Commissioners 
 for the reduction of the National Debt. By the same section 
 all sums withdrawn by depositors are to be repaid out of those 
 moneys through the office of the Postmaster General; and by 
 section three the authority of the Postmaster General for 
 such repayments shall he transmitted to the depositor^ who is 
 to be entitled to repayment at the post-office within ten daj^s. 
 It appears to us that the moneys received by the postmasters at 
 
Reg. v. Middleton. 197 
 
 their respective offices, by virtue of this act, are the property 
 of the Crown or of the Postmaster General, and that neither 
 the postmasters nor the clerks of the post-office have any power 
 or authority, either general or special, to part with the prop- 
 erty in or even the possession of, the moneys so deposited, or 
 any part of them, to any person, except upon the special au- 
 thority of the Postmaster General. In this case the prisoner 
 had received a warrant or authority from the Postmaster Gen- 
 eral entitling him to repayment of 10s. (being part of a sum 
 of lis. which he had deposited) from the post-office at Notting- 
 hill, and a letter of advice to the same effect was sent by the 
 Postmaster General to the post-office, authorizing the payment 
 of the 10s. to the prisoner. Under these circumstances we are 
 of opinion that neither the clerk to the postmistress nor the 
 postmistress personally had any power or authority to part 
 with the five-pound note, three sovereigns, the half sovereign, 
 and silver and copper, amounting to £8 16s. lOd., which the 
 clerk placed ujion the counter, and which was taken up by the 
 prisoner. In this view the present case appears to be undis- 
 tinguishable from other cases where obtaining articles animo 
 furandi from the master of a post-office, has been held to be 
 larceny, on the principle that the postmaster had not the prop- 
 erty in the articles, or the power to part with the property in 
 them. For instance, the obtaining the mail-bag, by pretend- 
 ing to be the mail-guard, as in Keg. v. Pearce, 2 East P. C, 
 603, the obtaining a watch from the postmaster by pretending 
 to be the person for whom it was intended, as in Reg. v. Kay, 
 D. & B., 231; 7 Cox, C. C, 298, where Reg. v. Pearce was in 
 the judgment of the court, and the obtaining letters from the 
 postmaster under pretence of being the servant of the party to 
 whom they were addressed, as in Jones' case, 1 Den., 188, and 
 in Reg. v. Gillings, 1 F. & F., 36, were all held to be larceny. 
 The same principle has been acted upon in other cases where 
 the person having merely the possession of goods, without any 
 power to part with the property in them, has delivered them to 
 the prisoner, who has obtained them animo fuTaiidij for in- 
 stance, such as obtaining a parcel from a carrier's servant, by 
 pretending to be the person to whom it was directed, as in 
 Reg. V. Longstreet, 1 Mood. C. C, 137, or obtaining goods 
 
198 Phalen's Ceiminal Gases. 
 
 through the mis-delivery of them by a carman's servant, through 
 mistake to a wrong person, who appropriated them aniinofur- 
 andi, as in Reg. v. Little, 10 Cox C. C, 559, were in like man- 
 ner held to amount to larceny. In all these and other similar 
 cases, many of which are collected in2Kussell on Crimes, 211 
 to 215, the property was considered to be taken without the 
 consent and against the will of the owner, though the posses- 
 sion was parted with by the voluntary act of the servant to 
 whom the property had been intrusted for a special purpose. 
 And where property is so taken by the prisoner knowingly, 
 with intent to deprive the owner of it, and feloniously to ap- 
 propriate it to himself, he may, in our opinion, be properly 
 convicted of larceny. The case is very different where the goods 
 are parted with by the owner himself, or by a person having 
 authority to act for him, and where he or such agent intended 
 to part with the property in the goods, for then, although the 
 goods be obtained by fraud or forgery, or false pretenses, it is 
 not a taking against the will of the owner, which is necessarv 
 in order to constitute larceny. 
 
 The delivery of goods by the o%vner upon an order which 
 was in fact forged, as in Keg. v. Adams, 1 Den., 38, the pay- 
 ment of money by a banker's cashier on a cheque, which turned 
 out to be a forgery, as in Reg. v. Prince, 11 Cox C. C. 193, 
 and the delivering up of pledges by a pawn broker's manager 
 by mistake, and through fraud, as in Reg. v. Jackson, 1 Mood., 
 119, are instances of this kind, and where the intent volun- 
 tarily to part with the property in the goods by a person who 
 had authority to part with the property in them prevented the 
 offence being treated as a larceny. In the present case, not 
 only had the postmistress, or her clerk, no power or authority 
 to part with the property in this money to the prisoner, but 
 the clerk, in one sense, never intended to part with the £8 16s. 
 lOd. to the prisoner who presented an order for only 10s., and 
 he placed the money on the counter by mistake, though at the 
 time, he, by mistake, intended that the prisoner should take 
 it up, and by mistake entered the amount in the prisoner's 
 book. When the money was lying upon the counter the pris- 
 oner was aware that he was not entitled to it, and that it could 
 not be, and was not really intended for him; yet with full 
 
'E.BG. V. MiDDLETGN. 199 
 
 knowledge on hib part of the mistake, he took the money up 
 and carried it awaj, intending at the tims he took it to deprive 
 the owner of all property in it, and feloniously to appropriate 
 it to his own use. There was, therefore, as it seems to us a 
 ■wrongful and fraudulent taking and carrying away of the 
 whole of this money by the prisoner, without any color of 
 right, animo furandl, and against the will of the real owner. 
 For these reasons, and upon the authorities stated, we think the 
 prisoner was properly convicted of larceny. 
 
 Kelly, G. B. The facts of this case, simply stated, are 
 these: The prisoner, having deposited 10s. in the Post-office 
 Savings Bank, and taken the necessary steps to withdraw it, 
 proceeded to the post-office and presented his order for the 
 10s. The post-office clerk, having looked at the letter of advice 
 for the payment of the 10s., and at another letter of advice for 
 the payment to another depositor, of £3 and a fraction, by mis- 
 talce took up the £8 odd destined for the other depositor, and 
 laid it upon the counter bsfore the prisoner, who took up the 
 money and went away with it, and applied it to his own use. 
 The jury expressly found that he knew the £S odd did not 
 belong to him, and that it did belong to the Postmaster Gen- 
 eral, and that he took it up and carried it away with him 
 aiiimo furandi. Upon these facts, and this finding, I cannot 
 bring myself to doubt that the prisoner was guilty of larceny. 
 He saw the money upon the counter before him ; he knew that 
 it was not his own, and that it was another person's money, 
 and he took it up and took it away with the intent to steal it. 
 If he had gone into the office knowing that he had to receive 
 10s., and that somebody had to receive £S, and he had seen the 
 10s. and the £3 lying upon the counter before him, and had 
 taken away the £S animo furandi, no question could have 
 been raised about his guilt. Does it then make any difference 
 that the clerk placed tlie money before him and intended that 
 he should take it? If the money had belonged to the clerk, 
 and the clerk had intended to pass the property in the money 
 from himself to the prisoner, or if, the money belonging to the 
 Postmaster General or the Queen, the clerk had been autho- 
 rized to pass the property in that money to the prisoner, the 
 
200 Phaien's Ceiminal Oases. 
 
 case might have been different. But this money did not belong 
 to the clerk, and he had no authority to pass the property in, 
 the TTioney to the prisoner. R. v. Prince was cited, where a 
 banker's clerk, to whom a forged check was presented, paid the 
 money in ignorance of the forgery and the receiver, who in- 
 tended to defraud the banker of the money, was acquitted of 
 larceny on the ground that the clerk had the authority to 
 receive the check and to dispose of the money which he had 
 paid to the prisoner, and was the agent of the banker in so 
 doing ; so that the case was the same as if the banker himself, 
 who was the owner of the money, had delivered it to the pris- 
 oner. There, however, the clerk was not only the agent of the 
 banker, but he acted strictly in the discharge of his duty, for 
 he had not only the authority of his employer to pay the 
 money, but in the absence of any suspicion, or reason to sus- 
 pect, that the check was forged, it was his duty to pay it, and he 
 did pay it with the banker's money. And there are other cases 
 where the owner of -a chattel delivered it to another with the in- 
 tent to pass the j)roperty, and the receiver has been acquitted of 
 larceny. But in this case the post-office clerk was not the 
 owner of £8, and had no authority whatever to deliver that 
 sum of money to the prisoner, which is precisely the case 
 excepted in the judgment of the Queen v. Prince, and brings 
 it within the Queen v. Longstreet therein cited. The case ap- 
 pears to me to be the same (indeed I suggested it during the 
 argument) as if the prisoner had left a watch at a watch- 
 maker's to be repaired, and afterwards goes to the watch- 
 maker's, where he sees his watch hanging up behind the counter 
 and another watch of greater value, and belonging to another 
 person, hanging beside it, and upon his asking for his watch, 
 the shopman, by mistake, hands him the watch belonging to 
 the other person. He sees his own watch; he knows that the 
 ■watch handed to him does not belong to him, but is the prop- 
 erty of another, and that the shopman has no authority what- 
 ever to deliver the watch of another to him. I have no doubt, 
 therefore, that one who had so received and taken away 
 another man's property would have been guilty of larceny, and 
 that the shopman in such a case, and the clerk in this case, is 
 in the condition of a mei-e bystander, wlio, without authority 
 
Keg. v. Miudleton. 201 
 
 and by mere mistake, hands to bim a cbattel wbich be sees be- 
 fore him. Even Princess case may be said to be founded on a 
 fiction, for it is not true that, the banker had authorized his clerk 
 to pay his money upon a forged check; but the fiction is more 
 undisguised and palpable when it is asserted that the clerk was 
 authorized by the Postmaster General to pay the sum of 
 £8 to a man who had presented an order or warrant for 10s. 
 And I must beg leave to record my deliberate opinion that 
 the creating of fictions, which, as the term imports, is the 
 assuming to be true that which is untrue, and of which the 
 direct consequence is to defeat justice, is a practice which, in 
 administering the law, ought not to be extended. Moreover, 
 this case is distinguishable from Prince's case on the ground 
 of the decision in Reg. v. Longstreet, where a carrier's serv- 
 ant delivered a parcel to one who received it animo furandi; 
 knowing it not to be his own, and it was held that he had no 
 authority to deal with the property in the goods, but only with 
 the possession, and that the receiver was guilty of larceny. I 
 think that decision governs the present case, and conclusively 
 shows that if a servant delivers to the wrong person a chattel, 
 which it was no part of his duty, and which he had no au- 
 thority to deliver to any but the owner, and the receiver takes 
 it, knowing it is not his, but belongs to another, and animo 
 furandi, such receiver, although the delivery is made in the 
 ordinary performance of the duty of the servant, is guilty of 
 larceny. Upon these grounds I think the conviction should be 
 affirmed. 
 
 Martin, B. I have read the judgments of my brothers, 
 Beamwell, B., and Cleasby, B., and fully concur in them. 
 I think that upon the facts and on the principles of the Crim- 
 inal Law, there was no larceny committed in this case. In 
 my judgment the case of Reg. v. Prince is not distinguishable 
 from this case. There the prisoner committed a more gross 
 offence, and yet the court held it not to be larceny. The true 
 principle of larceny is to be found in Coke's 3d Instit. 107 : 
 " Larceny is the felonious and fraudulent taking and carrying 
 away by any man or woman of the mere personal goods of 
 another, neithei- from the person oi' by night in the hoxise of 
 
202 Phalen's Criminal Cases. 
 
 the owner." And, "Secondly, there must be an actual taking, 
 for an indictment c[uod felonice abdiixit equum is not good 
 because it was cepit; by taking, and not bailment, or delivery, 
 for that is a receipt, and not a -taking; and therewith agreeth 
 Grlanvil." The cases collected in Russ. on Crimes show that 
 there must be a taking, and it is essential to the crime of 
 larceny that the act of taking should be a trespass. In my 
 opinion, what the prisoner did was not taking in that sense, 
 and not a trespass, but only a receipt. The civil remedy to 
 recover back the money would have been trover and not 
 trespass. 
 
 Bramwisll, B. As the prisoner has now undergone his 
 nominal sentence, I should think it better that the small 
 minority in this case, of whom I am one, should give up their 
 opinions to the majority, if the case turned on its own par- 
 ticular circumstances, and no principle was involved. But in 
 my opinion, great and important principles, not only of our 
 law, but of general jurisprudence, arise here, on which I feel 
 bound to state my views. It is a good rule in criminal juris- 
 jjrudence not to multiply crime; to make as few matters as 
 possible the subject of criminal law; and to trust, as much as 
 can be, to the operation of the ci^'il law for the prevention and 
 remedy of wrong. It is also a good rule not to make that a 
 crime which is the act of, or partly the act of, the party com- 
 jjlaining volenti noii fit injuria — as far as he is willing let it 
 be no crime. Here the taking was consented to. This is 
 undoubtedly a rule of the English Common Law. Ordinary 
 cheating was not. Embezzlement by a servant was not 
 larceny. Breaches of trust by trustees and bailees were not; 
 so, also, fraudulently simulating the husband of a married 
 woman, and liaving connection with her was not. And most 
 particularly was and is this the case in larceny, for the defini- 
 tion of it is that the taking must be " Invito dom.ine." 
 Whether the law is good or bad is not the (question. We are 
 to administer it as it is. I think those statutes that have 
 made offences of such matters as I have mentioned improved 
 the law, because the business of life cannot be carried on with- 
 out trusting to representations that we cannot verify, and 
 
Reg. v. Middleton. 203 
 
 without trusting goods to otiiers in such a M'ay that the owner 
 loses all power of watching over them; and it is reasonable 
 that the law should protect persons who do so, by making 
 criminals of those who abuse that confidence. 
 
 But something was to be said in favor of the old law, viz. : 
 that the opportunity for the crime was afforded by the com- 
 plainant. Further, there is certainly a difference between the 
 privy taking of property without the knowledge of the owner, 
 or its forcible taking, and its taking with consent by means of 
 a fraud. The latter, perhaps, may properly be made a crime, 
 but it is a different crime from the other taking. I say, then, 
 that on the principle of general jurisprudence, on the general 
 princijile of our law, and on the particular definition of 
 larceny, the taking must be invito domino. That does not 
 mean contrary to or against his will, but without it — all he 
 need be is invitus. This accounts for how it is that a finder 
 of a chattel may be guilty of larceny. The doffiinus is 
 invitus. So in the case of a servant who steals his master's 
 property. There are certain cases apparently inconsistant 
 with this, but which , are brought within the rule, but by 
 reasoning which ought to have no place in criminal law. I 
 mean such cases as where a carrier broke bulk and stole the 
 contents or part, and was guilty of larceny, but would not 
 have been had he taken the whole package ; and cases where 
 possession was fraudulently obtained animo furandi from the 
 owner, who did not intend to part with the property. In such 
 cases it has been held that the breach of trust by the carrier in 
 breaking bulk revested the possession in the owner; and in 
 the other case, the obtaining of possession was a fraud and so 
 null, and that, therefore, in such cases the possession reverted 
 to or remained in the true owner, and so there was a takina: 
 invito domino. So, also, cases where the custody is given to 
 the alleged thief, but not possession or property, as where the 
 price of a chattel delivered is to be paid ready money, R. v. 
 Choen, 2 Den. 249. There are no exceptions to the rule, but 
 are brought within it by artificial, technical, and unreal 
 reasoning. But where the domimis has voluuntarily parted 
 with the possession, intending to part with the ^property in 
 the chattel, it has never yet been held that larceny was com- 
 
204 Phalen's Cbiminal Cases. 
 
 mitted, whatever fraud may have been used to induce him to 
 do so, nor whatever may be the mistake he committed; 
 because in such case the domitius is not invitus. So, also, 
 where the possession has been parted with in such way as to 
 give the bailee a special property. See 2 Kussell on Crimes, 
 191, citing 2 East P. C. 682; Keg. v. Smith, E. & M. C. C. 
 E. 473; K. v. Goodbody, 8 C. & P. 655. It is not necessary 
 that the property shall pass ; the intent to pass it is enough. 
 See E. Coleman, 3 East, P. C. 6T2; 2 Eussell, 200. It is 
 clear that the property did not pass in that case, even 
 voidably; not to the prissner, becaiise the prosecutor's con- 
 tract was not with him; nor to Mrs. Cook, for it was not 
 with her. The same remark applies to Adams' case, 2 
 Eussell, 200 ; see, also, Atkinson's case, 2 Eussell, 207. The 
 principle of the case seems misunderstood in the text. It is 
 cited as a case where the property passed, but it is clear no 
 property passed to any one. It is argued that here there was 
 no intent to j)art with the property, because the post-office 
 clerk never intended to give to Middleton what did not belong 
 to him. A fallacy is involved in this way of stating the mat- 
 ter. No doubt the clerk did not intend to do any act of the 
 sort described, and give to Middleton what did not belong to 
 him. Yet he intended to do the act he did. What he did, he 
 did not do involuntary, nor accidentally, but on purpose. See 
 what would follow from such reasoning. A. intended to kill 
 B. ; mistaking C. for B. he shoots at C. and kills him. Ac- 
 cording to the argument he is not guilty of intentional murder ; 
 not of B., for he has not killed him; nor of C, for he did not 
 intend to kill him. There is authority of a very cogent kind 
 against this argument. A man, in the dark, gets into bed to 
 a woman, who, erroneously believing him to be her husband, 
 lets him have C(jnnection with her. This is not rape, because 
 it is not without her consent; yet she did not intend that a 
 man not her husband should have connection with her. I have 
 noticed the above as another illustration of hoM' the common law 
 refuses to punish an act committed with the consent of the com- 
 plainant. To proceed with the present matter : If the reasoning 
 as to not intending to give this money is correct, then, as it is cer- 
 tain that the post-office clerk did not intend to give Middleton 
 
Reg. v. Middleton. 205 
 
 10s., it follows that he intended to give him nothing. That can- 
 not be. In truth, he intended to give him what he gave, because 
 he made the mistake. This matter may be tested in this way : 
 A. tells B. he has ordered a wine merchant to give B. a dozen 
 of wine. B. goes to the wine merchant, hona fide receives and 
 drinks a dozen of wine. After it is consumed the wine mer- 
 chant discovers he gave B. the wrong dozen, and demands it of 
 B., who having consumed it, cannot return it. It is clear the 
 wine merchant can maintain no action against B., as B. could 
 plead the wine merchant's leave and license. But it is said 
 that if B. knew of the mistake, and took the wine aniino fur- 
 cmdi, then he would have taken it invito dominus. So that 
 whether the dominus is invitus or not depends, not on the state 
 of his own mind, but on that of B. It is impossible to say 
 that there was a taking here sufficient to constitute larceny, be- 
 cause the money was picked up ; but if it had been put in the 
 prisoner's hand, there was no such a taking. But for the point, 
 then, I am about to mention, I submit the dominus was in- 
 vitus, that he consented to the taking, and that it was partly 
 his act. No doubt the prisoner was a dishonest man — may be 
 what he did ought to be made criminal — but his act was dif- 
 ferent from a privy or forcible taking; he was led into temp- 
 tation, the prosecutor had very much himself to blame, and I 
 certainly think that Middleton, if punished, should be so on 
 different considerations from those which should govern the 
 punishment of a larcenous thief. But a point is made for the 
 prosecution on whicWI confess I have the greatest doubt. It 
 is said that here the domAnus was vitus — that the dorainus 
 was not the post-office clerk, but the Postmaster General, or the 
 Queen, and that therefore it was an unauthorized act in the 
 post-office clerk, and so trespass in Middleton invito domino. 
 I think one answer to this is that the post-office clerk had au- 
 thority to decide under what circtim stances he would part with 
 the money with which he was intrusted. But I also think that, 
 for the purpose of this question, the lawful possessor of the 
 chattel, having authority to transfer the property, must be con- 
 sidered as the dominus, at least when acting iona fide. It is 
 unreasonable that a man should be a thief or not, not accord- 
 ing to his act or intention, but according to a matter which has 
 
206 Phalen's Ceiminal Cases. 
 
 nothing to do witli them, and of which he has no knowledge. 
 According to this, if I give a cabman a sovereign for a shilling 
 by mistake, he taking it animo furandi, it is no larceny; but 
 if I tell my servant to take a shilling out of my purse and he 
 by mistake takes a sovereign and gives it to the cabman, who 
 takes it animo furandi, the cabman is a thief. It is ludi- 
 crous to say that if a man, instead of himself paying, tells his 
 wife to do so, and she gives the sovereign for a shilling, that 
 the cabman is guilty of larceny, but not if the man gives it. 
 It is said that there is no great harm in that a thief in mind 
 and act has blundered into a crime. I cannot agree. I think 
 the Criminal Law ought to be reasonable and intelligible. 
 Certainly a man who had to be hung owing to this distinction 
 might well complain ; and it is to be remembered that we must 
 hold that to be law now which would have been law when such 
 a felony was capital. Besides, jurors are not infallible, and 
 may make a mistake as to the animo furandi, and so find a 
 man guilty of larceny when there was no theft and no animus 
 furandi. Moreover, Prince's case is contrary to this argument, 
 for there the bankers' clerks had no authority to pay a forged 
 check if they knew it. They had authority to make a mistake 
 and so had the post-office clerk. And suppose in this case the 
 taking had been honafide. Suppose Middleton could neither 
 write nor read, and some one had made him a present of the 
 book without telling him the amount, and he had thought the 
 right sum had been given to him, woiild his taking of it have 
 been a trespass ? I think not, and that \ demand would have 
 been necessary before an action of conversion could be main- 
 tained. No doubt the cases on this point are difficult, but I 
 think not inconsistent with this opinion. In Longstreet's case, 
 3 Puss., 203, the servant had no authority to change property 
 in the thing delivered. So in Wilkins's case, 3 Puss., 211. In 
 Small's case, lb., 213, tlie servant had authority to part with 
 the possession only if he got a good half-crown, and the pris- 
 oner knew that. So in Stewart's case, 1 Cox C. C, 174, where 
 the reasoning of Alderson, B., is very important. In Shep- 
 herd's case, 9 C. & P., 121, the servant had no aiithority to 
 sell the mare, and the prisoner, his confederate, knew the mare 
 was not the property of the servant. So in liench's case, 2 
 
JIeq. v. Middleton. 207 
 
 E.USS., 215, the servant had no authority to pass the property. 
 As to Pearce's case, 2 East P. C, 603, there was no intent to 
 pass the property. As to E.. v. Kay, 2 Puss., 217, the reason- 
 ing by which the conviction is justified is, I repeat, such as 
 ought not to exist in any law, most especially not in the Crim- 
 inal Law. But, as it is said in the note to that case, there was 
 no intention to part with the property. On these grounds I 
 think the conviction was wrong. I need not profess my re- 
 spect for those whose opinions are the contrary, hut I feel 
 bound, as I have said, to express mine, because I think very 
 important principles are involved, and because I think it de- 
 sirable to show that those whose opinions I share may be (and 
 probably are) in the wrong, considering the numerous and 
 weighty reasons the other way. There is more doubt in the 
 case than has appeared to some who seem to me to reason 
 th^is. The prisoner was as bad as a thief (which I deny) ; and be- 
 ing as bad ought to be treated as one (which I deny also.) To 
 such rea;Soner8 I give the recommendation contained in an ex- 
 cellent article in the Law Times of Jan. 25, 1873, p. 228, where 
 it is said: " A Metropolitan County Court Judge might, with 
 advantage, read and inwardly digest Paley's Moral and Politi- 
 cal Philosophy, or some approved treatise, in which the neces- 
 sity for positive rules of general application, the doctrines of 
 particular and 'general consequences,' and the superior import- 
 ance of and regard due to 'general consequences,' are really ex- 
 pounded." 
 
 PiGOTT, B. I agree in the judgment of the majority of the 
 court, except that I do not adopt the reasons which are there 
 assigned for holding that the mistaken intention of the clerk 
 did not under the circumstances here prevent the case from 
 being one of larceny on the part of the prisoner. I quite ac- 
 cede to that proposition, but my reason is that, in the view I 
 take of the facts, the intention and acts of the clerk are not 
 material in determining the nature of the prisoner's act and 
 intent; because the transaction between them stopped short of 
 placing the money completely in the prisoner's possession, and 
 could in no way have misled the prisoner. The case states 
 the clerk placed the money on the counter. He then entered 
 
208 Phalen's Criminal Cases. 
 
 the amount of it in the prisoner's book and stamped' it. This 
 no doubt gave the prisoner the opportunity of taking up the 
 money, and he did so in the presence of the clerk; but before 
 doing so he must have seen by the amount that the clerk was 
 in error, and that the money could not really be intended in 
 payment of his order, and therefore was not for him, but for 
 another person. It was with full knowledge of this mistake 
 that he resolved to avail himself of it, and, in fact, to steal the 
 money. The interval afforded him the opportunity, and he 
 did in fact conceive the animus furandi, while as yet he had 
 not taken the money in his manual possession. The dividing 
 line may appear to be a fine one; but it is, I think, very dis- 
 tinct and well defined in fact, for it is with this formed inten- 
 tion in his mind that he took possession of the money. If 
 complete possession had been given by the clerk to the pris- 
 oner, so that no act of the latter was required to complete it after 
 his discovery of the mistake and his own formed intention to 
 steal it, I should not feel myself at liberty to aflirm this con- 
 viction. In that case the prisoner would have done nothing to 
 defraud the clerk, and the latter intending (to the extent to 
 which he had sncli intention) as much to pass the property as 
 the possession in the money, there would be nothing to deprive 
 the matte]' of the character of a business transaction fully com- 
 pleted. I desire to adhere to the law stated in the 3d Insti- 
 tute, p. 110: "The intent to steal must be when it cometh 
 to his hands or possession; for if he hath the possession of it 
 once lawfully, though he hath animus ftirandi afterwards and 
 carrieth it away, it is no larceny." But the facts satisfy me, 
 and the jury have found upon them, that the prisoner had the 
 animus furandi while the money was yet on the counter, and 
 that at the moment of taking it up, he knew the money to be the 
 Postmaster General's. The case is therefore v'ery much like that 
 of a finder, who immediately on finding it knows, or has the 
 means of knowing the owner, and yet determines to steal it: 
 2 Russell, 169. The same facts satisfy the requirements in the 
 definition of larceny, that the taking must be invito domino. 
 The loser does not intend to be robbed of his property, nor did 
 the clerk in this case; and the prisoner's conduct is unaffected 
 
' 'Rt&g. y. Middleton. • ■ 209: 
 
 by the clerk's apparent consent, in ignorance of its real nature.- 
 I therefore agree in aifirming the conviction. 
 
 Bkett, J.' This case has been considered in three different 
 ways. It has been said that a proper inference of facts to be; 
 d,rawn from the facts stated is, that the prisoner took and car- 
 ried away the money without any consent to his so doing by- 
 the clerk, who was present, and that in such case the same rule 
 of law is. applicable as would be if the prisoner had taken and 
 carried away the money in the absence of the clerk, and that 
 the' prisoner was therefore properly convicted. It has been- 
 said that the facts which are stated show that, as a matter o£ 
 fact, the clerk in this case had no general authority to part 
 with the property in the money intrusted to him on behalf of 
 the Postmaster Greneral, but only a limited authority to part 
 with a particular sum of money to the prisorier, which was not 
 the sum of money he did part with, or to hand a sum similar 
 to that which he in fact handed to the prisoner, to some one 
 else and not to the ])risoner, and that consequently the pris- 
 orier was by law properly convicted of larceny, even though 
 the clerk intended the prisoner to take and keep the money, 
 or in other words, even though the clerk intended to part Avith 
 both the possession and the property in the money. It has been, 
 said that, even though the clerk had a general authority to part 
 with the possession of any property in the money, an authority 
 equal to that of the Postmaster General, if he had been pres- 
 ent, and even though the clerk intended to part with the pos- 
 session of and property in the money, yet that the prisoner- 
 was properly convicted, because no property in the money did in 
 point of law at any tiraq pass to the prisoner. Any difference of 
 opinion as to tlie first proposition, can only rise \ipon a differ- 
 ence of view as to the proper inference of fact to be drawn. 
 And I think also that the only difference of opinion with 
 regard to the second proposition is a difference as to the true 
 interpretation of the clerk's authority as matter of fact. But 
 the difference as to the last proposition is a difference as to the 
 Criminal Law. The difference of opinion that has arisen upon 
 the proposition makes it necessary, as it seems to me, to refer 
 to the definition of- larceny, and to point out the exact part of 
 14 
 
210 Phalen's Criminal Cases. 
 
 that definition which is in question. The definitions which 
 have been generally, and till now I think universally, accepted 
 are, that " larceny consists in the wrongful or fraudulent taking 
 and carrying away by any person of the mere personal goods of 
 another from any place, with a felonious intent to convert them 
 to his (the taker's) own use, and make them his own property 
 without the consent of the owner," and again, " the felonious tak- 
 ing the property of another without his consent and against his 
 will, with intent to convert it to the use of the taker." The indict- 
 ment for larceny is invariably founded upon these definitions, 
 and comprises by necessary inference, if not in express terms, 
 every part of them. It has always been held that each allega- 
 tion of each part of these definitions is a material allegation in 
 the indictment, and that every one of such allegations must be 
 proved. Where criminal law is so accurately and so merci- 
 fully administered as it is in England, and with so firm a 
 determination that no man shall be convicted of crime unless 
 the prosecutor can prove that the case is brought in every par- 
 ticular within the recognized or enacted definition of the 
 crime, it was to be expected that there would be, and it is the 
 fact that there have been, critical decisions on every part of 
 the definition of the crime of larceny. To some people such 
 decisions appear to be subtle; to others carefully and right- 
 fully accurate. One part of the definition is that the taking 
 relied upon as the stealing should be a taking " without the 
 consent and against the will of the owner." That is the part 
 of the definition which is in question in this case. It has 
 always been held to be a necessary part of the definition. 
 " Besides the animus furandi it is necessary that the taking 
 of the goods should also be without the consent of the owner," 
 " invito domino" 2 Rus. Crimes, 189, (4th ed). This is of the 
 very essence of the crime of larceny, as well as essential in 
 robbery. The cases quoted are: as to robbery, Keg. v. Mc- 
 Daniel, Fost, 122, and as to larceny, Eeg. v. Egginton, 2 
 Leach, 913. "Where the taking which is alleged to be felonious 
 has occurred without the knowledge of the owner or of the 
 person in charge, no difficulty can arise upon this part of the 
 definition. The difficulties which have arisen have been where 
 the goods have been delivered to the prisoner or have been 
 
Eeg. v. Middleton. • 211 
 
 taken by the prisoner with Ihe consent of the owner, or of the 
 person in charge. In such cases a distinction has been made 
 between the terms " delivery," " possession," and " property." 
 Where the goods are obtained by the prisoner by willing 
 delivery of them to him by the owner, the first proposition of 
 law which has been affirmed is as follows : " If it appear that^ 
 although there is a delivery by the owner in fact, yet there is 
 clearly no change of property, nor of legal possession, but the 
 legal possession still remains exclusively in the owner, larceny 
 may be committed exactly as if no such delivery had been 
 made. Thus, if a person to whom goods are delivered has 
 only the bare charge or custody of them, and the legal posses- 
 sion remains in the owner, such person may commit larceny 
 by a fraudulent conversion of the goods to his ovni use." 
 
 The next received proposition is thus stated : " Where there 
 is a delivery of the goods by the owner, it is a settled and well 
 established principle, that if the owner parts with the property 
 in the goods taken, there can be no felony ia the taking, how- 
 ever fraudulent the means by which such delivery was pro- 
 cured." And, according to the common law, if the owner had 
 not parted with the property in the goods, but only with the 
 possession of them, the question of larceny remains open, and 
 depends on the fact whether at the time of the alleged 
 felonious taking the owner parted with the possession of the 
 goods in such a manner and to such an extent as to exclude 
 the idea of trespass. If the possession be obtained by fraud, 
 there may be larceny, assuming that the other parts of the 
 definition are fulfilled. If the possession be obtained without 
 fraud, the taking by which the possession is obtained cannot 
 be treated as a taking by trespass, and, consequently, not as a 
 taking without the consent of the owner. The proposition 
 thus expressed- leave open a question as to whether they mean 
 that the property in the goods has passed in consideration of • 
 the law, or whether they mean that " it was the intention of 
 the owner that the property should pass." Now they are 
 addressed to the question whether the thing alleged to have 
 been stolen was taken " without the consent of the owner." 
 Consent or non-consent is an action of the mind ; it consists 
 exclusively of the intent of the mind. These propositions. 
 
212 Phalen's Ceiminai Cases. 
 
 tHerefore, are treating of a question of intention. If it be said 
 that a man iiitended to part with the property in. a thing 
 which he delivers to another, nieaning of the words is, that he 
 intended that the other should take the thing and keep it as his 
 own. It seems a contradiction in sense to say that the thing 
 BO delivered is talcen from liim "without his consent." It 
 eeetns to follow that the real meaning of the proposition, when, 
 they speak of the' owner parting with possession or parting 
 with the property, is as if they were written: " If the owner 
 intended to part with the possession, or intend to part with 
 the' property." All the cases are consistent with this view, 
 though it is not expressed in terms in all. In Keg. v. Harvey, 
 9 C. & P., 353, Alderson, B.^ asked the jury whether the 
 prosecutor meant that the prisoner should leave the jug with 
 the lady, and either bring back the money or. make a bargain. 
 In Reg. V. Johnson, 5 Cox C. C, 372, the jury found, under 
 direction that the prosecutor did not intend to pS,rt with the 
 property iii the cheque. In Parke's case, 2 East, P. C, 671, 
 the question left was, whether there was a sale by Mr. Wilson, 
 and a delivery of the goods with intent to jjass the property. 
 The jiiry foimd that Mr. Wilson did not intend to give credit. 
 The conviction was indeed set aside, but on the ground, as I 
 apprehend, that there was no evidence to justify the finding 
 of 'the jury. In Rex v. Nicholson, 2 East, P. C, p. 669, the 
 conviction' was held to be wrong by the jtidges, on a case 
 reserved, oh the groiind that the property in the post bill and 
 cash was parted with by the prosecutor under the idea that it 
 had been' fairly won. The ground of the judgment seems to 
 me to be the intention or idea of the prosecutor. In the case 
 of R. V. Adams, it seems to me impossible to say that any 
 property in the hat jjfissed to the prisoner in consideratibn of 
 law. The hat waS delivered by the owner to an itmocent 
 messenger or the jirisoner upon an assertion that he, the mes- 
 eenger, was sent by Paul. ' No property passed to Paul, 
 because there- was no delivery' to him 6r to any agent of his. 
 No property passed ih law to the prisoner, because there was 
 no 'intention that he'shoiild have the hat. - But' the act of tak- 
 ing' relied oil was the delivery 'df the 'hat by th6 prosecutor to 
 the'm'essengQr, and'the j:ird^ecutor' intended to part' with the 
 
. .E.EG, , V, ,HlDDLETpl!t.,, ' 213 
 
 property in the hat, or. in other woi'ds, that it shoulcl be. taken 
 away and kept. The judges, on .a case reserved, held that there 
 coiild be no fejony. The decision in the cases of ■ Eex v. 
 Davenport and Rex v. Savage seem to me to be founded 
 entirely on discussions and considerations as to the intention of 
 the prosecutor to pass the proj^erty. In Atkinson's case, 2 East 
 P. C, 673, the decision of the judges upon a case reserved 
 is in terms, that there was no felony, as it appeared .that the 
 property was intended to pass , by the delivery of the o.wner. 
 In the last case upon this point, the case of E.. v.. Prince, 11 
 Cox C. C, 193, the proposition of law is thus stated by Black- 
 burn, J. : " If the owner intended the property tp pass, tlipugh 
 he would not so have intended hadhe known the real facts, that ig 
 sufficient to prevent the offence of obtaining another's property 
 from amounting to larcsny; and where the servant has an au- 
 thority co-equal with the master's, and parts with, his master's 
 property, such j^roperty ,eannot be said to b,e stolen, inasinuch 
 as the servant intends to part with the property iij. it." The 
 question has always been a question left to the jury, and has 
 never .hitherto been treated, as a difficult question of the law of 
 property to be ruled by the judges. Tliere is no. trace in the 
 books of the treatment now sought to be applied. The pre- 
 amble to the statute, 33 Hen. 8, c. 1, draws the distinction be- 
 tween goods taken " by stealth " and goods " delivered by the 
 owner willingly, on being deceived' by false token." On con- 
 sideration, then, of the authorities, and of , the part of the def- 
 initions with, which they dealt, and of , principle, I arn of opin- 
 ion that the proposition of law which would have been applica- 
 ble in this case if the owner himself had been present is, wheji 
 accurately stated, that " where there is a dehvery of the goods 
 by the owner,, there can be no felony if the o-wTier intend to 
 part with the property in the goods, however fraudulent the 
 means by w^hich such delivery was procured." Where the de- 
 livery ip made by a servant or agent of the owner, and the ser- 
 vant or agent have an authority to pass, the. possession of and 
 the property in .the goods as if the owner were present, the 
 6a,me rule is applicable as if the delivery had been made by the 
 rnaster. R. y. Jackson and Reg. v. Prince. But if the deliv- 
 ery be by a servant, or agent .whqse authority is limited, in- 
 
214 Phalen's Ceiminal Cases. 
 
 tending only to pass the possession and not to pass the prop- 
 erty, then the proposition applicable is that which applies when 
 the master delivers only the possession, and not the property. 
 Although the servant delivers the goods, intending to pass both 
 possession and property, the prisoner may be convicted of lar- 
 ceny, if he obtain the delivery by fraud, R. v. Longstreet, 1 
 Moo., C. C, 137, and many other cases; just as if by fraud he 
 obtained delivery from the owner who intended by such deliv- 
 ery to give possession only, and not to pass the property. Such 
 I believe to be the propositions of law which have been acted 
 upon by a long series of most able and careful judges, and 
 which, therefore, the present judges, in my opinion, have no 
 authority to overrule. It follows that I cannot agree with a 
 judgment which decides that, even though the clerk had a gen- 
 eral authority to part with the possession of and property in 
 the money, an authority equal to that of the Postmaster Gen- 
 era], if he had been present, and even though the clerk intended 
 to part with the possession of and property in the money, yet 
 that the prisoner was properly convicted. I think that such a 
 judgment is founded upon and enunciates a wrong proposition 
 of law. Upon the assumption of facts thus stated, I am of 
 opinion that a prisoner could not be convicted according to law 
 of larceny. But if the clerk had only a limited special au- 
 thority to part with only the possession of the money intrusted 
 to him, or a limited special authority to part with the property 
 in a different sum from that which he delivered to the pris- 
 oner, or a limited special atithority to part with a similar sum 
 to that which he delivered to the prisoner, not to the prisoner, 
 but to another person, then I am of opinion that the prisoner, 
 upon the assumption that the other parts of the definition of 
 larceny were proved, was properly convicted of taking the 
 money without the consent of the Postmaster General, and 
 properly convicted of larceny. This rediices the difference of 
 opinion as to the first proposition which has been stated in this 
 case to a difference of opinion as to what was the intention of 
 the clerk with regard to delivering the money ; and, for the 
 second proposition as to what was the authority in fact of the 
 clerk. It seems to me that, with regard to passing the posses- 
 sion of any property in the money intrusted to him, he had 
 
Keg. v. Middleton. 215 
 
 the same authority as any other bank clerk. If he acted with 
 strict accuracy, his duty was to part with so much money as 
 he was directed to part with by a genuine warrant, and to pay 
 such sum of money to the person mentioned in such warrant. 
 Eut he had authority to part, not with any specific money, but 
 with any of the money intrusted to him, to any one of all the 
 persons who should properly present a genuine warrant. That 
 seems to me to be a general authority. To all such persons he 
 had authority to give possession of the money, in order that 
 they might keep it; that is to say, he had authority to pass to 
 all such j)ersons the possession of and property in the money 
 which he handed to them. It seems to me, therefore, that as 
 to passing the possession of and property in the money which 
 he should deliver, he had a general authority to deal with the 
 money as if in place of the owner. It seems to me that the 
 clerk intended to pass to the man who stood before him, that 
 is to say, the prisoner, the possession of and the property in 
 the whole of the money which he laid on the counter for the 
 prisoner to take up, and entered into the prisoner's book as 
 paid to the prisoner; and it seems to me to follow that the 
 prisoner, notwithstanding his fraudulent knowledge of the 
 clerk's mistake, and his fraudulent reticence, and his fraudu- 
 lent acceptance of what he knew was not due to him, cannot 
 legally be convicted of larceny. I think that the conviction 
 
 Cleasby, B. The case is not affected by the acts of parlia- 
 ment extending the criminal responsibility for larceny to 
 bailees and others, because the prisoner was clearly not a 
 bailee so as to be guilty by subsequently converting the money 
 to his own use, and he does not come within any other act of 
 parliament. We have, therefore, to deal with a case in which 
 a crime is charged which under the old law would have been 
 punishable with death, and in early times generally received 
 that punishment. The punishment was so severe that the. 
 crime was strictly defined, and from the earliest times was not 
 committed by fraudulently dealing with or appropriating the 
 property of anothers, but was onfy committed when the prop- 
 erty was taken by the accused; and it must be taken fraudu- 
 
216 Piialen's Ceiminal Cases. 
 
 lently without tlie consent of tlie owner. It is laid down in 
 Foster's Crown Lawj p. 123. " It is of the essence of the offence 
 'of robbery and larceny that the goods be taken against the will of 
 the owner." Lord Cook, in the 3d Institute, under the head of 
 larceny or theft, p. 107, quotes the definition in the Mirror of 
 Justice to the above effect, and he then gives the explanation 
 of the words in the Mirror as follows, quoting from the trans- 
 lation. " It is said a taking for bailing or delivery is not in 
 this case." And Lord Coke himself says afterwards, p. 107: 
 "Secondly, it must be an actual taking; by taking and not 
 bailment or delivering, for that is a receipt and not a taking', 
 and therewith agreeth Grlanvil, '■'■ Furlmm non est vhi initium 
 liabet detentionis per doininum rei." This continues the law 
 except so far as altered by statute. But the taking does not nec- 
 essarily mean a taking by force or Surrey:! ti tiously ; and the cases 
 as to what constitutes a taking occupy nearly one hundred 
 pages in Russell on Crimes, vol. ii. p. 152, 4th editi They 
 seem to establish: first, that where delivery is fi-audulently ob- 
 tained from any person having no authority to deal with the 
 property, it is a taking from the owner. The instances of this 
 are obtaining delivery' from a mere servant by a false repre- 
 sentation of the master's orders; obtaining delivery from a 
 carrier whose only authority it is to change the possession from 
 A to B by a false repi-esentation of being B. Another instance 
 more like the present, because there is a mistake, is where a 
 person leaves his umbrella or cloak with any person, to be re- 
 turned on application, and he afterwards fraudulently identi- 
 fies as his own a more valuable umbrella or cloak, belonging to 
 another person. This would- be a taking, because the parties 
 had no transaction or dealing connected with property, the 
 person in charge having only an authoi-ity to return to each 
 person his chattel. 
 
 Secondly, the cases established that when the owner himself 
 delivers them,- but only for the piirj^ose of some ofiice or cus- 
 tody, as of a man delivering sheep to his shepherd (an instance 
 ■put ■ by Coke), if the shepherd had them in his charge, and 
 fraudulently converted them to his own use, it would be a 
 taking, because the right oPpossession (much less of property) 
 was not for an instant changed. - But the ease also established 
 
- EeG. . T. MlDDLteTON. ; :" 217 
 
 that where there is .a complete dealing or transaction between 
 ■the parties, for the purpose of passing the property, and so the 
 ■possession is parted with, there is' no taking, and the case is out 
 oi the catagory of larceny. Considering what the .penalty 
 was, there was nothing unreasonable or contrary to the spirit 
 of our law in drawing a dividing line, and holding that when- 
 ever the owner of property is. a party to such a^ transaction as 
 I have mentioned, such serious consequences were not to de- 
 pend upon th€ conclusion which naight ,be arrived at as to the 
 precise terms of the transaction, which might be complicated 
 and uncertain and difficult to ascertain. And this agrees with 
 Hawldn's opinion. Pleas of the Crown, Book 1, c. 33, sect. 3, 
 where in dealing with the question of what shall be a felonious 
 taking, after pointing out that unless there has been a trespass in 
 taking goods, there can be no felony in carrying them away, 
 he adds : " And herein our ■ law differs from the civil, which 
 having no ca,pital punishment for bare theft, deals with offences 
 of this kind (that is fraudulent appropriations of things not 
 taken) as in strict justice most certainly it may ; but our law, 
 which punishes all theft with death if the thing stolen be above 
 the value, of twelve pence, and with corporaL punishment if 
 under, rather choses to deal with them as civil, than criminal 
 ■offences." I believe the rule. is as I have stated, and that it is 
 not limited to cases in which the property in the chattel actu- 
 ally passed by virtue of the transaction. I have not seen that 
 limitation put upon it in any text-book on the criin,inal law, 
 and there are, unless I am mistaken, many authorities against 
 it. . The cases show no doubt beyond qxiestion that where the 
 transaction is of such a nature that the property in the chattel 
 actually passes (though ■ subject to be resumed by reason of 
 fi-aud or trick), there is no taking, and ther.efore no larceny. 
 But they do not show the, converse, viz., that when the prop- 
 erty .does not pa,ss thereis larceny. On the contrary, they ap- 
 pear to me, to. show that where, there is an intention to part 
 with the property, along with .the possession, though the fraud 
 is of such a -jaature as 'to prevent that intention.from operating, 
 there is.gtill no larceny. This, seems so clearly to follow from 
 the cardinal ride, that there must be a. taking against the will 
 -o£ the owner,, that- the cases rather, assume, that tlie intention to 
 
218 Fhaleh's Criminal Cases, 
 
 transfer the property governs the cases than expressly decide it. 
 For how can there be a taking against the will of the owner 
 when the owner hands over the possession, intending by doing 
 so to part with the entire property? As far as my own ex- 
 perience goes, many of the cases of false pretences which I 
 have tried have been cases in which the prisoner has obtained 
 goods from a tradesman upon the false pretence that he came 
 with the order from a customer. In these cases no property 
 passes either to the customer or to the prisoner, and I never 
 heard such a case put forward as a case of larceny. And the 
 authorities are distinct upon cases reserved for the judges that 
 in such cases there is no larceny. In Eeg. v. Adams, 1 Den. 
 C. C-, 38, the prisoner was indicted for stealing a quantity of 
 bacon and hams, and it appeared that he went to the shop of 
 one Aston, and said he came from Mr. Parker for some hams 
 and bacon, and produced the following note, purporting to be 
 signed by Parker. " Have the goodness to give the bearer ten 
 good thick sides of bacon and four good hams at the lowest 
 price. I shall be in town on Thursday next, and will call and 
 pay you. Yours respectfully, T. Paekee." Aston, believing 
 the note to be the genuine note of Parker, (who occasionally 
 dealt with him), delivered the articles to Adams. The jury 
 convicted, but upon a case reserved, upon the question whether 
 the offence was larceny, the judges were all of opinion that the 
 conviction was wrong. Coleman's case, 2 East P. C, c. 16, s. 
 104, p. 672, is to the same effect. In that case the prisoner 
 got some silver as change, falsely pretending to come from a 
 neighbor for it; and it was held not to be a case of larceny. 
 Atkinson's case was a similar one and the prisoner was con- 
 victed, but on a reference to the judges, after conviction, all 
 present held that it was no felony, on the ground that the 
 property was intended to pass by the delivery of the owner. 2 
 East, c. 16, s. 104, p. 673. There is also a large class of cases 
 in which it has been held that there was no taking, so as to 
 constitute larceny, where the possession had been wholly parted 
 with (not by way of mere charge or custody, as in the case of 
 the shepherd or butler), though there was no intention to pass 
 the property. And the distinction has been drawn between 
 delivering yarn to a weaver to work up on the employer's prem- 
 
Reg. v. Middleton. 219 
 
 iees, in whicli there is no complete parting with the possession, 
 and the delivering to a weaver to take home and work up 
 there. In the latter case the possession is wholly parted with, 
 and previous to recent legislation there could be no larceny by 
 subsequent appropriation, 2 East P. C, c. 16, s. 109, so the 
 giving cloth to a tailor to make into a coat. 
 
 In like manner delivering a horse to be agisted at so much 
 a week, R. v. Smith, 1 Moody, 0. C. E.., 473, or cattle to a 
 drover, to be sold on the road, if he could do so, K. v. Good- 
 body, 8 C. & P., 665. In all these cases, the legal possession 
 being wholly transferred, there could be no taking in the 
 nature of a trespass, and they were not formerly cases of 
 larceny. I will only further refer to the case of R. v. Barnes, 
 6 Cox, 0. C. 112, and I do so from its resemblance to the 
 present case. The prisoner was indicted for larceny. Pie was 
 clerk to the prosecutors, and it was his duty to pay dock and 
 town dues. He fraudulently represented that a sum of £3 
 10s. 4d. was required to make the payments, when only £1 3s. 
 was wanted, and obtained the larger sum, intending to appro- 
 priate the difference to his own use. Upon a case reserved it 
 was held not to be larceny. The main difference between the 
 case and the present is, that the prisoner there dishonestly 
 made use of falsehood to obtain. the larger amount; in the 
 present case he obtained the larger amount by dishonestly 
 omitting to correct the mistake 6f the postmistress. In both 
 cases the over -payment was made under a mistake of the facts. 
 In my opinion, all the authorities warrant the proposition of 
 law as laid down by my brother Blackbuen, in the last 
 reported case on the subject, Reg. v. Prince, 11 Cox, C. C. 193, 
 which was, like the present, a case of payment under a mis- 
 take of fact. " If the owner intended the property to pass, 
 though he would not have so intended had he known the real 
 facts, that is sufficient to prevent the offence of obtaining 
 another's property from amounting to larceny; and where the 
 servant has an authority co-equal with the master's, and parts 
 with his master's property, such property cannot be said to be 
 stolen, inasmuch as the servant intended to part with the 
 property in it." With these authorities before me, I cannot 
 accept as the proper test, not the intention of the owner to 
 
220 Phaien's . Cbiminal Cases. 
 
 deliver over the, property, which is a, question of fact, biit the 
 effect of the transaction in passing the property,, which might 
 raise in many cases a question, of law. This appears to be a 
 novelty, at variance with the definition of l9,rceny, which 
 makes the mind and intent of the owner the test, and. irrecon- 
 cilable with the manner in which these cases have always been 
 dealt with. And it is of. great importance to abide. by cases 
 already decided by the judges, because the, law of larceny being 
 the same in Ireland as in England, the decisions ought to be 
 the same; and the judges in Ireland may feel themselves 
 bound by adjudged cases, recognized in all the text^books, and 
 long acted upon, though all may assume to overrule them, and 
 so they may be an undesirable divergence of opinion. And it 
 must, be :borne in mind that the cases which must, be over- 
 ruled, if this new test be adopted, (Adams's 'case,. Coleman's 
 case, Atkinson's case), are not decisions of the Court for Crown 
 Cases Reserved, ■ but unanimous decisions of all the judges 
 upon cases . submitted to them. However desirable it may be 
 that the law should not be changed, I am not, at liberty to set 
 aside qr qualify the rule of law so long settled, and to say that 
 an acquisition of a chattel by dishonest means is now a felony.. 
 Nor do I feel myself at liberty to leave such a question to the 
 jury. If the transaction is of the nature which I have men- 
 tioned, the dishonest mind'of the person receiving, is imma- 
 terial upon the charge of felony and ought not, therefore, to 
 be left to the jury, otherwise the jury would be misled by their 
 disajDproval of aiiything, dishonest, into the erroneous conclu- 
 sion of a felonious intent to, do that which, is no.t a felony. 
 But the person with whom the transaction takes place, and 
 frqm whom the delivery is received, must be a person qua.litied 
 to enter into the transaction, and capable- of passing the 
 property. In the present case, the transaction was with the 
 clerk of the .j^ostmistress. The clerk was ,the person placed in 
 the office for the purpose, inter alia, of making payments, and 
 taking receipts. He is called. the clerk,, and, therefore, his act 
 within the general scope, of . his authority would = be the act of 
 the postmistress., But it is -suggested that .the .postmistress 
 was not, in any sense the agent of the Postmaster General, but 
 had in each, case 9, separate and particular, authoi-.ity to m,ake 
 
Keg: v. Middleton. ■ 221 
 
 the jfayment. And, upon looking into the act of parliament 
 2i & 25 Vict. C, 14, I should' not' be prepared to decide this 
 case upon the grdund that' the postmistress had a general 
 authority, or more than a particular one' to make the pa^'inent" 
 of ten shillings to the prisoner. And if at the time when the- 
 payment was made the postmistress or clerk had done some 
 act wholly out of the authority, as, for instance payment to a 
 stranger, I should feel a difficulty in saying it must be 
 regarded as the act of a person capable of passing the property 
 in Such a transaction. But upon this it is not necessary to 
 give a decided opinion, because the prisoner was the person to 
 be paid the ten shillings, for which he applied under the order, 
 and the authority was to pay to hirii that sum. The exercise 
 of power in making too large a payment on behalf of the 
 Postmaster General Was therefore only excessive, and accord- 
 ing to the ordinary rule in the exercise of powers, was valid so 
 far as if was within the power, the excess being clearly separa- 
 ble. This is not the case of the postmistress being authorized 
 to' deliver' bne bag of money to' one person, and another bag of 
 money to another person. In that case the prisoner knowing- 
 ly getting the wrong bag woiild get something to which he 
 had nocolor of ■ title. The authority here is to enter into an 
 account with the prisoner by paying him a certain amount, 
 andlnaking a corresponding alteration in the balance, and this 
 is done, the payment is made, and the corresponding alteration 
 in the balance,' but there is a mistake in the amount J)aid, and 
 so in the balance, and it becomes really the ordinary case of 
 over-payment by a banker's clerk by mistake. It appears to 
 me quite' impossible, with due' attention to thd facts, to regard 
 the prisoner afe a stranger intervening in' a transaction between, 
 other parties. No other party was present or was named, and 
 the prisoner entered and left the office in the same character, 
 viz.: that of payee, though he left it as payee of a larger 
 amount than he was entitled to, and carried with him the 
 book, which Was an unanswerable proof that he was payee, and 
 was payee of the larger amount. The prisoner was therefore 
 entitled tobe paid the 10s.' out of the money handed to him, 
 and that being SO, there is a technical' objection to the convic- 
 ti'on that thete aire no particular chattels or pieces of money 
 
222 PHAiEN's Ceiminal Cases. 
 
 in respect of which the charge of larceny can be sustained. 
 But, independent of this technical objection, the duty of the 
 prisoner, if he had acted as he ought to have done, was to 
 have taken 10s. out of the amount, and to have handed the 
 rest to the clerk. He ought at the same time to have handed 
 back his book, and had it corrected, because it charged him 
 with the receipt of £8 odd; but his omission to do this does 
 not, in my opinion, involve him in the charge of larceny. 
 There was no mistake in the person, because the prisoner 
 handed in his order and also his deposit book, and if the clerk 
 had known him well, it would have made no difference. He 
 would still have paid him the wrong amount, because the same 
 cause would have operated, viz. : looking at the wrong order. 
 There was no mistake in the amount — I mean it was not 
 the case of the clerk handing him a hundred pound note when 
 he intended to hand a five pound note, or unknowingly two 
 notes instead of one. He intended paying the prisoner the 
 particular sum; and it was a deliberate act, because he took 
 the amount from a document, and completing the transaction 
 by debiting the prisoner with that sum in his book; so that it 
 was not like the case of a wrong sum being put down by mis- 
 take, and the prisoner snatching it up and running away with- 
 it for the purpose of preventing the mistake from being set 
 right. The mistake was in the supposed amount of the pris- 
 oner's claim. The prisoner applied for 10s., and the clerk 
 thought he was entitled to more, and paid him accordingly, 
 and this over-payment might have been afterwards adopted by 
 the postmistress, so as to make the prisoner chargeable with 
 the balance. The clerk did not the less intend to make the 
 payment which he deliberately made, because he was at the 
 time under the influence of a mistake. He would not have 
 intended to make the payment but for the mistake. Mistakes 
 are constantly occurring, and few people can say that they 
 have not acted under their influence, but their acts remain as 
 acts done at the time, though their effects may be afterwards 
 corrected. !No doubt there was no intention to overpay the 
 prisoner, that is, to produce the effect of over -payment; but the 
 intention was to do the act of paying the larger sum because 
 it was thought to be the proper one. This is the answer to 
 
Reg. v. Middleton. 223 
 
 one argument addressed to us, viz., that the prisoner took up 
 what was intended for another and not for him, and therefore 
 tliere was a taking by him invito domino. The conclusion of 
 law would be quite correct if it could be correctly said that 
 the amount was intended for another. The clerk ought to 
 have intended that amount for another, and would have done 
 so if he had properly informed himself of the facts ; but, un- 
 fortunately for the prisoner^ the clerk did not properly inform 
 himself of the fact, and tnerefore he intended the prisoner to 
 receive the larger amount. The clerk intended A to receive 
 what he ought to have intended B to receive ; but it was not 
 the less his intention that A should receive what he handed 
 over to him. There was only one transaction, and only two 
 parties to it, the clerk and the prisoner, and his fanlt was the 
 work of an instant, and would to an ignorant and illiterate 
 person be connected with some confusion of mind, though the 
 disparity of amount in this case would make a person of any 
 sense correct the mistake. I do not think a man ought to be 
 exposed to a charge of felony upon a transaction of this de- 
 scription, which is altogether founded upon an unexpected 
 blunder of the clerk. The prisoner was undoubtedly at the 
 office for an honest purpose, and finds a larger sum of money 
 than he demanded paid over to him and charged against him. 
 A man may order and pay for certain goods, and by mistake a 
 larger quantity than was paid for may be put in the package, 
 and he may take them away, or he may pay in excess for that 
 which is ordered and delivered. Is the prisoner receiving to 
 be put in the peril of a conviction for felony, in all such cases,, 
 upon the conclusion which may be arrived at, as to whether he 
 knew, or had the means of knowing; and had the animus 
 furandi ? I think not. I think such cases are out of the area 
 of felony, and therefore the aninmis furandi is inapplicable 
 and ought not to be left to the jury. And any conclusion 
 founded upon the finding of the jury, upon a question which 
 ought not to be left to them, must be erroneous, because the' 
 foundation is naught. I think the conviction was against law 
 and ought to be quashed. 
 Conviction affirmed. 
 
224: Fhalen's Geiminxl Oases. 
 
 State v. Hennessey. 
 
 (23 Oliio St., 339.) 
 
 Larceny of several articles at the same time, the transaction being the 
 same, tlie wliole, altho].ii;li they belong to difltjreiit ownei's, m ly be em- 
 braced in one count of the indictment, and cliarged as one oti'ence. 
 
 The defendant was tried and convicted at the October Term, 
 A. D. 1872, of the Conrt of Gommon Pleas of Lucas county, 
 for the crime of larceny. The second count of the indictment 
 charged the defendant with feloniously stealing certain articles, 
 the property of Lncinda E. Bevins, and certain other articles, 
 the property of Ebenezer Bevins, the value of the property 
 belonging to each being stated. 
 
 A bill of exceptions was taken on behalf of the • State, by 
 which it appears that the prosecuting attorney, having proved 
 the taking by the defendant of the articles charged to be the 
 property of Ebenezer Bevins, offered evidence tending to prove 
 the taking by the defendant of the property alleged to belong 
 to Luciiida E. Bevins; and that it was stolen at the same time, 
 and that the' stealing thereof was one and the same transaction. 
 
 The defendant's counsel objected to the introduction of siich 
 testimony. ' The court sustained the objection; and directed 
 the prosecution to confine the testimony to proof of the lar- 
 ceny of the property of either one 'of the two persons, as he 
 might elect, but not of both. 
 
 To the above rulings exceptions were diilytaken by the pros- 
 ecutor. And the case is brought here to obtain the opinion o£ 
 
State v. Hennessey. ii25 
 
 this court upon the q^iestions presented, in pursuance of section 
 158 of the Criminal Code. 
 
 Stone, J. The objection taken by defendant's attorney to 
 the evidence offered on behalf of the State, and the ruling of 
 the court thereon, proceed upon the concession that the goods 
 charged in the second count of the indictment to have been 
 stolen were all taken at the same time, and that the taking 
 thereof, although they were the property of different per- 
 sons, constituted, in fact, but one transaction. This the attor- 
 ney for the state offered at the time to prove, and such was the 
 legal effect of the allegations of the second count of the indict- 
 ment, under which the testimony was offered. In sustaining 
 the objection, and requiring the prosecutor to treat the charge 
 of stealing the property of each alleged owner as being neces- 
 sarily, in law, charges of separate and distinct offences, we 
 think the court erred. 
 
 The particular ownership of the property which is the sub- 
 ject of a larceny does not fall within the deiinition, and is not 
 of the essence of the crime. The gist of the offence consists 
 in feloniously taking the property of another; and neither the 
 legal nor the moral quality of the act is at all affected by the 
 fact that the property stolen, instead of being owned by one, or 
 by two or more jointly, is the several property of different 
 persons. The particular ownership of the property is charged 
 in the indictment, not to give character to the act of taking 
 but merely by way of description of the particular offence. 
 
 It is urged, in support of the ruling of the court below, 
 that whatever might otherwise be the law upon this subject, 
 the taking, in such case, of the property of each owner must, 
 under our statute, be held to be a separate and distinct of- 
 fence, for the reason that the accused, in case he is convicted, 
 and the value of the property taken is found to be less than 
 thirty -five dollars, may be required as a part of the sentence, 
 " to make restitution to the party injured in two-fold the value 
 of the property." This position finds some countenance in 
 the remarks of Sedgwick, J., in Commonwealth v. Andrew, 
 2 Mass., 409. The question, however, did not arise in that case, 
 and was not determined. 
 15 
 
226 Phalen's Ceimipal Cases. 
 
 The argument rests upon the assumption that an order of 
 restitution can be made in a particular case in favor of one 
 party only, and hence the conclusion is reached that this pro- 
 vision of the statute can only be complied with by treating the 
 larceny of the goods of each owner as necessarily a separate 
 and distinct offence. 
 
 The assumption seems to us to be founded in a misconcep- 
 tion of the nature of the prosecution and of the relation to it 
 of the party injured. The prosecution is concluded in the 
 name and by the authority of the state, and the paramount 
 object is the punishment of the offender. The party injured 
 may be incidentally benefited as the result of a conviction, 
 but he is in no sense a party to the proceeding. 
 
 The only parties upon the record, and the only parties in 
 fact, are the state upon the one side and the accused upon the 
 other. When, therefore, the subject of a particular larceny is 
 the. property of different persons, and is found to be of the 
 aggregate value of less than thirty -five dollars, we see no rea- 
 son why the jury may not, properly, be required to return the 
 value of the property belonging to each, as well as the aggre- 
 gate value of the whole, or why, such return being made, 
 orders of restitution in favor of the several owners may not be 
 made conformably thereto. 
 
 Being of the opinion that the court below erred in the rul- 
 ings complained of, we state the following as the rule of law, 
 which, in our judgment, ought to govern similar cases which 
 may now be pending or which may hereafter arise. 
 
 Where several articles of property are stolen at the same 
 time, the transaction being the same, the whole, although they 
 belong to different owners, may be embraced in one count of 
 the indictment, and the taking thereof charged as one offence. 
 
"Wilson v. State. 227 
 
 Wilson v. State. 
 
 (45 Texas, 77.) 
 
 Labcbny. — The stealing of different articles of property belonging to 
 different persons, at the same time and place, so that the transaction is the 
 same, is but one offence against the state, and the accused cannot be con- 
 victed on separate indictments, charging different parts of one transaction 
 as a distinct offence. A conviction on one of the indictments will be a 
 complete bar to the others. 
 
 Keves, Associate Justice. In this case there was no appear- 
 ance for the appellant. The case was submitted for the state 
 on the brief of the assistant attorney-general. 
 
 There were two indictments pending in the criminal court of 
 Dallas City, against the appellant. In the first one, numbered 
 on the docket of the criminal court 2,398, the defendant was 
 charged with the theft of a gelding belonging to Granville 
 Criner, charged in the indictment to have been taken from the 
 possession of D. N. Harden, who, as averred, was holding the 
 animal for the owner. The other indictment, numbered on 
 the docket 2,399, and found at the same term of the court, 
 charged the defendant with theft of a saddle, bridle and 
 blanket, one pair of saddle-bags, one umbrella, three shirts, 
 one pair pants, two pairs of drawers, belonging to D. N. 
 Harden, and taken from his possession on the 10th day of 
 July, 1874, being the same day the gelding was stolen from 
 him. 
 
 It appears that the defendant was first put upon his trial 
 on indictment number 2,399, charging him with stealing the 
 saddle, bridle and blanket, etc., on which charge he was con- 
 
228 Phalen's Ceimiital Cases. 
 
 victed by the jury, and his punishment assessed at a fine of 
 one hundred dollars and one year's confinement in the county 
 jail; and, by the judgment of the court, he was remanded to 
 the custody of the sheriff until the fine and costs were paid, 
 and for the further term of one year, according to the verdict 
 of the jury. 
 
 On his trial for stealing the gelding, as charged in indict- 
 ment number 2,398, the defendant pleaded the former convic- 
 tion on indictment number 2,399, as a bar, and asked to be 
 discharged from fiirther prosecution, because the offence for 
 which he had been tried and convicted was, in fact and in law, 
 the same offence of which he then stood charged. Upon the 
 motion of the district attorney the plea was stricken out by 
 the court. The case being submitted to a jury, a verdict was 
 returned assessing the punishment at fifteen year's confine- 
 ment in the penitentiary. The motion for a new trial being- 
 overruled, the defendant has appealed. The court did not err 
 in refusing to give the special charges asked by the defendant, 
 being one of the grounds of the motion for a new trial. 
 
 The first charge asked by the defendant was to the effect 
 that the state could only prove that G-ranville Crijier, the 
 owner, did not give his consent to defendant to take the geld- 
 ing, by Criner himself, or by the confession of the defendant. 
 The court instructed the jury " that the want of the owner's 
 consent could be established by the evidence of the party from 
 whom the property was taken, or the party who was the owner, 
 or it may be established by facts and circumstances, provided 
 such circumstances so proven are of such a nature as to exclude 
 absolutely every reasonable presumption that the owner gave 
 his consent to the taking." 
 
 The appellant has no just ground to complain of this charge. 
 Lawrence v. The State, 4 Yerg., 145, Free v. The State, 13 
 Ind., 324. 
 
 The second charge refused was given substantially in the 
 general charge, and the court was not required to repeat it. 
 
 The fourth ground of the motion for a new trial presents 
 the material question in the case, to wit: Because the court 
 erred in striking out defendant's plea of autrefois convict. 
 
 Wharton, in his work on American Criminal Law (vol. 1, 
 
Wilson v. State. 229 
 
 sec. 570), says ; " "Whenever the offences charged in the two 
 indictments are capable of being legally identified as the same 
 -offence by averments, it is a question of fact for a jury to 
 determine whether the averments be supported and the 
 offences be the same. In such cases the replication ought to 
 •conclude to the country. But when the plea of autrefois acquit 
 upon its face shows that the offences are legally distinct, and 
 incapable of identification by averments, as they must be in all 
 material points, the replication of miil tiel record may con- 
 •clude with a verification. In the latter case the court, without 
 the intervention of a jury, may decide the issue." The same 
 rules apply to the plea of autrefois convict. 
 
 " The plea," says Bishop, " must set oixt the record of the 
 former conviction or acquittal, including the caption and 
 indictment, and allege that the two offences are the same, and 
 that the defendant in the former is the same person who is the 
 defendant in the latter:" 1 Bishop's Cr. Pro., Sees. 814, 816. 
 " When there are special pleas upon which the jury are to 
 find, they must say in their verdict that the matters alleged in 
 such pleas are either true or untrue: Code Cr. Pro., Art. 3091, 
 Paschal's Dig. 
 
 In the case of Davis v. The State, 42 Texas, 494, the covirt 
 said : " It would certainly be more in harmony with our gen- 
 eral practice to submit both issues, the plea of not guilty, and 
 plea of former conviction to the jury, with directions to first 
 consider the special plea; and if they found that to be true, to 
 proceed no further thaii to return their verdict upon it. The 
 rule to be deduced from the authorities is, that where the 
 offences charged in different indictments are so diverse as not 
 to admit of proof that they are the same, the court may decide 
 the issue without submitting it to a jury. 
 
 In the case of Boggess v. The State, from McLennan 
 county, decided at Austin, 43 Tex., 347, the action of the 
 court sustaining exceptions to the plea was held to be correct. 
 
 In the case at bar we are not able to say that it necessarily 
 appears by the record that the offences are incapable of identi- 
 fication. The plea alleges that they are the same, and that the 
 defendant is the same person in both indictments. The theft, 
 as alleged, in both indictments, is charged to have been com- 
 
230 Phalen's Ceiminal Cases. 
 
 mitted on the same day, and from the same person. In one 
 case he was the owner of the property, and in the other he was 
 in possession, and holding the same for the owner, according 
 to the allegations of the indictment. 
 
 If we look to the evidence, on the trial, for the theft of the 
 gelding, as may be done in considering the motion for a new 
 trial, it will be seen that T>. N. Harden, from whose possession 
 the property was taken, testified that a new saddle, a pair of 
 saddle-bags filled with clothing, a blanket, and an umbrella, 
 strapped on the saddle, were on the horse at the time he was 
 taken, being in part snch articles as are described in the in- 
 dictment. The saddle-bags may have contained the other arti- 
 cles mentioned' in the indictment. The horse and the saddle 
 and saddle-bags belonged to Granville Oriner, leaving it to be 
 inferred that the other articles belonged to the witness Har- 
 den, as averred in the indictment. 
 
 " To sustain this plea, autrefois convict or acquit, it is not 
 suflScient simply to put in the former record; some evidence 
 must be given that the ofEences charged in the former and 
 present indictments are the same. This may be done by show- 
 ing, by some person present at the former trial, what was the 
 offence actually investigated there ; and, if that is consistent with 
 the charge in the second indictment, a presumptive case will 
 thus be made out, which must be met by proof on the other 
 side, of the diversity of tlie two offences; " 1 Bishop's Cr. Pro., 
 sec. 816. Both of the pleas of former conviction, and not guilty, 
 should have been submitted to the jury for their action, un- 
 der the direction of the court, as indicated in the opinion. 
 
 As the case must be reversed for the error in striking out 
 the plea of former conviction, it becomes necessary to inquire- 
 as to what effect shall be given to the plea if found to be true. 
 On the supposition that the horse and saddle and saddle-bags 
 belonged to Oriner, and the other articles belonged to Harden, 
 and that all were taken at same time and place, and from the 
 possession of the same person, the question would be whether 
 the taking in the supposed case would be distinct larcenies, oi- 
 only one offence. The authorities are found to be confiicting 
 on the question. 
 
 Wharton says : " "Where a man simiiltaneously steals two 
 
Wilson v. State. 231 
 
 articles, e. g., a horse and a saddle together — lie may be con- 
 victed on seperate indictments for each offence." Sec. 565, re- 
 ferring to The State v. Thurston, 2 McM., South Carolina, 
 382. In this case the defendant was indicted for stealing cot- 
 ton belonging to three different individuals, and was convicted 
 in the three cases ; and the conviction in one case was held to 
 be no bar to the conviction in the two other. 
 
 The court said : " The stealing of the goods of different 
 persons is always a distinct felony, or may, alt least, be so treated 
 by the solicitor, if in his discretion he thinks proper so to do." 
 Wharton also refers to the case of The Commonwealth v. An- 
 drews, 2 Mass., 409 — an indictment for receiving stolen goods 
 belonging to different persons. 
 
 These cases, and some others, citing English authority, sus- 
 tain the doctrine contended for. The great weight of Ameri- 
 can authorities is believed to be the other way. 
 
 In The State v. Williams, 10 Humph., 101, a case for steal- 
 ing a gelding, one saddle, one blanket, a bridle and martingale^ 
 the court said : " The crime is single. All the things are 
 charged to have been taken at the same time, the same place, 
 and to have been the property of the same individual. The 
 crime being one, is indivisible; that is, the State coiild not 
 maintain separate prosecutions against the prisoner for stealing 
 the horse, for stealing the saddle, for stealing the blanket, for 
 stealing the bridle, for stealing the martingale, for this would 
 be to punish him live times for one offence; and yet this 
 would be the consequence, if the position assumed in behalf of 
 the prisoner were sustained." 
 
 Also, Lorton v. The State, 7 Mo. Eep., 55. Lorton was in- 
 dicted by the grand jury of St. Louis county, for stealing the 
 goods of Richard CurlQ, and, at the same time, was indicted for 
 stealing the goods of John B. Gibson. The defendant pleaded 
 guilty to the first indictment, and, to the second, pleaded a 
 former conviction for the same offence. The prisoner had 
 been sentenced, under the first indictment, to two years' im- 
 prisonment in the penitentiary. On the second trial he asked 
 the coiirt to instruct the jury that if they believed, from the 
 evidence, that the goods of Curie and Gibson were stolen at 
 one and the same time, then the circumstances of said goods 
 
232 Phalen's Ceiminai Cases. 
 
 belonging to separate owners did not constitute several offences, 
 and that if any person, by the same act, and at the same time, 
 should steal the goods of A. B. and C, this constituted but one 
 felony or offence against the State ; and that if they should be- 
 lieve, under the preceding instruction, that the stealing of the 
 goods of said Curl and Gibson was one transaction, then the 
 former conviction of the prisoner operated as a bar. This in- 
 struction was refused. On appeal to the Supreme Court, it 
 was held that the instruction should have been given. 
 
 The Supreme Court said: " The stealing of several articles 
 of property, at the same time and place, undoubtedly consti- 
 tutes but one offence against the law; and the circumstances 
 of several ownerships cannot increase or mitigate the nature of 
 the offence." 
 
 In the general form of indictment at common law, for larceny, 
 the goods are described as belonging to different owners; 3 
 Chitty's Cr. Law, 959. Under this form is found the follow- 
 ing note: "Where several persons' goods are taken at the 
 same time, so that the transaction is the same, the indictment 
 may properly include the whole; but not so, if the taking were 
 at different times." Here the stealing of the goods of differ- 
 ent persons, at the same time, is treated as grand larceny, and 
 as being but one transaction. 
 
 In the case of Jackson V; The State, and the case of Lan- 
 pher V. The State, 14 Ind. R., 327, reporting but one of the 
 cases, the indictment charged the defendant with stealing two 
 horses. It appeared that he stole, with the horses, saddles and 
 bridles, though not so charged in the indictment, and this was 
 objected to as a fatal variance. The court held " that the omis- 
 sion to include in the indictment other articles stolen at the 
 same time, and forming a part of a single offence, was for the 
 defendant's benefit, if it had any bearing in the case. The 
 State cannot split up one crime and prosecute it in parts. A 
 prosecution, for any part of a single crime, bars any further 
 prosecution based upon the whole or a part of the same crime." 
 
 Also, Roberts & Copenherden v. The State of Georgia, 14 
 Ga., 12. In this case the court said: "The plea of autrefois 
 acquit or convict, is sufficient, whenever the proof shows the 
 second case to be the same transaction with the first." 
 
Lowe y. State.. 233 
 
 On the same point, 2 G-raham & "Waterman on New Trials, 
 54, 55. . _- 
 
 Our conclusion is that the stealing of different articles of 
 property belonging to different persons, at the same, time and 
 place, so that the transaction is the same, is but one offence 
 against the State, and that the accused cannot be convicted on 
 separate indictments, charging different parts of one transac- 
 tion as a distinct offence. A conviction on one of the indict- 
 ments bars a prosecution on the other: 
 
 Whether or not the appellant can bring his case within this 
 rule can only appear on a new trial. 
 
 The present case does not affect the punishment of theft, 
 under specified circumstances, as where it is coupled with burg- 
 lary, and the punishment is double, as provided by statute. 
 
 It is not necessary to decide to what extent offences, other 
 than theft, may come within the scope of the opinion. 
 
 For the error in striking out the special plea in bar, the case 
 is reversed and remanded. 
 
 Eeversed and remanded. 
 
 Lowe v. State. 
 
 ,(57 Ga., 171.) 
 
 Larceny. — The indictment alleged that the defendant stole two hogs 
 belonging to diflferent owners, on the same day; Held that the indict- 
 ment charged but one offence. 
 
 Jackson, J. The indictment alleged that the defendant stole 
 two hogs belqnging to different owners, on the same day, and 
 in the same county. He was found guilty, and moved to ar- 
 rest the judgment on the ground that two offences were 
 charged. . , 
 
234 Phalen's Criminal Oases. 
 
 1. "We think the indictment covers one transaction, and 
 charges but one offence, and is good — certainly good as against 
 a motion to arrest judgment after verdict. 
 
 2. The proof only justifies the conviction for stealing one 
 of the hogs. The penalty or punishment prescribed by the 
 law, and inflicted by the judge, being the same, whether one 
 or both were stolen, the verdict is sustained by the evidence, 
 and the motion for a new trial on this ground was properly 
 overruled. 
 
 Judgment affirmed. 
 
 Iewin v. The State. 
 
 (8 Texas Ct. of App., 46.) 
 
 Larceny. — The defendant was charged in one count of the indictment 
 with theft of money belonging to a person therein named, and by another 
 count with the theft of the same kind and amount of money, at the same 
 time and place, from an owner unknown. Seld, that the indictment 
 charged but one offence. 
 
 "WiNKLEE, J. The appellant was tried and convicted of 
 theft of money, on an indictment containing two counts. The 
 first count charges that the money alleged to have been stolen 
 belonged to one Frank Price ; the second count alleges that it 
 belonged to some person to the grand jury imknown. 
 
 The defendant excepted to the sufficiency of the indictment, 
 on the following grounds: "1. Because the offence is not set 
 forth in plain and intelligible words. 2. Because, as concerns 
 the second count, it does not appear that the court has juris- 
 diction to try the case. 3. Because said indictment is duplici- 
 tous in that it charges two separate offences if it charges any- 
 thing." The objections to the indictment were overruled by 
 
Iewin v. The State. 235 
 
 the court, and the niling is assigned as error. Is is not neces- 
 sary that we consider the first two grounds of exception to the 
 indictment further than to say they are untenable. 
 
 With regard to the third ground, the objection being that 
 the indictment charges two separate offences if it charges any 
 offence, we are of the opinion that the indictment is not ob- 
 noxious to the objection, and that instead of charging two sep- 
 arate offences it charges but one. The two counts charge the 
 theft of the same amount and kind of money, averred to have 
 been taken at the same time and place, and by the same per- 
 son, and vary from each other so far as to meet the testimony 
 with regard to the ownership of the money alleged to have 
 been stolen by the defendant, but no further. Mr. Wharton 
 says : " It cannot be objected in error that two or more of- 
 fences of the same nature, on which the same or a similar 
 judgment may be given, are contained in different counts of 
 the same indictment; nor can such objection be maintained, 
 either on demurrer or arrest." Whart. Or. Law, sect. 415. It 
 is true that, as a general rule, the criminal law never permits 
 the joinder of two or more distinct offences in one count. 1 
 Bishop's Or. Proc, sect. 432; Whart. Or. Law, sect. 382; The 
 State V. Darsett, 21 Texas, 656. But as was said by this court 
 in Weathersby v. The State, 1 Texas Or. App., 645, on the 
 authority of Mr. Bishop and Mr. Archbold, " that it is per- 
 missible to charge, in separate counts, two or more offences in 
 the same indictment, seems to be an established rule, as laid 
 down by the standard authorities, in this country." There 
 was no question raised as to an election, in the present case. 
 There was no error in refusing to quash, or in overruling the 
 defendant's exceptions to the indictment. 
 
 The objection to the charge of the court based on the second 
 count in the indictment falls with the ruling on the exceptions 
 to the indictment. Other supposed errors are assigned, which 
 have been considered, but are not necessary to be discussed. 
 There is no valid objection to the conviction of the appellant, 
 and the judgment is affirmed. 
 
 Affirmed. 
 
 Note. — In State v. Stevens, 63 Maine, 284, the indictment charged that 
 John Stevens of &c., " seven national bank bills, each of the denomination 
 
236 Phaxen's Ceiminajl Cases. 
 
 of twenty dollars, and of the value of twenty dollars, of the lawful currency 
 of the United States ; six national bank bills, each of the denomination 
 ■of ten dollars, and of the value of ten dollars, of the lawful money of 
 the United States, and pocket book of the value of one dollar, and one 
 shoe knife of the value of twenty-five cents, of the goods, chattels and 
 money of John S. Kelly of &c." In overruling a motion in arrest of judg- 
 ment. Barrows, J., said: " The spoils of a single larcenous act may all be 
 included in one count, and the indictment is not thereby vitiated on the 
 ground of duplicity. 
 
 " The defendant is charged with but one crime." 
 
 In People v. McCloskey, 5 Parker's Crim. Rep., 57, the defendant was 
 indicted for burglary in the third degree, for breaking and entering with 
 felonious intent, a room used for storing beer. The prisoner had been con- 
 victed of petit larceny for stealing beer upon the occasion of the burglary, 
 which conviction he pleaded in bar of the charge of burglary. 
 
 AiLEN, J. Among other things said : " The conviction for petit larceny 
 before the Court of Special Sessions, constituted no bar to the indictment 
 for burglary. The two crimes are entirely distinct. The court before 
 which the first conviction was had, had no jurisdiction of the higher offence, 
 and consequently a conviction or acquittal for the burglary would have 
 been void as coram nonjudice. As the prisoner could npt have been con- 
 victed of the burglary before the Court of Special Sessions, he cannot, 
 upon being arraigned and tried upon an indictment, in a court having 
 jurisdiction, allege that he is 'twice jjutin jeopardy for the same offence.' " 
 
GooDALL V. State. 23T 
 
 GooDALL V. State. 
 
 (23 Ohio St., 303.) 
 
 Larceny. — Proof of the larceny of silver-plated articles will sustain a 
 charge for the larceny of silver ware. 
 
 The property charged to have been stolen was described as 
 " one silver coffee-pot, one silver' tea-pot," etc. On the trial 
 it was shown that the articles were what are denominated j??a#ec? 
 ware, consisting of only one twenty-fifth part silver. For 
 the prisoner it was argued that the evidence did not support the 
 indictment. 
 
 By the Court. At common law this would have been a 
 fatal variance, and the only question is whether the defect is 
 cured by section 91 of the Criminal Code, QQ Ohio L., 301. It 
 is there provided, that when there is a variance between the 
 statement in an indictment and the evidence offered in proof 
 thereof, " in the name or description of any matter or thing- 
 whatsoever therein named or described, such variance shall not 
 be deemed ground for an acquittal of the defendant, unless the 
 court, before which the trial shall be had, shall find that such 
 variance is material to the merits of the case, or may be pre- 
 judicial to the defendant." 
 
 There being no such finding by the court, it seems to us that 
 the case comes fairly within this provision of the code, and 
 that the defect is cured by it. To what cases of defective de- 
 scription this provision of the Criminal Code can be constitu- 
 tionally applied, or what is the exact line between a " variance '^ 
 
238 Phalen's Ceiminal Cases. 
 
 within its meaning, and a failure of proof, we need not decide 
 in the present case. We think it safe at least to give it effect 
 in cases like this, where the false part of the description being 
 rejected, a perfect legal description remains; and where the 
 court do not find, and it does not appear in proof, that it was 
 material to the merits of the case, or that the defendant was 
 prejudiced thereby. 
 Motion overruled. 
 
 LoN "Williams v. The State. 
 (5 Texas Ct. App., 116.) 
 
 Larceny. — The thing stolen must be correctly described for the pur- 
 pose of identification, and when a party has been indicted for the theft of 
 either gold or silver coin, the kind of coin must be specified. 
 
 EcTOE, P. J. The appellant in this case was indicted for 
 theft of " fifty silver half-dollar pieces, each piece being of 
 the value of fifty cents, the same being corporal personal prop- 
 erty, and altogether of the value of twenty -five dollars, and 
 the property of George Baker," without stating that the money 
 was the current silver coin of the United States of America, 
 or any other government, and without giving any further de- 
 scription of the same. 
 
 The indictment, we believe, is defective because the descrip- 
 tion of the property alleged to have been stolen is not suffi- 
 cient. When gold or silver coin has been stolen, there should 
 be such a description of the money as to call to mind the par- 
 ticular coins, so as to identify the thing stolen; and when it 
 cannot be done by the grand jury, the indictment should state 
 this fact. 
 
"Williams v. The State. 239 
 
 After a careful examination of the cases we have been able 
 to find, which have been decided by courts of last resort both in 
 England and America, we have been forced to the conclusion 
 that the defendant's motion in arrest of judgment should have 
 been granted by the District Court, because the indictment does 
 not give a sufficient description of the property alleged to have 
 been stolen, nor show any reason why such description was im- 
 practicable. There is no question better settled in pleading than 
 that the thing stolen must be correctly described, for the pur- 
 pose of identification, and when a party has been indicted for 
 the theft of either gold or silver coin, the kind of coin must 
 be specified, when this can be done, by the grand jury ; and 
 when it cannot be done, it is proper that the indictment should 
 show that fact. Mr. Wharton says: "Money is described as 
 
 so many pieces of gold or silver coin of the realm, called 
 
 The pieces of the coin must be specified." 1 Whart. Cr. Law, 
 sec. 363. Mr. Bishop and Mr. Chitty recognize the same strict- 
 ness in pleading when a defendant is charged with the theft of 
 money: 2 Bishop's Cr. Proc, sections 703, 704; 2 Chitty's Cr. 
 Law, 947, 960. See also The State v. Longbottom, 11 Humph., 
 39; The Commonwealth v. O'Connell, 12 Allen, 183; The 
 People V. Ball, 14 Cal., 101; The People v. Cohen, 8 Cal., 42. 
 
 In the case of The State v. Longbottom, the Supreme Court 
 of Tennessee says : " When personal chattels are the subject 
 of an offence, as in larceny, they must be described specifically 
 by the names usually appropriated to them, and the number 
 and value of each species or particular kind of goods stated: 
 2 Hale's P. C. 182, 183; Arch. Cr. PI. 49, Lond. ed. Money 
 should be described as so many pieces of the current gold or 
 silver coin of the realm. And the species of coin must be 
 stated by the appropriate name." 
 
 In this respect the indictment in the case at bar was clearly 
 defective, and the motion in arrest of judgment should have 
 been granted in the court below. The judgment of the dis- 
 trict court is reversed and the cause remanded. 
 
 Eeversed and remanded. 
 
 Note.— In People v. Ball, 14 Cal., 101, the defendant was charged with 
 the larceny of " three thousand dollars lawful money of the United 
 
240 Phalen's Oeiminal Oases. 
 
 States." In holding the description insufficient the Supreme Court said : 
 "This description is not sufficient. In an indictment for larceny, money 
 should be described as so many pieces of the current gold or silver coin 
 of the country, of a particular denomination, according to the facts. The 
 species of coin must be specified. Arch. Cr. PI., 61; Whart. Cr. Law, IBS.'' 
 
 In Rhoons et al. v. Commonwealth, 3 Duvall (Ky.), 159, the appellants 
 were charged with stealing " one lot of treasury notes, called greenbacks, 
 the issue of the treasury of the United States of America, and one lot of 
 Kentucky bank notes, and fifteen dollars in gold coin,'' The court said: 
 "On the subject of indictments, our criminal code recognized and estab- 
 lished the modern common law, rightly understood and rationally ap- 
 plied. It dispenses with form, and requires substance only. And what 
 is now substance at common law is substance under the code — and that is 
 every fact necessary to constitute the specific crime charged — alleged with 
 only such precision as : 
 
 " 1st. To enable the court to see that, admitting the fact, it has jurisdic- 
 tion, and that the Imputed crime has been committed by the accused. 2d. 
 To enable the accused to understand the precise charge, and, without sur- 
 prise, to prepare for defence against the proof which may be admissible 
 to sustain the specific charge. 3d. To make the verdict and judgment 
 certainly available as a bar to any subsequent prosecution for the same 
 criminal act. According to this test, the indictment in this case seems 
 to us insufficient to authorize conviction." 
 
 " One lot of treasury notes, without any specification of denominationf 
 number or value, is too indefinite for the identification of the thing 
 taken, or of any part of it ; and one lot of Kentucky bank notes, without 
 even a specification of the bank, is still more indefinite. 
 
 " Neither of tliese charges sufficiently notified the accused of the facts to 
 be proved ; and a conviction on either of them might not be availably plead- 
 ed in bar of another indictment for the same oflfence. A minute description 
 of all the treasury and bank notes might be impossible, and, therefore,is not 
 required. But a nearer approach to it than this indictment makes may 
 be presumed to have been easy, and ought to be required. A specification 
 of even one of the notes in each lot, so as to identify it, might be suffi- 
 cient to answer the ends of the test just defined. 
 
 " Nor can fifteen dollars in gold coin, without any specification of the 
 number of pieces, or of the character or identity of the coin, or of any 
 portion of it, be deemed sufficient for all the purposes of the law." 
 
 In Barton v. State, 20 Ark., 68, the appellant was charged with the lar- 
 ceny of one hundred and thirty dollars. In reversing the judgment the 
 court said: 
 
 " The objection to the indictment is, that it does not specifically describe 
 the money alleged to have been stolen. 
 
 " The appellant is charged with stealing ' one hundred and thirty dol- 
 lars,' etc. Whether the subject of the larceny was coin, United States 
 treasury notes, or bank notes, is not alleged. 
 
 " If the term ' dollars ' may be said to have a legal meaning, and to 
 import the national coin, Rowe v. Green, et al., 2i Ark., we are left to 
 
•Williams v. The State. 241 
 
 conjecture what kind of coin the appellant was charged with stealing. It 
 is a loose attempt at a code indictment. 
 
 "The code provides that: ' The only ground upon which a judgment 
 shall be arrested is, that the facts stated in the indictment do not consti- 
 tute a public offence within the jurisdiction of the court; and the court 
 may arrest the judgment without motion, on observing such defect.' 
 Gautt's Dig., sec. 1975. 
 
 " What is the meaning of this section of the code ? To charge a man 
 with shooting at the moon would not be charging him with a public of- 
 fence. To charge him with stealing in Texas would not be charging an 
 offence within the jurisdiction of an Arkansas court. To charge a maa 
 with larceny merely, would be charging him with a public offence by a 
 technical name only. Is it in such instances, or similar instances only, 
 that the judgment may be arrested ? We think not. 8uch could not have 
 been the intention of the framers of the code. It requires certain facts to 
 make any public offence of whatever name, and these facts, well ascer, 
 tained in law, and easily apprehended by ordinary intelligence, should be 
 alleged in the indictment whether framed under the code or under the 
 common law." 
 
 In Low V. People, 3 Parker Crimiual R. Tlie first count in the in- 
 dictment described the property as "one pocket book of the value of 50 
 cents, and $60 in bank bills, current money, of the value of $60;'' and in 
 the fifth count the same property was described as, " one pocket book of 
 the value of 50 cents, and its contents, to-wit, bank bills, being current 
 money of the State of New York, of the value of $80." In holding the 
 description insufficient, Wright, J. said ; " The first and fifth counts des- 
 cribe tlie property stolen as " sixty dollars in bank bills, current money of 
 the value of sixty dollars," and "bmk bills, being current money of the 
 State of New York, of the value of sixty dollars.'' This, it appears to me 
 is too general and without precedent. The counts contain no statement as 
 to the number of bills stolen, whether two or twenty ; and number is apart 
 of the description applicable to chattels, and should not be omitted. 
 Archbold's Orim. Plead., 45; 2 Russell on Crime, 107; 3 Hale, 1H3; Barb. 
 Grim. Law, 168-69. In an indictment for stealing bank notes, it is not nec- 
 essary to set out the instrument verbatim. They may be described in a 
 general manner, as a bank note ; nor is it necessary to state the value of 
 each note ; but the number must be stated, and then it is sufficient to state 
 the value in the aggregate. In respect to number, the indictment should 
 be certain. Archbold says: " When personal chattels are the subject of an 
 offence, as in larceny, they must be described specially by the name usu- 
 ally appropriated to them, and the number and value of each species or 
 particular kind of goods stated. Arch. Cr. PI., 49 ; 2 Hale, 183, 183. The 
 omission to state any number of bills stolen, may be technical; but in au 
 indictment for felony, when the liberty of the citizea is placed in jeop- 
 ardy, there should be certainty and precision. The prosecution should at 
 least be called upon, to a reasonable extent, to specifically apprise the de- 
 fendant of the charge against him." 
 
 In State v. Murphy, 6 Ala., 846, the property was described as "sundry 
 
 16 
 
242 Phalen's Ceiminal Cases. 
 
 pieces of silver coin made current by law, usage and custom within the 
 Slate of Alabama, amounting together to the sum of five hundred and 
 thirty dollars and fifteen cents, and this was held to be insufficient. 
 
 In State V. Longbottom, 11 Hump., (Tenn), 39, the property was des- 
 cribed as " ten dollars good and lawful money of the State of Tennessee," 
 and on conviction, the judgment was arrested, and the State appealed 
 from the order arresting judgment. 
 
 The Supreme Court said: "Where personal chattels are the subject of 
 an otfeuce, as larceny, they must be described specifically by the name 
 usually appropriated to them, and tlie number and value of each species 
 of particular kind of goods stated; 3 Hale, 182-3; Arch. Cr. PI., 49. 
 Money should be specified as so many pieces of the current gold or silver 
 coin of the realm. And the species of coin must be stated by its appro 
 priate name; Arch. 50." Tlie court held the description insufiicient. 
 
 In State v. Ben-yman, 8 Nevada, 262, the indictment charged " the said 
 •defendants, Joseph Oxford and James Berryman, on the thirtieth day of 
 July, A. D., 1872, at the county of Lander, in the. State of Nevada, . . 
 six hundred and ten pounds of silver-bearing ore, of the value of eight 
 hundred dollars, of the property of the Manhattan Silver Mining Com 
 pany of Nevada, a corporation," etc. It was claimed by the defendant that 
 the property alleged to have b:en stolen savored of the reality, and that 
 there was no sufficient statement of facts in the indictment to show that 
 the thing taken was personal property. In holding the description suffi- 
 cient, Hawley, J. said : " The character of the property, whether real or 
 personal, must be determined by the statement of facts set out in the in- 
 dictment. Sec. 341 of the Criminal Practice Act provides that " the words 
 used in an indictment shall be construed in the usual acceptance in com. 
 mon language, except such words and phrases as are defined by law, 
 which are to be construed according to their legal meaning '' 
 
 The word ore is not defined by law, and must therefore be construed in 
 its usual acceptation. The words " silver-bearing ore," as used in the in- 
 dictment, have reference to a portion of vein matter which has been ex- 
 tracted from a lode and assorted, separated from the mass of waste rock 
 and earth and thrown aside for milling or smelting purposes, or taken 
 away from the ledge. ... In our judgment, the language used in the 
 indictment necessarily impl ies that the ore ha 1 been severed from the 
 freehold prior to the time of its asportation by Oxford and Berryman. We 
 think that the act charged is stated with sufficient certainty to enable the 
 court to pronounce judgment according to the right of the case, and that 
 it is all that the statute, in this respect, requires." 
 
 In The People v. Williams, 35 Cal., 673, the indictment charged the 
 taking and carrying away "from the mining claim of the Brush Creek 
 Gold and Silver Mining Company . . flfty-two pounds of gold-bear- 
 ing quartz rock." The court said that the indictment was " entirely silent 
 as to whether the rook was a part of a ledge, and was broken off, and im- 
 mediately carried away by the defendant, or whether, finding it already 
 severed, he afterwards removed it." And for the uncertainty in the des- 
 cription it was set aside. 
 
Simpson v. The State. 243 
 
 In State v. Stevens, 63 Maine, 284, the indictment cliarged that John 
 Stevens of, &c., "seven national banlc bills, each of the denomination of 
 twenty dollars, and of the value of twenty dollars, of the lawful currency 
 of the United States ; six national bank bills, each of the denomination of 
 ten dollars, and of the value of ten dollars, of the lawful money of the 
 United States ; one pocket book of the value of one dollar, and one shoe 
 knife of the value of twenty-five cents, of the goods, chattels, and money 
 of John S. Kelly of, &,c. The defendant was convicted and moved in ar- 
 rest of judgment, because, among other reasons, the bills said to have 
 been stolen are not alleged to have been genuine, or issued by any national 
 bank, and that the description .was uncertain and insufficient. Brown, J. 
 said : " It would commonly be difficult, if not impossible, for those who 
 lose bank bills by theft to designate the banks by which the various bills 
 were issued, and we do not think the constitutional requirements which the 
 defendants' counsel invokes, call upon us to facilitate the escape of thieves 
 in the manner proposed. The indictment upon which the defendant was 
 convicted, describes the number and deuoraination of the bank bills 
 stolen, and alleges the value of each. It was not necessary to set forth 
 the names of the banks by which they are issued, nor to assert their 
 genuineness more distinctly than it is done in the allegation of the value. 
 Even the description of them as " lawful currency, etc., may well be re- 
 jected as surplusage. Tliat whicli is made punishable as a crime by the 
 statute, is distinctly charged with as much particularity as the nature of 
 the case will ordinarily permit. Commonwealth v. Richards, 1 Mass., 
 337; Eastman v. Commonwealth, 4 Gran, 416.'' 
 
 John Simpson t. The State. 
 
 (10 Texas Ct. App.,681.) 
 
 Labcbny. — Where a person or thing, necessary to be mentioned in an 
 indictment, is described with unnecessary particularity, all the circum. 
 stances of description must be proved, for they are all made essential to 
 the identity. 
 
 WiNiGLEK, J. The appellant, being on trial charged with 
 the theft of five silver certificates, United States currency 
 bills, of the denomination and value of ten dollars each, and 
 
244 Phalbn's Criminal Cases. 
 
 of the aggregate value of fifty dollars, it became a question 
 whether the proof adduced on the trial was sufficient to sup- 
 port the descriptive averments in the indictment as to the 
 silver certificates alleged to have been stolen. It is averred in 
 the indictment that the five silver certificates alleged to have 
 been stolen were United States currency bills, and that each 
 one of the silver certificates was of the denomination of ten 
 dollars and of the value of ten dollars ; and the aggregate value 
 is also averred at fifty dollars. It became necessary, in order 
 to a conviction, that the State should substantiate b}' testimony 
 these descriptive averments contained in the indictment: first, 
 that the silver certificates mentioned in the indictment, or a 
 portion of them at least, had been issued by authority of the 
 United States government, and secondly, that the silver certifi- 
 cates, or a portion of them at least, were of the value alleged 
 in the indictment. 
 
 The court in its general charge, having omitted to give the 
 jury an appropriate charge on this subject, the _ defendant's 
 counsel attempted to supply and correct the omission in the 
 charge of the court by requesting that special instructions be 
 given to the jury to the effect that every material allegation 
 charged in the indictment must be proved as alleged. This 
 instruction was refused by the court. The ground of the 
 refusal being, as stated by the judge, that the law applicable 
 to the case had been given in the general charge, counsel for 
 the defendant requested other special instructions to be given 
 to the jury, calling their attention especially to the necessity 
 that the proof must show that the silver certificates had been 
 issued by authority of the United States government; and also 
 that the silver certificates were of the value of ten dollars each, 
 as alleged, in order to warrant a conviction. These instructions 
 were also refused. It is conceded that these several special 
 instructions were in some respects inartistically framed, yet it 
 is believed that they were sufficient to call the attention of the 
 court to what we regard as an important omission in the gen- 
 eral charge. 
 
 However this may be, we are of opinion that it was indis- 
 pensable that the averments descriptive of the property alleged 
 to have been stolen, as set out in the indictment, should have 
 
Simpson v. The Static. , 246 
 
 been proved substantially as averred, and that the jury should 
 have been properly informed on this branch of the subject, as 
 a part of the law of the case, and whether requested or not. 
 It cannot longer be considered an open question in this court 
 that the descriptive averments incorporated in an indictment 
 for the purpose of identifying the offence charged, as, for in- 
 stance, for the purpose of identifying property alleged to have 
 been stolen, must be proved as alleged; and the rule applies 
 even where the averment of identity is unnecessarily par- 
 ticular. Warrington v. State, 1 Texas Ct. App., 168; Courtney 
 V. State, 3 Texas Ct. App., 382; McGee v. State, 4 id., 625; 
 "Watson V. State, 5 id., 11; Hampton v. State, 5 id. 463; Allen 
 V. State, 8. id., 860. 
 
 Where a person or thing, necessary to be mentioned in an 
 indictment, is described with unnecessary particularity, all the 
 circumstances of description must be proved; for they are all 
 made essential to the identity. 1 Greenl. § 66. A plain appli- 
 cation of the rule and the reason for it is given in the elemen- 
 tary works on evidence, as follows : " In an indictment for steal- 
 ing a Mack horse, the animal is necessarily mentioned, but the 
 color need not be stated ; yet if it is stated, it is made descrip- 
 tive of the particular animal stolen, and a variance in the 
 proof of the color is fatal." 1 Stark. Ev., 374; 1 Greenl, Ev.,§ 66. 
 
 The case of theft of particular kinds of property, for ex- 
 ample, theft of a horse, which is punishable by confinement 
 in the penitentiary, without regard to the value of the horse, 
 proof of value is of but little moment; but in cases of theft 
 generally, and when a particular punishment is not prescribed 
 without regard to value, proof of value is necessary in order 
 to determine the punishment; the law being that theft of 
 property of the value of twenty dollars, or over that amount, 
 is punishable as a felony by confinement in the penitentiary, 
 not less than two nor more than ten years (Penal Code, art. 
 736) ; whilst theft of property, under the value of twenty dollars, 
 is punished by imprisonment in the county jail not exceeding 
 one year, during which time the prisoner may be put to hard 
 work, and by fine not exceeding five hundred dollars, or by 
 fiuch imprisonment without fine: Penal Code, art. 736; Shep- 
 pard V. State, 1 Texas Ct. App., 622. 
 
246 Phalen's Ceiminajl Cases. 
 
 Because of error in the failure of the court to cha,rge the 
 law of the case as made by the proofs, and because there is 
 no pertinent evidence of the value of the property alleged to 
 have been stolen, the court below should have granted the de- 
 fendant a new trial. Other errors are complained of, which 
 are not likely to arise on another trial ; but for those pointed 
 out above, the judgment must be revei'sed and the cause- 
 remanded. 
 
 Reversed and remanded. 
 
 Note. — InRanjelv. State, 1 Texas Ct. App., 461, the indictment charged 
 the defendant with the theft of a bay gelding, branded P. A. R. The evi- 
 dence of tlie prosecuting witness showed that the horse which he lost was- 
 branded P. R. A. Held, that the variance could not be treated as surplus- 
 age, that it was unnecessary to use such minuteness of description in the 
 indictment, but having been so used by the pleader, it was made material 
 and essential to the identity of the thing stolen, and that the variance was 
 fatal. 
 
 In People v. Fallon, 6 Parker Crira. Rep., 256, the defendant was 
 charged with the larceny of " four written promises for the payment of 
 money, commonly called bank bills and notes, of the nature and denomi- 
 nation of five dollars each ; one written promise for the payment of money 
 commonly called a bank bill and note, of the value and denomination of 
 ten dollars, from the person of Daniel Main, of the money, goods, chattel 
 and personal properly of Daniel Main, then and there being found, then 
 and there feloniously did steal, take and carry away, against the peace,"' 
 etc. A motion to quash the indictment for uncertainty was overruled and 
 the charge held sufficient. But the motion was made after verdict, and 
 the court said: 'The fact that the $10 bill had been paid out and received 
 as $10 was some evidence of its value, and the presumption is that it 
 was a genuine bill, and of the value of ten dollars." 
 
CitocKE'fT V. State. 24.7 
 
 Ceockett v. State. 
 
 (5 Texas Ct. App., 536.) 
 
 Larcbny. — Ownership, care and management of the property, whether 
 the same be lawful or not, is suflaoient ownership to maintain a prosecu- 
 tion for the larceny thei'eof. 
 
 The case is sufficiently stated in the opinion. 
 
 White, J. The indictment alleged the ownership of the 
 cow to be in Madam Benson. Proof showed the cow was the 
 community property of Madam Benson, and the three minor 
 children of her deceased husband and herself; that the minors 
 lived with their mother, who was head of the family; and 
 that the cow was taken from its accustomed range. 
 
 A bill of exceptions was saved to the third paragraph of 
 the charge to the jury, which was: " 3. If the cow of Madam 
 Benson was in its usual and accustomed range, and if the same 
 was fraudulently taken by defendant and appropriated to his 
 use, so as to come within the definition of theft, as already 
 given you in charge, then such cow was in the possession of 
 the owner, and no further possession of the owner is necessary 
 to be shown. If the proof shows that the cow was owned by 
 Madame Benson, and her children by Benson, at Benson's 
 death, and if Mrs. Benson, as widow of deceased Benson, was 
 the head of the family, and as such she claimed to and did 
 control, use, care for, and possess for herself the cow alleged 
 to have been stolen, then such ownership, jointly with her 
 minor children by Benson, and possession by herself, is suffi- 
 cient; and it is of no importance that the ownership was 
 partly in the minor children of Benson, deceased." 
 
248 Phalbn's Ceiminal Cases. 
 
 We see no error in this charge. An animal is in the pos- 
 session of its owner when in its accustomed range: Jones v- 
 The State, 3 Texas, Ct. App., 498. " Possession of the person so 
 unlawfully deprived of property is constituted by the exercise 
 of the actual control, care, and management of the property, 
 whether the same be lawful or not." Pas. Dig., art. 2387; 
 Gaines v. The State, 4 Texas Ct. App., 330. 
 
 Upon the other doctrine, enunciated in the latter portion of 
 the charge, the case of Henry v. The State, 45 Texas, 84, is 
 directly in point. Henry was indicted for the theft of " two 
 certain oxen," the property of Mrs. Mary Cobb. The testi- 
 mony showed that the property belonged to Mrs. Cobb, and 
 the children of her deceased husband, on whose estate there 
 had been no administration, and was in possession of Mrs. 
 Cobb before the theft. It was held that the proof sustained 
 the allegation of ownership, and the conviction was sustained. 
 See also Ware v. The State, 2 Texas Ct. App., 547. 
 
 We are unable to perceive any error in the proceedings had 
 on the trial below, which resulted in the conviction of this ap- 
 pellant; and the judgment is therefore affirmed. 
 
 AflSrmed. 
 
 State v. Fenn. 
 (41 Conn., 590.) 
 
 Larceny. — Defendant's note was left with a bank for collection ; an 
 officer of tlie bank took the note to defendant's office to demand payment; 
 defendant asked to see the note; it being handed to him by the officer, he 
 walked off with it, and never returned it. Upon these facts a conviction 
 of larceny was sustained. 
 
 The note was payable to W. or order, and wns by W. endorsed to H., 
 and by H. endorsed in blank and left by him at the bank for collection. 
 
State v. Fenn. 249 
 
 The uote was described in tlie iaformation as Uie property of H. Held 
 tliat tlie ownersliip was properly alleged. 
 
 The information cliarged that at the town of New Haven, on 
 the 3d day of May, 1873, William S. Fenn, of said town, with 
 force and arms, one certain promissory note, dated November 6, 
 1872, signed by the said Fenn, for the payment of twenty- 
 three hundred dollars, for value received, to F. J. Whittemore 
 or order, on the 1st day of May, 1873, and by the said F. J. 
 "Whittemore endorsed, and by him delivered to Henry A. War- 
 ner, of said New Haven, a more particular description of 
 which is to the attorney for the State unknown, of the goods 
 and chattels of said Henry A. Warner, and of the value of 
 twenty -three hundred dollars, feloniously did steal, take and 
 carry away, contrary to the statute in such case made and pro- 
 vided, and against the peace. 
 
 Upon the trial William T. Bartlett testified as follows: On 
 the 30th of April, 1873, I was, and ever since have been, the 
 treasurer of the Union Trust Company of New Haven, a com- 
 pany engaged in banking business, and on that day Henry A. 
 Warner left with me as such treasurer, a note for collection, 
 the proceeds to be placed to the credit of Warner if collected, 
 but if not paid on demand, the note to be protested in the 
 
 usual manner I had seat notice to Fenn of the 
 
 time the note fell due, and on the 3d day of May, 1873, the 
 note not being paid, I took it, being a notary, to demand pay- 
 ment and protest it. Having the note, I called on Fenn at his 
 office in the Globe building. New Haven. I said to Fenn : " I 
 came to make an official demand for the payment of this note," 
 at the same time holding the note in my hand. Fenn said: 
 "You wish it paid, do you?" 1 said: "I do." Fenn then 
 said: " Do you wish it paid to-day?" I said: " Certainly, 
 it is due to-day." Fenn then said: "Let me see the note." 
 I placed the note in his hand as he was sitting down. He took 
 it and turned it over and examined the endorsements, as was 
 customary, and then asked me: " What is the amount of in- 
 terest due ? " I replied that I had not computed it, understand- 
 ing that he was not ready to pay it. Fenn then said: "Well, 
 figure the interest." I then looked about for a bit of paper 
 
260 Phalen's Criminal Cases. 
 
 and commeiiced. to figure the interest, the note still being in his 
 hand; he had moved off some distance from me at that time. 
 While I was busy computing the interest, Fenn said: "I 
 would like to speak to a friend a moment," aud stepped out, 
 I waited as I supposed a suflBcient time for his return, and he 
 not appearing, I stepped to the door leading from the room at 
 the top of the stairway leading to the street, I stopped for a 
 short time, when Fenn appeared coming from an inner apart- 
 ment. He was about to pass me and go down the stairs to the 
 street, and said; " Step into my office a moment, and I will 
 step out and get the money." I said that he had better leave 
 the note with me while he went out. He then said he had 
 handed the note to a friend, or placed it in the hands of a 
 friend. I said to Fenn that he could not leave the building 
 till he produced the note. He turned and went into his office. 
 I then went to the foot of the stairs and saw a policeman, and 
 requested him to sit in the room occupied by Fenn till my re- 
 turn Upon my return Fenn said he could not 
 
 produce it, as it was in the hands of a friend. I said: " Can 
 you produce the note if you go to see your friend?" . . 
 He said he could see. Not getting any satisfaction, I went out 
 and put the matter in the hands of John W. Ailing, city at- 
 torney. Mr. Ailing drew up the necessary papers and went to 
 Fenn with me. He said to Fenn that he had got himself into 
 trouble, and he had better produce the note. Fenn said he 
 could not do so. Ailing then asked Fenn what he had done 
 with the note. He replied that he went to the water closet and 
 used it. Ailing said it was an important matter, and he had 
 better go to the water closet and see if it couldnot be found , 
 
 and I believe they went They soon returned and 
 
 reported that they had examined the water closet without hav- 
 ing found the note. I then left the matter in the hands of 
 the city attorney, and returned to my place of business. 
 
 John W. Ailing, city attorney, and George S. Selleck, police- 
 man, gave similar testimony in behalf of the State. 
 
 William S. Fenn, the accused, testified in his own behalf as 
 follows : The note was given by me to F. J. Whittemore for 
 $2,300, as part of the consideration on a trade with Whitte- 
 more in exchanging land. I agree with the statement of 
 
State v. Fknn. 251 
 
 iJartlett and Ailing as to what took place at my office. When 
 Bartlett handed me the note I had no intention of destroying 
 it. The water closet is situated at the west end of the hall, on 
 the same floor with my office. I had the note in my hand, and 
 as I rose from the seat, when 1 threw the paper into the bowU 
 the note went with it. This note was secured by mortgage. 
 
 Upon cross-examination, the defendant insisted that what he 
 did with the note was an accident, and that Whittemore had 
 defrauded him in the exchange of land for which the note was 
 given. He also introduced other evidence to the same point, 
 and claimed to have proved the fraud. On the other hand the 
 State offered evidence to rebut the claim of fraud, and claimed 
 to have proved, that the exchange of land was a fair transac- 
 tion, and perfectly understood by Fenn, and that there was no 
 fraud whatever. 
 
 The defendant requested the court to charge the jury as fol- 
 lows: 
 
 1. That the defendant was entitled to an acquittal because a 
 full and particular description of the note was known to the 
 states' attorney at the time of instituting the prosecution, and 
 was not given in the information. Which request was refused. 
 
 2. That the defendant was entitled to an acquittal because 
 the description of the note offered in evidence and the indorse- 
 ment were each materially variant from the note and indorse- 
 ment described in the information. Which request was re- 
 fused. 
 
 3. That the defendant was entitled to an acquittal because 
 there was no legal evidence introduced to prove that Warner 
 was the owner of the note; but, on the contrary, his blank in- 
 dorsement on the note showed that the title was not in him ; 
 and because there was no evidence that Whittemore ever de- 
 livered or endorsed the note to Warner or sold it to him. 
 
 The court did not so charge the jury, but charged on this 
 point, as follows: 
 
 " The State is bound to prove, and the jury must be satis- 
 fied, from the evidence, beyond a reasonable doubt, that the 
 note in question, when taken by the defendant, was the prop- 
 erty of Henry A. Warner, as alleged in the information. The 
 note, it is conceded, was originally given by the defendant to 
 
252 Phalen's Criminal Cases. 
 
 "Whittemore, and payable to his order ; it must ■ therefore be 
 proved that the title to the note passed from Whittemore to 
 Warner, and that when taken, it was the property of Warner. 
 It is alleged in the information that Whittemore indorsed and 
 delivered it to Warner, and evidence to satisfy you of this fact 
 is essential. A note payable to order does not pass by delivery 
 alone, but must also be indorsed. The State claims to have 
 proved that Warner was the owner of the note, from the. testi- 
 mony of the defendant, that he gave the note to Whittemore ; 
 that on the back of the note were the words : " Pay Henry A. 
 Warner. F. J. Whittemore." And from the testimony of 
 Bartlett, that he received the note from the hands of Warner, 
 with instructions to collect it and place the proceeds to War- 
 ner's credit, and if not collected, to protest it; and it will be 
 for the jury to determine, from all the evidence in the case, 
 whether Warner owned the note at the time it was taken by 
 the defendant. If you are not satisfied, from the evidence, 
 that Warner was such owner, it will be your duty to return a 
 verdict of not guilty. The fact that the note was indorsed in 
 blank by Warner will not prevent it from being his property, 
 provided such indorsement was made merely for purposes of 
 collection." 
 
 4. The defendant further claimed that the court should 
 charge the jury that he was entitled to an acquittal, because 
 there was no evidence introduced to prove that the note at the 
 time the same was taken by the defendant was of any value 
 whatever. 
 
 The court did not so charge the jury but instructed them as 
 follows : " The State is bound to prove that the note was of 
 some value, and if not proved the jury must acquit the de- 
 fendant. The jury are not restricted to direct evidence show- 
 ing the value, but may consider any evidence, though indirect, 
 from which the value may naturally be inferred." 
 
 5. That the court should instruct the jury that the act of 
 taking, to constitute theft, must be private, or designed by the 
 taker to.be private, and without the knowledge of the owner 
 or the public, and further, that by the term " felonious intent," 
 as applied to theft, was meant an intent to deprive the owner 
 of his property privately without his knowledge or the knowl- 
 
State v. Fenn. 253 
 
 edge of the public, and to convert the same to the use of the 
 taker in such a manner as to prevent the owner from knowing 
 where his property was, or who had taken it. 
 
 The court did not so charge the jury, but instructed them as 
 follows: " It is essential that the evidence convince the jury 
 beyond a reasonable doubt that the defendant took this note, as 
 alleged, with a felonious intent. "Without a specific and actual 
 intent to steal, there can be no theft, and the taking, though 
 wrongful, would be only a trespass, and the act of taking the 
 note, and this felonious intent to steal must both concur in fact 
 and in point of time. This felonious intent must be to de- 
 prive the owner of his property on the one hand, and on the 
 other the taker must intend some gain or advantage to him- 
 self, in distinction from a mere act of mischief to another. 
 But it is not legally essential to constitute the crime of theft 
 that the taking be secret or in the night, though the jury will 
 bear in mind that such circumstances are most pregnant evi- 
 dence to manifest the intent. If the taking was secret or de- • 
 signed to be so, or was under the cover of darlmess, it would 
 be the strongest kind of evidence to show a felonious intent; 
 and if, on the other hand, the taking was open, or in the pres- 
 ence of the owner or of other persons, it would be equally 
 strong evidence that the taking was without a felonious intent, 
 and therefore a mere trespass ; but these things are matters 
 of evidence for the jiiry, who alone are to find the intent 
 upon consideration of all the circumstances; and if instead of 
 a clandestine or private taking, or a taking under cover of 
 darkness, designed by the taker to conceal his outward act, 
 there be a taking by stratagem, artifice or fraud, designed by 
 the taker to conceal his mental purpose, which is percisely the 
 same in both cases, then the act is the same and the crime the 
 same in both cases." 
 
 6. The defendant further claimed that the court should in- 
 struct the jury that the act of taking, accompanied by all the 
 circumstances stated by the witnesses on the part of the State 
 as matter of law, did not constitute theft. But the court did 
 not so instruct tne jury. 
 
 7. Also that the claim of the act, that the possession of the 
 note was obtained by fraud, was not supported by the evidence,. 
 
254 Phaien's Ceiminal Cases. 
 
 that the defeadant asked Bartlett to let him see the note, and 
 that therefore Bartlett handed Fenn the note, and that all the 
 subsequent acts and declarations of Fenn after he had obtained 
 possession of the note, had no bearing upon this question of 
 fraud in obtaining it. 
 
 This the court refused, and instructed the jury as follows : 
 
 " It will be for the jury to decide what Fenn meant by the 
 request to Bartlett to let him see the note. Did he intend 
 thereby to have Bartlett understand that he wanted the mere 
 temporary possession of the note, merely to see if it was genu- 
 ine, to examine indorsements and signatures, to compute the 
 interest, or to pay it, while at the same time his real purpose 
 was, in that way permanently to deprive Bartlett of the note 
 and to steal it? The request to see the note might have an 
 honest or dishonest purpose, and to enable the jury to deter- 
 mine the real purpose and meaning of the request, the subse- 
 quent acts, false declarations and conduct of the accu.sed, may 
 be received and considered by the jury, although it is obvious 
 that if specific acts of falsehood, artifice or fraud could be 
 shown prior to the delivery of the note by Bartlett to Fenn, the 
 evidence would be more weighty." 
 
 8. The defendant further claimed that the court should in- 
 struct the jury that they would not be justified in finding the 
 defendant guilty, although at the time he received the note 
 from Bartlett, he intended to convert it to his his own use, un- 
 less they should also find that he took it without the consent 
 of Bartlett, or that he obtained Bartlett's consent to his taking 
 it by falsehood, or by force, or by fraud. 
 
 Upon this point the court gave the jury the following in- 
 struction: 
 
 " In order to find the defendant guilty, the jury must find 
 that at the time he asked Bartlett to let him see the note, he 
 had a felonious intent existing in his mind, and if the jury 
 should find that, he obtained possession of the note from Bart- 
 lett by stratagem, artifice, or fraud, and that he falsely pre- 
 tended to him that he wanted to see the note for the mere pur- 
 pose of computing the interest, or paying it, when in fact he 
 had no such design, but intended to deceive, and did deceive 
 him, and his real intent then formed and existing in his mind, 
 
State v. Fenn. 2S5 
 
 was to get hold of the note and deprive Bartlett or the owner 
 permanently of it, with the intent thereby to secure a pecuniary 
 advantage to himself, then the jury might find him guilty of 
 theft." 
 
 The jury returned a verdict of guilty, and found the value 
 of the stolen note to be twenty -three hundred dollars. 
 
 The defendant moved for a new trial for error in the ruling's 
 and charge of the court, and upon the ground that the verdict 
 was against the evidence in the case. 
 
 Phelps, J. The defendant moves for a new trial from a 
 verdict against evidence, and from the admission by the court 
 of certain testimony offered by the State and objected to by 
 him; and also from sundry alleged errors of the court in its 
 instruction to the jury. 
 
 1. We are satisfied from the testimony recited in the motion 
 that the verdict is not so manifestly against the weight of evi- 
 dence properly admitted in the cause, as to require us, on that 
 ground, to set aside the verdict. 
 
 The State was bound to prove the felonious intent by the 
 defendant at the time of the taking of the property ; that it 
 was of some actual and intrinsic value, and was the property 
 of the person named as owner in the information, and that it 
 was taken by the defendant either secretly and without the 
 knowledge of the owner, or openly by deception, artifice, fraud 
 or force, and with the design then entertained to deprive the 
 owner of it and secure to himself some personal benefit from 
 the wrongful taking. We think the evidence detailed in the 
 record justified the jury in finding all these propositions 
 proved. The direct proof of the value and ownership of. the 
 note was not in itself necessarily conclusive, but we think it 
 was so far corroborated by the circumstances, and esjDecially by 
 the conduct of the defendant that we cannot properly say the 
 verdict with respect to those allegations was unwarranted. 
 
 2. The note was proved, on the trial, to have been payable 
 with semi-annual interest, and all taxes that should be assessed 
 on the amount of money represented by it. The description 
 of it in the information omitted these particulars, and the de- 
 fendant objected to the evidence descriptive of the note, on the 
 ground of a material and fatal variance. 
 
256 Phalen's Ceiminal Cases. 
 
 In a prosecution for theft, the property alleged to have been 
 stolen must be described with substantial accuracy, so that its 
 identity shall be unquestionable and the defendant thereby 
 protected from another prosecution for the same ofPence. We 
 think that it was reasonably done, and that the defendant who 
 wrongfully took the note and destroyed it should not be jjer- 
 mitted to say it was not desci-ibed with the utmost particular- 
 ity. There is nothing in the circumstances which indicates 
 any danger of his being subjected to another prosecution by 
 reason of such incomplete description, and the attorney for the 
 State has carefully inserted in one of the counts in the infor- 
 mation the usual averment in such cases, that a more particular 
 description of the property was to him unknown. 
 
 A similar objection was taken to evidence showing the pre- 
 cise form of the indorsements of the note by the payee and 
 indorsee, on the ground that the information did not state the 
 form of the indorsement by the payee, or that the in- 
 dorsee who was the owner liad indorsed it at all. Sufficient 
 was alleged to show that the title passed by indorsement from 
 the payee to the indorsee, and as the latter was alleged to be 
 the owner, the question whether he had written his name on it 
 by way of a blank indorsement without delivery could not in 
 this case be material. The question was one of title, and his 
 placing his name for the purpose of collection on the back of 
 a note payable to his order would not affect that, and as a mat- 
 ter of mere technical form was unimportant. 
 
 3. A large number of objections are taken to the instruc- 
 tions given by the court to the jury. Those relating to the 
 question of variance between the information and the proof are 
 sufficiently noticed and disposed of in what has been already 
 said with reference to the admissibility of the evidence on 
 those points. The other questions made relate to the value 
 and ownership of the note, the manner it was taken by the de- 
 fendant, and the intent with which it was done. The jury 
 were required to find, under the instructions given them, that 
 the note was of some substantial value ; that W. was the owner of 
 it when it was taken by the defendant; that the taking was 
 either secretly done, or openly, by fraud or force, and in either 
 mode, with the felonious intent to deprive the owner of his- 
 
State v. Dopeke. 257 
 
 property in it, and convert it to tlie private advantage of the 
 defendant. On all these points the law was fully, plainly and 
 correctly stated, and the defendant has no just reason for com- 
 plaint. 
 
 "We advise the Superior court that a new trial be not 
 granted. 
 
 In this opinion Fostee and Pardee, J. J., concurred ; Cae- 
 PENTEB, J., also concurred. Park, C. J., dissented. 
 
 State v. Dopeke. 
 (68 Mo., 208.) 
 
 Larceny. — A coffln, in which a body Is interred, is the property of the 
 person who furnished it for burial. 
 
 The value of an article stolen is to be fixed by its intrinsic value or 
 market price, not by what it is worth to its owner ; the term value is to be 
 taken in its legal sense. 
 
 Case sufficiently stated in the opinion of the court. 
 
 Henet, J. It is conceded by counsel for appellant, and 
 fully established by the authorities, that a coffin in which the 
 remains of a human being were interred was a subject of levy 
 at common law. It is contended, however, that section 11, 12, 
 13 and 14, of our act concerning crime and punishments 
 (Wag. Statutes, page 500, 501), " stand in lieu of the common 
 law as it existed in reference to the question under considera- 
 tion, and that the acts, alleged to have been committed by the 
 defendant in this case, amount to nothing more than a statu- 
 tory misdemeanor." Section eleven provides a punishment 
 for removing the remains of a human being from the grave or 
 17 
 
258 Phalen's Ceiminal Casiss. 
 
 other place of interment. Section twelve makes it a misde- 
 meanor for any one to receive such remains, knowing them to 
 have been disinterred contrary to the provisions of the pre- 
 ceding section. These sections, it might be contended with 
 plausibility, have superseded the common law in regard to the 
 exhumation of the remains, but have no bearing upon the 
 question of stealing a coffin or grave-clothes. 
 
 It was not larceny, at common law, to take a dead body 
 from its place of interment, under any circumstances, but it 
 was a misdemeanor, and as section eleven and twelve expressly 
 provide a punishment for that offense, as also for receiving the 
 dead body, those sections may be taken to stand in lieu of the 
 common law in relation to the removal of the remains of the 
 dead. 
 
 Section thirteen provides that " every person who shall open 
 the grave or other place of interment, or sepulchre, with intent 
 to remove the dead body or remains of any human being, for 
 any of the purposes specified in section eleven of this chapter, 
 or to steal the cofSn, or any vestment or other article, or any 
 part thereof, interred with such body, shall, on conviction," etc. 
 
 This section provides a punishment for an attempt to remove 
 the remains or to steal the coffin or any article interred with 
 the body. There is no enactment in regard to stealing a coffin, 
 and with what propriety can it be said that the legislature, 
 having prescribed a punishment for one offense which was pun- 
 ishable at common law, has thereby repealed the common law 
 in regard to a different and higher grade of offense? By the 
 common law it was larceny to steal a coffin in which the re- 
 mains of a human being were interred. It was at common 
 law, also, a misdemeanor to attempt to .commit the offense, and 
 the argument urged here is, that inasmiich as our legislature 
 has provided a punishment for the misdemeanor, it has thereby 
 entirely superseded and abolished the common law as the 
 felony. We may not appreciate the force of the argument, 
 but it comes far short of securing our assent to the propo- 
 sition. That the stealing of a coffin is still larceny in this 
 State is recognized in section thirteen, wherein it provides a 
 punishment for the attempt to steal a coffin. "We, therefore, 
 conclude that, notwithstanding the enactment of those sections, 
 
State v. Dopeke. 269 
 
 a coflBn ia wMch the remains of a human body are interred is 
 still a subject of larceny in this State. 
 
 It is insisted that the indictment is defective in failing to 
 negative the exceptions contained in section fourteen. This 
 question has been otherwise determined by repeated decisions 
 of this court, and recently in the State v. O'Gorman, ante, 
 p. 179. 
 
 The coffin was alleged, in the indictment, to be the proj)erty 
 of one Makel, a son-in-law of the accused, and it is contended 
 that when he had the body interred he parted with all the prop- 
 erty he had in the coffin, and that, therefore, the conviction of 
 defendant cannot be sustained. Eoscoe, in his work on crim- 
 inal evidence, says : " A shroud stolen from the corpse must 
 be laid to be the property of the executor, or of whoever else 
 buried the deceased:" Page 604 (6th Am. ed.); 1 Chitty Grim. 
 Law (5 Am. ed.), 44; 1 Hawkins P. C, 144, 148; Sharswood 
 Elack., 4th vol., 235. All these authorities, it is true, speak 
 only of shrouds and ornaments buried with the dead, but the 
 principle upon which these may be alleged to be the property 
 of the executor, or of the person who buried the deceased, will 
 certainly sustain an allegation that the coffin is the property of 
 the person who buried the deceased. 
 
 The court, for the State, instructed the jury that if they 
 found that the coffin was of less value than ten dollars, and 
 that the defendant stole it, they shoxild convict him of petit 
 larceny. 
 
 By another instruction they were told that to convict de- 
 fendant of grand larceny, they should Und the coffin to have 
 been of the value of ten dollars or more, and that it was suffi- 
 cient if they found it to be of that value to the owner, and 
 that it was not required that it should be of that value to third 
 persons, or that it would command that price in the open 
 market. This latter instruction was erroneous. The authori- 
 ties, cited to support the doctrine it announced, give it no 
 countenance. In 3 Greenleaf's Evidence, page 140, sec. 153, 
 the author says : " Nor is it necessary to prove the value of the 
 goods stolen, except in prosecuting under statutes which made 
 the value material either in constituting the offense or in award- 
 ing the punishment. But the goods must be shown to be of some 
 
260 Phaien's Criminal Cases. 
 
 value, at least, to the owner, such, as reissuable bankers' notes, 
 or other notes completely executed, but not delivered or put 
 into circulation, though to third persons they might be worth- 
 less." It is clear that in the latter clause he was speaking of 
 other prosecutions than those under statutes which make the 
 value material either in constituting the offense or awarding 
 the punishment. 
 
 " By the English law, as it stood when this country was 
 settled, larceny was divided into grand and petit; the former 
 being committed where the goods stolen were over twelve 
 pence in value, the latter where they were of the value of 
 twelve pence or under." Bishop's Crim. Law, vol. 1, sec. 679. 
 
 " In these valuations, says East, the valuation ought to be 
 reasonable; for when the statute of "West, 1, o. 15, was made, 
 silver was but 20d. an ounce, and at the time Lord Coke wrote, 
 it was worth 5s., and is now higher." 2d East's P. C, 736. 
 So Lord Coke, 2 Inst., 189, says: " The things stolen are to 
 be reasonably valued, for the ounce of silver at the making of 
 this act was at the value of 20d., and now it is at the value of 
 5s., and above." 
 
 See also Black. Com., vol. i, 237. The statute of Westminster 
 
 1, chapter 16, referred to by the authors, was that by which the 
 distinction betwixt grand and petit larceny was made. 
 
 By statutes seven and eight, George IV., chapter 29, section 
 
 2, that distinction was abolished and every larceny, without 
 regard to the value of the goods, was made grand larceny : 
 Sharswood's Blackstone, vol. 4, 230. When it is said by 
 elementary writers, and in adjudged cases, that in order to 
 constitute the ofEense of larceny it is sufficient if the thing 
 stolen be of some value to the owner, however small, although 
 to third persons worthless, the observations relate to the offense 
 of petit larceny, or to simple larceny, under the statute seven 
 and eight George IV., and similar statutes, and are wholly 
 inapplicable to grand larceny. 
 
 Where a distinction is made by statute between that and petit 
 larceny, based upon the value of the goods stolen, the remarks 
 of East and Lord Coke, above quoted, show conclusively that 
 the value of the goods was to be measured by the current coin 
 
Statk v. Dopekk. 261 
 
 of the realm, and that the cash value was that to be ascertained 
 in determining wh3ther the theft was grand or petit larceny. 
 
 If the criterion of the valu^, given bj the court in the record 
 of the above instructions be correct, one might be convicted of 
 grand larceny for stealing a finger ring of the intrinsic or 
 market value of five dollars, only, because forsooth, being a 
 gift to the owner, by a departed friend, or wife, or other loved 
 one, he placed an estimate upon it far beyond its value, although 
 of no greater value to third persons than any other ring of the 
 same kind which CDuld bs purchased wherever kept for sale for 
 five dollars. 
 
 The criterion of value by which the jury were told in that 
 instruction, that they might be governed, does no apply, as a 
 general rale, in civil proceedings, and when the statutes re- 
 quires that property stolen shall be of the value of ten dollars, 
 in order to constitute the theft thereof grand larceny, the term 
 " value " is to be taken in its leo^al sense, which does not differ 
 from its common acceptation, and there is no warrant for al- 
 lowing any other mjde of ascertaining the value of stolen 
 property in a criminal prosecution than that which prevails 
 generally in civil proceedings. 
 
 If one sue another for the conversion of personal property, 
 he recovers, not what the property was worth to him, but its 
 value in the market; and it would be strange enough if, where 
 the statutes declares that no one shall be adjudged guilty of 
 grand larceny unless the goods were of the value of ten dollars, 
 a criterion of value should be adopted which would authorize 
 a conviction for that offence. When the goods stolen are worth- 
 less to third persons, and of no market value, but possess a 
 value which can only be measured by ta.ncj or sentiment — a 
 measure of value as uncertain and variable as the whims and 
 caprices of the owner of the goods, or the witnesses he may in- 
 troduce to prove their value. 
 
 We cannot substitute this for the stable and certain measure 
 furnished by the price which such goods command in the 
 market. 
 
 In some civil cases, we are aware, the jury are allowed to 
 consider pretium affeotionis in estimating the value of prop- 
 erty; but the reason for the departure from the general rule in 
 
262 Phalen's Criminal Cases. 
 
 those cases does not apply in a prosecution for stealing such 
 property. 
 
 The purpose of the prosecution is to punish the theft, not to 
 compensate the owner of the property for his loss. 
 
 The judgment of the Court of Appeals is reversed, and the 
 cause remanded. All concur. 
 
 Reversed. 
 
 Ware v. State. 
 
 (2 Texas Ct. App., 547.) 
 
 Labcbny. — Where several stolen articles are alleged to be of an aggre- 
 gate value, it Is necessary to show the theft of all the articles alleged to 
 have been stolen, in order to convict. 
 
 EcTOE, P. J. The defendant was indicted, tried, and con- 
 victed, in the district court of Marion county, for theft, and his 
 punishment assessed at seven years in the penitentiary. He 
 filed motions for a new trial and in arrest of judgment, which 
 were overruled, and he has taken an appeal to this court. 
 
 The defendant assigns the overruling of his motion in arrest 
 of judgment by the lower court. The following is a copy of 
 defendant's motion in arrest of judgment, viz. : 
 
 " Now comes the defendant and moves the court to arrest 
 the judgment against him in the case, because the bill of in- 
 dictment against him in this case is fatally defective, because 
 the property alleged to have been stolen is not sufficiently des- 
 cribed to enable the defendant to plead the judgment against 
 him in this case in bar of another prosecution for the same of- 
 fence, and for defects apparent on the face of the indictment." 
 
 "We will give below the charging part of the indictment, 
 which is as follows: 
 
 " That on the twenty-third day of January, in the year of 
 our Lord one thousand eight hundred and seventy-seven, in 
 
Waee v. State. 263 
 
 the county of Marion, and State aforesaid, one Charles Ware, 
 late of said county, did unlawfully, feloniously and fraudulently, 
 and without the consent of the owner thereof, take, steal, and 
 carry away from and oiit of the possession of one Adeline Wil- 
 liams, three dresses, a more specified description whereof is to 
 the grand jurors unknown, three underskirts, three quilts, two 
 matrasses, one blanket, two pillows, two pillow-slips, two pairs 
 of drawers, one pair slippers, six dresses, six underskirts, six 
 drawers, children's clothing, six books, six plates, one coffee- 
 pot, and one accordian, a more specific description of said arti- 
 cles being to the grand jurors unknown, and said articles being 
 then and there of the aggregate value of thirty -j&ve dollars, the 
 corporal personal property of Adeline Williams, with the un- 
 lawful and fraudulent intent of him the said Charles Ware, to 
 deprive the owner of the value of the same, and to appropriate 
 it to the use and benefit of him, the said person taking the 
 same," etc. 
 
 We believe that the property alleged to be stolen is sufficient- 
 ly described in the indictment. " The certainty required in the 
 indictment is such as will enable the accused to plead the judg- 
 ment that may be given upon it in bar of any prosecution 
 for the same offence." Pasc. Dig., Art. 2865. 
 
 The indictment in this case is for the theft of several articles 
 of the aggregate value of $35. 
 
 It is sufficient to allege such aggregate value ; it is not abso- 
 lutely necessary that the separate value of each article be set 
 out ; but, to convict upon such indictment, it has been decided 
 by our supreme court that the testimony must show the theft 
 of all the articles alleged to have been stolen. Thompson v. 
 The State, 43 Texas, 268. 
 
 The . evidence in this case clearly shows that all the articles 
 mentioned in the indictment were stolen, and that they are of 
 the aggregate value of $35. The property in the indictment, 
 charged to have been stolen by defendant, is described as the 
 property of Adeline Williams. The evidence is that she is a 
 married woman ; that she had been abandoned by her husband 
 for two or three years ; that she did not know where her hus- 
 band was ; and that since her separation he had not contributed 
 
264 Phalen's Oeiminal Cases. 
 
 to her support; and she testified that the stolen property was 
 her property. 
 
 The ownership of the property was sufficiently alleged. 
 Even if it had been community property between her and her 
 husband (which was not the case), the ownership, under the 
 circumstances, might properly have been alleged to be in the 
 wife. Our supreme court has said, in the case of Ann Barta 
 Lodge V. Liverton, 42 Texas, 18, it is not an open question in 
 this court that the wife, when forced by the action of the hus- 
 band to assume and fulfil the duties of a femme sole, or the 
 head of the family, may exercise the rights and privileges of 
 such position." See, also, the case of FuUerton v. Doyle, 18 
 Texas. "We find no error committed in the lower court on the 
 trial of the cause. The evidence abundantly supports the 
 verdict and judgment. 
 
 The judgment is affirmed. 
 
 E. V. Cheeky. 
 
 Oxford Lent Ass. 1781, and East, term 1781. 
 
 (2 East P. C, 556 ) 
 
 Lakcent. — Iq order to constitute larceny, the felon must for the instant, 
 at least, have the entire possession of the thing alleged to liave been taken. 
 
 William Cherry was indicted for stealing a wrapper and 
 some pieces of linen cloth ; and it appeared that the linen was 
 packed up in the wrapper in the common form of a long 
 square, which was laid length-way in a wagon. That the pris- 
 oner set up the wrapper on one end in the wagon for the 
 greater convenience of taking the linen out, and cut the 
 wrapper all the way down for that purpose; but. was appre- 
 
K. V. Thompson. 265 
 
 hended before he had taken anything. All the "judges agreed 
 that this was no larceny; although his intention to steal was 
 naanifest. For a carrying away, in order to constitute felony, 
 must be a removal of the goods from the place where they 
 were, and the felon must, for the instant at least, haye the entire 
 and absolute possession of them. 
 
 Note. — la the conference upon Cherry's case above reported, Eyre B. 
 mentioned a case before him, where goods in a shop were tied to a string, 
 which was fastened by one end to the bottom of the counter. A thief took 
 up the goods and carried tliem towards the door as far as the string would 
 permit, and was (hen stopped : this he held not to be a severance, and con- 
 sequently no felony. 2 East P. C, 056. 
 
 In Wilkinson's case, 1 Hale, 508 ; 3 East P. C, 556. One had his keys 
 tied to the strings of his purse in his pocket, which Elizabeth Wilkinson 
 attempted to take from him, and was detected with the purse in her hand ; 
 but the strings of the purse still hung to the owner's pocket by means of 
 the keys. This was ruled to be no asportation ; the purse could not be 
 said to be carried away, for it still remained fastened to the place where it 
 was before. 
 
 K. V. Thompson. 
 
 lieserved for the Opinion of the Judges at Easter Term, 1788. 
 
 (3 East P. C, 505.) 
 
 Larceny prom the Person. — A. master of a vessel asleep in his cabin 
 is within the protection of the act. 
 
 John Thompson was indicted for privately stealing from the 
 person of Jonathan Simpson, without his knowledge, a silver 
 watch. The. property was proved to have been taken by the 
 
266 Phalen's Ceiminal Casses. 
 
 prisoner from tlie person of the prosecutor, a master of a ship 
 then lying in the river Tyne, whilst he was asleep in his cabin,, 
 privately and without his knowledge. He was convicted, and 
 Heath, J., passed sentence of death upon him. But the 
 counsel for the prosecution very candidly producing a case 
 decided at Durham some years before, wherein it was ruled 
 that the statute did not extend to persons asleep, the case was 
 reserved for the opinion of the judges. Upon the consultation 
 at this time the cases which I have before mentioned were 
 quoted and considered ; but five judges held the conviction to 
 be proper against the other four; the case was adjourned to 
 Hil. T. 1787, and again to Easter term succeeding, when all 
 the judges agreed that the conviction was proper. 
 
 Commonwealth v. Louisa Luckis. 
 
 (99 Mass., 431.) 
 
 Lakcbny FROM THE Person. — The indictment charged an attempt to 
 steal a pocket-book from tlic person, the evidence showed that a police offi- 
 cer, seeing the defendant put her hand into the pocket of another woman, 
 grasped the wrist of the hand; and that the defendant then raised her 
 hand in theair with the pocket, and let it fall again suddenly, tearing the 
 pocket, when the pocket-book fell to the ground. Held, a conviction 
 was right. 
 
 Indictment for an attempt to commit larceny of a pocket- 
 book from the person of a woman unknown. Trial in the 
 superior court, before Yose, J., who allowed a bill of excep- 
 tions, in substance as follows : The only witness for the Com- 
 monwealth was a police officer, the material part of whose tes- 
 timony was this: " I saw the defendant put her left hand into 
 the pocket of an old lady. I stepped forward and caught her 
 
Commonwealth v. Louisa Luckis. 267 
 
 by the left wrist while her hand was in the pocket. She im- 
 mediately raised her hand in the air with the dress, her hand 
 being still in the pocket, and my hand still upon the defendant's 
 hand ; and bringing her hand down again suddenly, tore the 
 dress and pocket to the ground. The pocket-book dropped to 
 the ground. She said, ' Let go my hand. Who are you? Are 
 you an officer?' I told her I was, and that she must go with 
 me. The pocket-book dropped after the dress and pocket had 
 been torn." There was no evidence that the defendant placed 
 her hand upon the pocket-book. The witnesses also testified 
 to other facts tending to show the guilt of the defendant. 
 
 The defendant offered no evidence, but asked the judge to 
 instruct the jury " that, on the evidence as given on the part 
 of the Commonwealth, there was a sufficient caption and aspor- 
 tation to constitute larceny, and so the indictment was not 
 supported; that any movement made by the defendant to alter 
 the position of the pocket-book of the party named in the 
 indictment, with a view to take it away, was a sufficient aspor- 
 tation, and that no manual taking was necessary." The judge 
 declined so to rule, and instructed the jury, " that if they were 
 satisfied, beyond a reasonable doubt, that the hand of the de- 
 fendant had been thrust into the woman's pocket with a felo- 
 nious intent, and was arrested in the pocket while attempting 
 to execute that intent, and before her hand had reached or dis- 
 turbed the woman's pocket-book, they might find her guilty of 
 the offence charged in the indictment; that any alteration in 
 the position of the pocket-book in the woman's pocket, caused 
 by the struggle between the defendant and the officer, the 
 pocket-book not having been nor being in the defendant's 
 hand, or in contact with it, would not be such a caption or 
 asportation as to constitute the offence of larceny instead of 
 the offence charged; but that if the ^defendant's hand had 
 reached or seized the pocket-book, before it was arrested by 
 the officer, or during the struggle, and she altered the position 
 of the pocket-book in the attempt to secure or retain it, this 
 would be such a caption or asportation as would make it their 
 duty to acquit the defendant." 
 
 The jury returned a verdiet of guilty; and the defendant 
 alleged exceptions. 
 
268 Phalen's Ckiminal Cases. 
 
 F. F. Heard, for the defeadant, cited Rex v. Thompson, 1 
 Grov., 78; Eegina v. Simpson, Dearsly, 421; 2 Russell on 
 Crime (4th Eng. ed.), 369. 
 
 C. Allen, Attorney General, for the Commonwealth. 
 
 Colt, J. The defendant, waving all objections to the form 
 of the indictment, relies now only upon alleged errors in the 
 rulings aad instructions of the court ujjon the evidence. 
 
 The case shows an attempt manifested by an act, which was 
 the beginning of a larceny, the completion of which was inter- 
 rupted by an intervening circumstance not within the control 
 of the prisoner. To justify a conviction, it was necessary to 
 show that she failed in the perpetration, or was prevented in 
 the execution of the offence of stealing from the person, — an 
 offence which could only be complete when the property sought 
 to be taken was in the full custody and control of the defend- 
 ant. It is not indeed necessary that the pocket-book of the 
 prosecutor should have been removed from the pocket, if once 
 within the grasp of the thief, to constitute larceny. Rex v. 
 Thompson, 1 Mood., 78. But the prisoner must for an instant 
 at least have had perfect control of the property. There was 
 nothing in the evidence reported which would justify the court 
 in instructing the jury that there was such instantaneous cap- 
 tion and asportation in this case. N"or is there any evidence 
 to which the last part of the instructions asked could be ap- 
 plied. It was not until after the hand was seized by the offi- 
 cer, and after all intention to commit any larceny must have 
 been abandoned, that the pocket-book fell from the pocket 
 in the struggle which ensued. 
 
 There was no error in the instructions given, or in refusing 
 those asked. 
 
 Exceptions overruled^ 
 
King v. State. 269' 
 
 King v. State. 
 
 (54 Ga., 184.) 
 
 Lakcbnt prom the Pbkson. — Simple larceny and larceny from the- 
 person are two distinct oftenses; and evidence which establishes a larceny 
 from the person will not sustain a conviction of simple larceny. 
 
 The case is sufficiently stated in the opinion. 
 
 "Waenee, 0. J. The defendant was indicted for the offence 
 of " simple larceny," under the 4406th section of the code, and 
 charged with having wrongfully, fraudulently and privately- 
 taken and carried away, with intent to steal the same, certain 
 described United States national currency notes, of the value 
 of twelve dollars. The evidence tipon the trial proved a tech- 
 nical " larceny from the person." The jury, under the charge 
 of the court, found the defendant guilty. 
 
 A motion was made for a new trial, on the ground that the 
 court erred in charging the jury that they could find the de- 
 fendant guilty of simple larceny, as defined by the 4406th 
 section of the code, notwithstanding the evidence showed that 
 ^t was a technical larceny from the person. The court over- 
 ruled the motion, and the defendant excepted. 
 
 By the 4406th section of the code, it is declared that if any 
 person shall take and carry away any bond, note, bank bill or 
 due bill, or paper or papers, securing the payment of money^ 
 etc., with intent to steal the same, such person shall be guilty 
 of simple larceny. By the 4410th section, theft or larceny 
 from the person is defined to be the wrongful and fraudulent 
 
270 Phalen's Ceiminal Cases. 
 
 taking of money, goods, chattels or effects, or any article of 
 value from the person of another privately, without his know- 
 ledge, in any place whatever, with intent to steal the same. 
 
 " Simple larceny " and " larceny from the person " are two 
 distinct offences under the code. It is true that if any person 
 shall take and carry away any bond, note, bank bill, etc., with 
 intent to steal the same, such person is guilty of simple lar- 
 ceny, and it is also true that if any person shall wrongfully 
 and fraudulently take and carry away the personal goods of 
 another, other than bonds, notes, bank bills, etc., with intent 
 to steal the same, he would be guilty of simple larceny, but it 
 does not follow that if bonds, notes, bank bills, etc., are taken 
 from th& person of another privately and without his know- 
 ledge, that the party defendant so taking the same may be 
 indicted and punished for the offense of simple larceny. If 
 one should take and carry away a box of jewelry, with intent 
 to steal the same, he would be guilty of simple larceny; but if 
 one should take a box of jewelry from, the person of another 
 privately, without his knowledge, with intent to steal the same, 
 he would be guilty of larceny from the person. So in this 
 case, if the defendant had not taken the currency bills from 
 the person of another privately, and without his knowledge, 
 he might have been indicted and punished for the offense of 
 simple larceny; but as the evidence shows that he was guilty 
 of larceny from the person, he should have been indicted and 
 punished for that offense. 
 
 Simple larceny and larceny from the person, as before re- 
 marked, are two distinct offenses, and the punishment is differ- 
 ent. Simple larceny of currency notes, under the MOOth sec- 
 tion of the code, is punished as felony by imprisonment in the 
 penitentiary for not less than one year nor longer than four 
 years, whereas, strange as it may appear, larceny from the per- 
 son of currency notes is only punishable as a misdemeanor 
 under the provisions of the act of 1866, reducing certain crime 
 below felonies. The result, therefore, is iii relation to the case 
 now before us, that the defendant has been indicted and found 
 guilty of a felony, for which he may be punished by impris- 
 onment in the penitentiary for not less than one year nor 
 longer than four years, when if he had been indicted for lar- 
 
King v. State. 271 
 
 ceiiy from the person, the offense of which it is admitted the 
 evidence proved him to have been guilty, he could only have 
 been punished, as the law now stands, as for a misdemeanor. 
 It might be a convenient way to indict the defendant for 
 simple larceny and punish him as for a felony under the 
 4406th section of the code, when the evidence proved he was 
 guilty of larceny from the person, and could only be punished 
 therefor as for a misdemeanor. The simple objection to this 
 course of proceeding is, that the penal laws of the state do not 
 authorize it. There are four distinct classes of larceny recog- 
 nized by the penal code of this state : 1st, simjDle larceny ; 2d, 
 larceny from the person ; 3d, larceny from the house ; 4th, lar- 
 ceny after a trust or confidence has been delegated or rejposed. 
 Code, § 392. 
 
 If any person shall steal currency notes, or other ohoses in 
 action, or any article of value from the person of another, 
 privately, without his knowledge, in any place whatever, such 
 person is guilty of the offence of larceny from the person, and 
 should be indicted therefor and punished as prescribed by law 
 for that offence. If any person shall steal and carry away cur- 
 rency notes, or other valuable things as described in section 
 4406, otherwise than from the person of another, such person 
 is guilty of simple larceny, and should be indicted therefor, 
 and punished as prescribed by law for the offence. Penal laws 
 are to be construed strictly, therefore the defendant in this 
 case could not legally have been convicted and punished for the 
 offense of simple larceny, under the 4406th section of the code, 
 which is a felony, when the evidence clearly proved that he 
 was only giiilty of the offense of larceny from the person, which 
 is not a felony, but a misdemeanor. The offense of a misde- 
 meanor under the law cannot be converted into a felony and 
 punished as such, in that way, without a violation of the fun- 
 damental principles of the penal laws of the state. In our 
 judgment the court erred in overruling the defendant's motion 
 for a new trial. 
 
 Let the judgment of the court below be reversed. 
 
272 Phalen's Ceiminal Cases. 
 
 Flynn v. State. 
 
 (42 Texas, 301.) 
 
 Larceny prom the Person. — The offense is complete when the prop, 
 erty is taken into possession ; it is not necessary to show a removal of the 
 property. 
 
 The case is sufficiently stated in the opinion. 
 
 Devins, J. The appellant, with James Anderson and George 
 Wheeler, was jointly indicted for theft from the person of Nich- 
 olas Walsh. , The charge was dismissed as to Anderson, the de- 
 fendant Flynn alone being tried. The jury found him guilty,, 
 and assessed his punishment at five years in the penitentiary. 
 
 The errors assigned are, that the charge of the court was 
 contrary to law, and that it misled the jury ; that the court 
 erred in refusing the charge asked by defendant ; that the ver- 
 dict of the jury was not warranted by the evidence, and that 
 the court erred in overruling the motio& for a new trial. 
 
 The charge of the court was clear, concise, and embraced 
 the law applicable to the case; it directed the mind of the jury 
 to the law, which had reference only to the facts in evidence; 
 it was quite as favorable to the accused as the evidence de- 
 manded, or the law permitted. We find no error in the charge. 
 The refusal of the court to give the instructions asked for 
 defendant was, under the facts of the case and the law, a 
 proper exercise of discretion. The evidence, uncontradicted, 
 shows that while appellant's co-defendant and associate 
 
Flynn v. State. 273 
 
 ("Wheeler) was " jostling against him (Walsh), and impeding his 
 exit from the crowd at the theater, appellant forced his hand 
 into "Walsh's pocket, took the pocket-book into his hand, and 
 drew it half way out of the pocket, when the owner, feeling 
 the movement, turned suddenly around, and, with an angry 
 exclamation, disconcerted the accused, who then made his 
 escape; the witness stating further that he resisted defendant's 
 going away with the book, as well as he could, on finding 
 him withdraw it. The accused was indicted under article 762 
 of the Criminal Code. Article 763 defines the necessary requi- 
 sites to constitute the offence. 
 
 1st. A theft from the person. 
 
 2d. The commission of the theft without the knowledge of 
 the person from whom the property is taken, or so suddenly as 
 not to allow time to make resistance before the property is car- 
 ried away; and 
 
 3d. " It is only necessary that the property stolen should 
 have gone into the possession of the thief; it need not be car- 
 ried away in order to complete the offence." In the present 
 case it was taken from the person, from the place where the 
 owner had deposited it. 
 
 4th. "While "Walsh was annoyed and his attention attracted 
 by "Wheeler, the defendant (in the language of the code) 
 privately took into his possession the pocket-book, and with- 
 out the knowledge of the owner. 
 
 5th. The evidence shows he had, or held it in his hand, had 
 removed it half out of the pocket — a sufficient possession, 
 within the letter and spirit of the code, of property so small 
 and portable as the article taken. The provision in article 
 763, which dispenses with the necessity of proving the car- 
 rying away of property stolen from the person, and which 
 makes the mere going into the possession of the thief, of such 
 property, sufficient proof, justified the court in refusing the 
 instruction asked. 
 
 The object of the framers of the code, in prescribing the 
 same punishment for theft from the person and theft from a 
 house, was evidently to give to the property of the person the 
 same degree of protection as is given to property in a house; 
 in the last case it is not necessary to show a removal of the 
 18 
 
274: Phalen's Criminal Cases. 
 
 property charged to have been taken from the house ; the rea- 
 son of the rule is quite as strong when applied to property on 
 the person, and the code has removed doubt on this subject by 
 declaring the offense complete when the property charged to 
 have been stolen is taken into the possession of the person 
 charged with the theft. That the offense is complete when the 
 property is taken into possession, was so held in a case decided 
 during the late session at Tyler, where a party attempted to 
 steal money during the night from clothing of a companion 
 with whom he was traveling. 
 
 The evidence sustains the verdict, and there was no error in 
 overruling the motion for a new trial. 
 
 Affirmed. 
 
 Watkins v. State. 
 
 (3 Texas, Ct. App. 73.) 
 
 ' Lakceny.— Recent possession of stolen property is not of itself suffi- 
 cient to justify a conviction ; it is merely a fact to be considered by the 
 jury. 
 
 The case is sufficiently stated in the opinion. 
 
 WiNKLEE, J. The judgment rendered in this case at the 
 last term of this court at this place was, on motion of the 
 attorney general, set aside, a rehearing granted, and the cause 
 continued. The judgment of conviction had, must now be 
 reversed and the cause remanded, because of a material error 
 in the charge of the court, when taken in connection with all 
 the evidence. This error is found in the third paragraph of 
 of the charge, and is as follows : 
 
Watkins v. State. 2T5 
 
 " 3d. When a pei-son is found in possession of property 
 recently stolen, such person is held accountable for thetheft^ 
 unless he can explain how he came to have the stolen property 
 in his possession. In other words, it is made obligatory upon 
 the person having the stolen property in possession to rebut 
 the presumption of guilt thus ensuing by proof." 
 
 The true rule is correctly quoted in the opinion of the 
 supreme court of Texas, delivered by Mr. Justice Gould, in 
 McCoy V. The State, M Texas, at page 618, as follows: 
 
 " The possession of property recently stolen is merely a fact 
 or circumstance to be considered by the jury, in connection 
 with all the other evidence submitted to them, in determining 
 the guilt or innocence of the possessor;" citing Perry v. The 
 State, 41 Texas, 484, and authorities there cited; Calvin 
 Thompson v. The State, 43 Texas, 268; Yates v. The State, 37 
 Texas, 202; 2 Bishop's Cr. Proc. 
 
 This rule has been followed by this court in the following 
 cases: Hannah v. The State, 1 Texas, Ct. of App. 578; and 
 Massey v. State, 1 Texas, Ct. of App. 563. 
 
 In this case this charge must necessarily have influenced the 
 jury to the prejudice of the accused ; and, on this account, the 
 judgment is reversed and the cause remanded. 
 
 Keversed and remanded. 
 
 NoTB. — In Truax v. State, 12 Texas, Ct. of App. 330, it was held that 
 possession of property recently stolen was not of itself sufficient to justify 
 a conviction for the theft thereof. 
 
276 Phalen's Criminal Cases. 
 
 People v. !Noregea. 
 
 (48 Cal., 123.) 
 
 Labcbnt. — Recent possession of stolen property is not of itself sufficient 
 to justify a conviction. 
 
 The case is siifBciently stated in the opinion. 
 
 Khodes, J. The defendant was convicted of grand larceny 
 for the stealing of a horse. The only evidence of defendant's 
 guilt was, that the stolen horse was found in his possession a 
 few hours after it was taken. People v. Chambers, 18 Cal., 
 382, and People v. Ah Ki, 20 id., 178, hold that the possession 
 of stolen property is a circumstance to be considered by the 
 jury, but it is not of itself sufficient to warrant a conviction. 
 It is said by Greeenleaf, 3 Greenl. Ev., sec. 31: "It will be 
 necessary for the prosecutor to add the proof of other circum- 
 stances indicative of guilt, in order to render the naked pos- 
 session of a thing available towards a conviction." 
 
 The evidence disclosed no circumstances of that character. 
 The riding of the horse several miles beyond the point where 
 he was first seen in possession of it, is only his continued pos- 
 session of it, and is not a further circumstance indicative of 
 guilt. The leaving of the saddle with the innkeeper does not 
 tend to prove a larceny of the horse. 
 
 There may be an abundance of authority to sustain the point 
 of the attorney general, that the court erred in excluding evi- 
 dence as to the defendant's confession, after the preliminary 
 evidence as to its having been voluntary; but the point does 
 not arise in the defendant's appeal. 
 
 Judgment reversed, and cause remanded for a new trial. 
 
 Remittitur forthwith. 
 
Smith v. State. 277 
 
 Smith v. State. 
 
 (58 Ind., 340.) 
 
 Larceny. —The presumption arising from the possession of stolen prop- 
 erty is an inference of fact merely, and not a rule of law. 
 
 The case is sufficiently stated in the opinion of the court. 
 
 NiBLACK. J. The appellant, Edward Smith, was jointly in- 
 dicted in the court below with one John W. Sterne. 
 
 The indictment was in two counts: the first for burglary, 
 and the second for grand larceny. 
 
 The first count charged that the defendants, Smith and 
 Sterne, on the eighth day of April, 1877, in the night time, 
 feloniously and burglariously entered the store-house of one 
 Theophilus Wright, with intent to steal, take and carry away 
 the goods and chattels of him, the said "Wright. 
 
 The second count charged the stealing, at the same time and 
 place, of certain articles of the j)ersonal property of the said 
 Wright, of the aggregate value of near twenty dollars, amongst 
 which were two pocket-knives, of the value of one dollar each. 
 
 Smith, on a separate trial, was found guilty of burglary, as 
 charged in the first count, and, over a motion for a new trial, 
 was sentenced to imprisonment in the state prison for three 
 years. 
 
 On the trial Sterne testified as a witness for the state, and, 
 amongst other things, stated that he and Smith, with two other 
 persons assisting them, entered the store-house of the said 
 Wright, on the night charged in the indictment, being a Sun- 
 
278 Phalen's Criminal Cases. 
 
 day nigM, and carried away tlie personal property enumerated 
 in the second count of the indictment ; that he took one of the 
 pocket-knives, and that Smith took the other, which was a 
 white-handled knife. 
 
 Wright testified that on Tuesday afternoon, after he lost the 
 goods, Smith took him to one side and intimated that he. 
 Smith, knew where the goods were secreted, speaking, at the 
 same time, of Sterne as the person who had the custody of 
 them. 
 
 W. H. Evans testified that five or six days after the burglary 
 Smith exhibited to him a white-handled pocket-knife, which 
 he. Smith, said had come from Wright's store, and which he 
 claimed to have obtained from one of the parties implicated in 
 the burglary ; that Smith claimed that he exhibited this knife 
 to show that he had found out and knew all about the burglary, 
 because of a previous promise to Evans to try and find out 
 about it. 
 
 Thomas J. Statt, who was present when the knife was exhib- 
 ited, substantially corroborated Evans. 
 
 There was also evidence tending to show that, in the mean 
 time, Smith claimed to other persons to be in communication 
 with, or to ha^ e some knowledge of, the persons who com- 
 mitted the burglary, and that he was seen, the Sunday follow- 
 ing the burglary, with Sterne, at the barn where a portion of 
 the goods were concealed. 
 
 Two witnesses testified to having played cards all night with 
 Smith, at some distance away from the scene of the burglary, 
 and to other circumstances tending to establish an alibi on the 
 part of Smith. Another witness testified to some admissions 
 of Sterne while in jail, conflicting with his statements while on 
 the witness stand, implicating Smith with the burglary. Four 
 or five witnesses also testified to the bad character of Sterne 
 for truth. 
 
 At the projjer time the court gave to the jury several instruc- 
 tions in writing. In instruction, known as number four, the 
 court, in substance, said that it is charged that the defendant 
 broke and entered the store-house, with the felonious intent 
 to steal, take and carry away the goods and chattels of The- 
 ophilus Wright. 
 
Smith v. State. 279 
 
 " If you find that the defendant broke and entered the store- 
 house, and are satisfied from the evidence, beyond a reasonable 
 doubt, that the defendant did feloniously steal, take and carry 
 away the personal goods of said "Wright from said store-house, 
 at the time the same was broken and entered, then the jury would 
 have the right to presume that it was his intention to steal 
 such goods when he broke and entered the store-house." 
 
 By instruction, known as number seven, the court further 
 said to the jury : " If you should believe it to be true that the 
 goods mentioned, or some portion of them, were stolen from 
 Theophilus "Wright, about the time charged in the indictment, 
 and that shortly after that time they, or some portion of them, 
 were found in the exclusive possession of the defendant, such 
 possession imposes upon the defendant the duty and burden of 
 explaining his possession; and if he has failed to satisfactorily 
 account as to how he came by the stolen property, or has given 
 a false account of how he came into possession of such stolen 
 property, the law presumes that the defendant stole such prop- 
 erty, and the presumption may be strong enough to justify you 
 in finding the defendant guilty of larceny." 
 
 Although the appellant was convicted of the burglary, and 
 not of the larceny charged in the indictment, yet the course of 
 the trial, including the instructions given by the court, made 
 the question as to whether the defendant had been guilty of 
 larceny in connection with the burglary, a material one. 
 
 The appellant has devoted the greater portion of his brief to 
 an argument to show that the court erred in giving instruction 
 number seven, as above quoted. While the doctrine of this 
 instruction may seem to be in substantial accord with some of 
 the authorities which have fallen under our observation, we are 
 of the opinion that it laid down a harsher rule than can be 
 supjDorted by the weight of modern authority. 
 
 In 3 Greenleaf's Evidence, sec. 31, it is said: '-"We have 
 heretofore adverted to the possession of the instruments or of 
 the fruits of a crime as affording ground to presume the guilt 
 of a possessor; but, on this subject, no certain rule can be laid 
 down of universal application, the presumption being not con- 
 clusive, but disputable, and, therefore, to be dealt with by the 
 jury alone as a mere inference of fact. Its force and value 
 
280 Phalen's Criminal Cases. 
 
 "will depend on several considerations. In the first place, if the 
 fact of possession stands alone, wholly unconnected with any 
 other circumstances, its value or persuasive power is very 
 slight, for the real criminal may have artfully placed the article 
 in the possession or upon the premises of an innocent person, 
 the better to conceal his own guilt. * * * It will be neces- 
 sary, therefore, for the prosecutor to add the proof of other 
 circumstances indicative of guilt in order to render the naked 
 possession of the thing available towards a conviction:" 2 Russ. 
 Crimes, p. 337; Curtis v. The State, 6 Cold., 9; The State v. 
 Erady, 27 Iowa 126; The State v. Creson, 38 Mo., 872; The 
 State V. Merrick, 19 Maine, 398 ; The State v. Floyd, 15 Mo., 
 349; Smaltery v. The State, 46 Ind., 447; Turbeville v. The 
 State, 42 Ind., 490. In a prosecution for larceny, the fact that 
 the stolen property is found upon the person of the defendant 
 can always be given in evidence against him, but the strength 
 •of the presumption which it raises against the accused depends 
 upon all the circumstances surrounding the case: Engleman 
 V. The State, 2 Ind., 91. In the case of The State v. Hodge, 
 50 N. II.,610, a leading and well considered case, the supreme 
 court of New Hampshire decided that the presumption thus 
 raised was one of fact and not of law; that there is no legal 
 rule on the subject; that much depends on the nature of the 
 property stolen, and the circumstances of each particular case ; 
 that " it is a presumption established by no legal rule, ascertained 
 by no legal test, defined by no legal terms, measured by no 
 legal standard, bounded by no legal limits. It has none of the 
 characteristics of law. Wbether it be found by the judge or 
 the jury, the judge and the jury must be equally unconscious 
 of finding in it any semblance of a legal principle, however 
 much good sense may appear in the result arrived at. Being 
 a presumption of fact, it should, according to our practice, be 
 drawn by the jury and not by the court." 
 
 We regard this ease as well sup]_>orted by authority, and we 
 ■feel it our duty to apply the doctrines enunciated by it to the 
 case at bar. 
 
 We think the court erred in saying to the jury, as it did in 
 substance, in the absence of a satisfactory explanation of the 
 possession of the stolen property, the law j^resumes that the 
 
State v. Walker. 281 
 
 •defendant had stolen it — such presumption being in reference 
 of fact merely, and not amounting to a rule of law. 
 
 Evidence in explanation of such possession may fall short of 
 a satisfactory explanation, and yet be sufficient to acquit. If 
 it creates a reasonable doubt, it practically rebuts the presump- 
 tion of guilt: Clakner v. The State, 33 Ind., 412; Wag. v. The 
 State, 35 Ind., 409. 
 
 The judgment is reversed, and the cause remanded for a new 
 trial. The clerk will give the proper notice for the return of 
 the prisoner. 
 
 State v. Walker. 
 (41 Iowa, 217.) 
 
 Larceny. — Receat possession of stolen property, unaccounted for, is a 
 strong presumption, or primi facia evidence, of guilt. 
 
 The question of receat possession is one of fact, for the jury, unless the 
 ■court decides, as a matter of law, that the possession is not recent. 
 
 MiLLEE, 0. J. The court, among other instructions to the 
 jury, charged as follows: 
 
 If you find that the store of the witnesses, S. E. & John 
 Johnson, was burglariously entered, about the night of the 3d 
 ■of February, 1873, and a large quantity and variety of goods 
 stolen therefrom, and that the following June different portions 
 and varieties of the same goods were found in the premises of 
 the accused, and you further find that the defendant has been 
 unable to give any reasonable explanation of how he came by 
 such possession, then such facts should be regarded by the 
 jury as raising a strong presumption that the defendant was 
 himself guilty of feloniously taking the property." 
 
282 Phalen's Ceiminal Cases. 
 
 This instruction is erroneous. Tlie rule is well settled that 
 the recent possession of stolen property, unaccounted for, is a 
 strong presumption or prima facie evidence, of guilt. Warren 
 V. The State, 1 G-. Greene, 106; The State v. Taylor, 25 Iowa, 
 273; The State v. Brady, 27 id., 126; Jones v. The People, 12 
 111., 259; Commonwealth v. Millard, 1 Mass., 6; 3 Greenl. 
 Ev., §§ 31, 32 and 33. 
 
 What is to be termed recent possession depends very much 
 upon the character of the goods stolen. If they are such as 
 pass readily from hand to hand, the possession, in order to 
 raise a presumption of guilt, should be much more recent 
 than if they were of a class of property that circulated more 
 slowly; or is really transmitted. 
 
 There may be cases where the possession is so long after the 
 commission of the crime that a court will refuse to submit the 
 question to the jury, deciding, as a matter of law, that the pos- 
 session is not recent, but in all other cases the question is one 
 of fact, to be submitted to the jury. See Hex v. Partridge, 7 
 Car. & P., 551; The State v. Bennett, 3 Brev., 514; The State 
 V. Jones, 3 Dev. & Bat., 122; Eex v. Adams, 3 Car. & P., 600; 
 Kegina v. Cruttenden, 6 Jur., 267; Commonwealth v. Mont- 
 gomery, 11 Mite., 534; Engleman v. The State, 2 Ind., 91; 
 Price V. The State, 846. 
 
 The instruction was erroneous, in that it directed the jiiry 
 that, as a matter of law, proof of possession of part of the 
 stolen goods, four months after the commission of the crime, 
 was recent possession, from which a strong presumption of 
 guilt arose, unless the possession was satisfactorily explained. 
 The judgment must, therefore, be reversed, and a new trial 
 ordered. 
 
 Reversed. 
 
Webb v. The State. 283 
 
 "Webb r. The State. 
 (8 Texas, Ot. of App. 115.) 
 
 Lakcbny.— The possession of other stolen property, besides that de 
 scribed in the indictment, may be shown. 
 
 Generally a defendant cannot make evidence for himself by showing his 
 own declarations. 
 
 "Where one is being tried for theft, it is en-or to admit proof of a sepa. 
 rate and independent larceny. 
 
 The appellant and liis brother were charged with the theft 
 of a mare, belonging to one Hines, on the 20th day of Janu- 
 ary, 1879. On the application of Sam Webb, a severance was 
 granted; other facts are sufficiently stated in the opinion. 
 
 WiNKLEE, J. On the trial below, the appellant, having sev- 
 ered from his co-defendant, and being alone on trial for the 
 theft of one of two animals which appear to have been stolen 
 from the same immediate neighborhood in Lamar county, and 
 about the same time counsel for the state, it seems from the 
 record, not having direct and positive evidence of the guilt of 
 the defendant, had resort to circumstantial testimony in order 
 to procure a conviction. In pursuance of this line of proce- 
 dure, proof was adduced tending to show that the two persons 
 jointly indicted for the the theft of one of the animals, alleged 
 to have been stolen in Lamar county, were seen together at 
 Ennis, in Ellis county, a distance of some one hundred and 
 forty miles from the scene of the theft, and soon after the per- 
 petration of the theft J the two men being in possession of the 
 two animals taken from Lamar county. At this stage of the 
 
284 Phalen's Criminal Cases. 
 
 evidence, the counsel for the state offered to prove that the 
 two defendants, when on their return from Ellis to Lamar, 
 were seen in possession of certain horses other than the one 
 mentioned in the indictment, which the county attorney pro- 
 posed to prove had been stolen by the defendants in Ellis 
 county. This testimony was objected to by the defendant's 
 counsel as irrelevant and inadmissible. The objection was 
 overruled and the testimony was admitted, apparently on the 
 ground that the supposed theft in Lamar county, and that com- 
 mitted in Ellis county, were parts of one transaction. 
 
 The rule where one accused of crime is found in possession 
 of the fruits of the crime, as evidence conducing to establish 
 his guilt, seems to be as follows: The force and value of such 
 testimony will depend on several considerations. If the facts 
 of j)ossession stand alone, wholly unconnected with any other 
 circumstances, its value or persuasive power, it is said, is very 
 slight, and, agreeably to Mr. Greenleaf , it will be necessary for 
 the prosecution to add the proof of other circumstances indi- 
 cative of guilt in order to make the naked possession of the 
 thing available towards a conviction : 3 Greenl. on Ev., sec. 31. 
 Yarious examples are given in the books of such circumstances 
 naturally calculated to awaken suspicion, and to corroborate 
 the inference of guilt arising from the fact of possession, and 
 among them is the fact that he was possessed of other stolen 
 property. See the section from 3 Greenleaf cited above. 
 
 The fact that such proof would be admissible for the pur- 
 pose of corroborating the fact of possession of the property 
 averred to have been stolen, would apply if the other stolen 
 property was found in the possession of the alleged thief at 
 the time he is found in the possession of the property he is 
 accused of stealing. So, if it had been shown that, at the time 
 the defendant and his confederate were found in the possession 
 of the horse for the theft of which they, or either, were prose- 
 cuted (that charged to have been stolen in Lamar county), they 
 had also been found in possession of other property, the horses 
 alleged to have been stolen in Ellis county, the testimony 
 would have been admissible. As the case was developed, how- 
 ever, it seems that the theft committed in Lamar county and 
 that committed in Ellis county, were not, as the judge seems 
 
Webb v. The State. 285 
 
 to liave supposed, parts of one transaction, but two separate 
 transactions ; and therefore the testimony of a different trans- 
 action than the one charged in the indictment should have been 
 excluded from the jury, either at the time it was first offered,. 
 or when the defendant moved the court to exclude it after it 
 had been admitted over his objection. Testimony of this na- 
 ture, it is true, is sometimes admitted when soientur, or guilty 
 intent, is the subject of inquiry: Francis v. The State, 7 Texas, 
 Ct. App. 501 ; but it was not offered for such purpose in the 
 present case. 
 
 It is shown by a bill of exceptions that the defendant offered 
 to prove certain statements made by the defendants prior to 
 their trip to Ellis county, going to show the motive and object 
 they had in going from Lamar to Ellis county, which they 
 claim was an innocent intention. This testimomy was not 
 part of the transaction ; it was mere hearsay, and clearly inad- 
 missible, and the court did not err in excluding it from the 
 jury. 
 
 Among other things, the court charged the jury as follows: 
 " The fact that one charged with theft is found in possession of 
 stolen property is not alone sufficient to authorize a conviction, 
 but this fact is a circumstance to be considered by the jury in 
 determining the guilt or innocence of the accused ; and if this, 
 in connection with other facts and circumstances in evidence, 
 satisfies the minds of the jury, beyond a reasonable doubt, 
 that the accused is the guilty party, they should find a verdict 
 of guilty." The defect in this charge is that it assumes as a 
 fact that the defendant was found in the possession of the ani- 
 mal alleged to have been stolen. This charge is an expression 
 of opinion as to the weight of evidence, and is violative of 
 article 677 of the Code of Criminal Procedure. 
 
 We are of opinion there was error in admitting proof of a. 
 separate and independent theft, and that the court, whilst usu- 
 ally careful and accurate in its charges, in the charge set out 
 above gave the jury an improper charge, likely to have been 
 applied by the jury to the prejudice of defendant. For these 
 errors, the judgment must be reversed and a new trial allowed. 
 
 Reversed and remanded. 
 
286 Phai-en's Criminal Cases. 
 
 Note. — In Taylor v. State, 13 Texas Ct. of App., 205, the defendant was 
 charged witli the larceny of a cow. It was held that evidence of the pos- 
 session of other cattle alleged to have been stolen was admissible only 
 to establish the identity of the herd in which the stolen animal was found. 
 
 In People v. Canifl, 3 Parker's 0. K., 586. 
 
 Jambs J., upon this point says : " Proof that stolen goods were found 
 upon the person of the prisoner, or in his house or possession, is presump- 
 tive evidence against him of having stolen them, and sufficient to call 
 upon him to explain his possession ; but before any such presumption can 
 arise, the goods found upon the accused must be shown to have been 
 stolen. No presumption of guilt can arise from the bare possession of 
 property, and no man is called upon to explain his possession of property, 
 until it is proved that it was stolen." 
 
 SCHLINGEE, ET AL., V. The PeOPLE. 
 (102 111., 241.) 
 
 Lakcent. — Eecent possession of stolen property is suflBcient to warrant 
 a conviction, unless the attending circumstances so far overcome the pre- 
 sumption thus raised as to create a reasonable doubt. 
 
 A prisoner can not voluntarily absent himself at the moment the verdict 
 is rendered, and take advantage of his absence to avoid judgment upon the 
 verdict. 
 
 Opinion of witness as to mere matters of fact is not admissible. 
 
 Newly discovered cumulative evidence not always ground for a new trial. 
 
 Writ of Error to the Criminal Court of Cook county. 
 
 Mr. Thomas Shirley, for the plaintiff in error. 
 
 Mr. James McCartney, Attorney General for the People. 
 
 The facts are sufficiently stated in the opinion. 
 
 Mr. Chief Justice Ceaig delivered the opinion of the court: 
 This was an indictment against Henry Schlinger and Samuel 
 
SCHLINGEE ET AL. V. ThE PeOPLE. 287 
 
 Schlinger, for larceny and burglary. The indictment contained 
 four counts. The first count charged larceny of a certain 
 quantity of cloth, the property of Alfred Hitchcock. The 
 second count charged defendants with receiving stolen goods 
 knowingly. The third count charged burglary of the same 
 goods from the same person, with force, on the 1st day of April, 
 1880. The fourth count is like the third, except the burglary 
 was charged with force, and on April 1st, 1880. On a trial 
 before a jury the defendant was found guilty in manner and 
 form as charged in the indictment. The value of the stolen 
 property was found to be $318, and the term of imprisonment 
 of defendant, Henry Schlinger, fixed at seven years in the 
 penitentiary, and the other defendant ten years. The court 
 overruled a motion for a new trial and in arrest of judgment 
 and rendered judgment on the verdict. 
 
 It will be observed that the jury returned a general verdict 
 of guilty, in manner and form as charged in the indictment, 
 and as the third count of the indictment was bad, it is urged 
 that the judgment on the verdict is erroneous. The indict- 
 ment contains three good counts, and under the uniform ruling 
 of this court the judgment was proper and regular, although 
 the indictment contained one bad count. Townsend v. The 
 People, 3 Scam., 326; Holliday v. The People, 4 Gilm., Ill; 
 Lyons v. The People, 68 111., 272. 
 
 It is next iirged that the court erred in giving instruction 
 number one for the People, which was as follows: 
 
 " The jury are instructed, as a matter of law, that possession 
 of stolen property, immediately after the theft, is sufficient to 
 warrant a conviction, unless attending circumstances or other 
 evidence so far overcomes the presumption thus raised as to 
 create a reasonable doubt of prisoner's guilt, when an acquittal 
 should follow." 
 
 The law is well settled that recent possession of stolen prop- 
 erty, in no manner explained by the prisoner, will warrant a 
 conviction. As was said in Comfort v. The People, 54 111., 
 404: "The books agree that a recent possession of stolen prop- 
 erty after the theft is sufficient to warrant a conviction, unless 
 the attending circumstances or other evidence so far overcomes 
 the presumption thus raised as to create a reasonable doubt of 
 
288 Phalen's Criminal Cases. 
 
 the prisoner's guilt." The instruction does not seem to con- 
 flict in any manner with the doctrine announced in the case 
 cited, but seems to be in entire harmony with the rule there 
 announced, which is fully sustained by the authorities. We 
 perceive no substantial objection to the instruction, and do not 
 believe the jury were in any manner misled by it. 
 
 It is also contended that the last instruction given for the 
 People is erroneous. It is as follows : 
 
 " The jury are instructed, as a matter of law, that their ver- 
 dict should extend also to the case of the defendant, Samuel 
 Schlinger, though he is not now present in court." 
 
 It appears from the record that this case was called for trial 
 May 11, 1881, and a default was taken against Samuel 
 Schlinger, who was not then present. A jury was called and 
 sworn to answer questions, when ah adjournment was had 
 until the following day. On May 12th, when court opened, as 
 appears from the record, all the defendants appeared, and a 
 jury was empanneled to try all of the defendants. On May 
 13th all the defendants were present, but on May 14th, when 
 the trial was concluded and the instructions given, it appears 
 that Samuel was absent. On the motion for a new trial, the 
 defendant read an affidavit of one Rosa Memlick, from which 
 it appears that he came to her house on the afternoon of the 
 last day of the trial, and was taken sick while there. The de. 
 fendant, however, although he filed his own affidavit on another 
 subject, does not undertake to give any excuse for leaving the 
 court while the trial was in progress, nor does he give any rea- 
 son for his absence. The question presented by the instruction 
 is, whether a defendant in a criminal case can stop the progress- 
 of a trial, and thus defeat the ends of justice, by deserting the 
 court room during the last hours of a trial, or has the court 
 the power to proceed and finish the trial in the absence of a. 
 defendant? 
 
 In HoUiday v. The People, 4 Gilm., Ill, which was an in- 
 dictment for procuring an abortion, where the verdict waa 
 received in the absence of the defendant, it was held, according- 
 to the principles of the common law, in all capital cases, the 
 verdict must be received in open court, and in the presence of 
 the prisoner ; but that rule did not apply to a misdemeanor. 
 
SCHLINGER ET AL. V. ThE PeoPLK. 289 
 
 No opinion was, howeyer, expressed in regard to what was the 
 proper rule in cases of felony. .There is no doubt but a pris- 
 oner on trial for a felony has a right to be present at every 
 step taken in his case, and it would be error for the court to 
 deprive him of that right without his consent, unless it might 
 become necessary to remove him from the court room, tempo- 
 rarily, for disorderly conduct ; but where a prisoner, after a trial 
 has begun, wrongfully and voluntarily abandons the court room, 
 and refuses to appear, he must be regarded as having waived a 
 right which is guaranteed to him, if he sees proper to avail 
 himself of it, and the coiirt is under no obligations to stop the 
 trial until the defendant thinks proper to return, but in such a 
 case the court would not transcend any of its legitimate powers 
 by proceeding with the case to linal judgment. The consti- 
 tutional right of a prisoner to appear and defend in person and 
 by counsel, to demand the nature and cause of the accusation, 
 to meet the witnesses face to face, was conferred for the pro- 
 tection and the benefit of one accused of a ■ crime, but, like 
 many other rights, no reason is perceived why it may not be 
 waived by the prisoner. He may, if he sees proper, waive any 
 trial, and plead guilty to an indictment. If he may do this, 
 he may waive the right to cross-examine a witness, or to be 
 present when his case is argued to the jury, or when the ver- 
 dict is received. 
 
 A similar question arose in "Wilson v. The State, 2 0. S., 
 319, where it is said: "The remaining error assigned is, that 
 the verdict was received in the absence of the defendant below. 
 If he had been in prison, or had been prevented by improper 
 means from being present when the verdict was rendered, we 
 should regard this as a fatal error." 
 
 In Koss V. State, 20 Ohio, 33, it was held that it was the 
 right of the prisoner to be present at the time the verdict was 
 rendered, and if deprived of this right by imprisonment, or 
 any other improper manner, the verdict should not be followed 
 by judgment. But the defendant was not imprisoned, nor was 
 he prevented by any improper means from being present at 
 the rendition of the verdict. Pie was at large on his own 
 recognizance, and presumed to be present if he kept it. He 
 can not, in such a case as the present, voluntarily absent him- 
 19 
 
290 Phalen's Criminal Cases. 
 
 self at the moment the verdict is rendered, and take advantage 
 of that absence to avoid judgment upon the verdict. What 
 was said in the case cited applies here. The defendant was 
 not imprisoned, nor was he prevented by any improper means 
 from being present when the verdict was rendered. He volun- 
 tarily and wrongfully absented himself, and he can not now 
 claim any advantage on acccount of such absence. It was the 
 duty of defendant to be present when the case was submitted 
 to the jury, and when the verdict was returned, but he can not 
 claim any advantage from a failure to observe the duty, when 
 lie was absent of his own accord. Hill v. The State, 17 Wis., 
 697. He can not be permitted to take advantage of his own 
 wi-ongs, and thus defeat the ends of justice. It was the defen- 
 dant's own fault that he was not present when the verdict was 
 rendered. The defendant's voluntary abandonment of the trial 
 must be regarded as a waiver of the right to be present when 
 the verdict was returned into court. 
 
 It is also urged that the court erred in the modification of 
 certain instructions; but what the modification was, and in 
 what the error consisted, has not been pointed out, and we are 
 unable to determine, from an inspection of the record, whether 
 any error occurred in this regard or not. If any serious ob- 
 jections existed to the modification of the instructions, they 
 should have been pointed out in the argument. 
 
 It is contended that the court erred in refusing to allow the 
 witness Hitchcock, on cross-examination, to state the names of 
 the house in Baltimore of whom he purchased goods. Much 
 latitude is often given in the cross-examination of witnesses, 
 especially where it appears that the witness is attempting to 
 evade or conceal the truth, but the witness, Hitchcock, seemed 
 to be perfectly fair, and endeavored to tell the truth fully and 
 fairly, and we are at a loss to perceive how the names of the 
 firms of whom the witness purchased goods could throw any 
 light on the question of the guilt or innocence of the de- 
 fendants. 
 
 It is also claimed that the court erred in refusing to permit the 
 defence to ask the witness, Annie 8chlinger, whether defend- 
 ants were away from the house on the night of the larceny, 
 from the time they went in until she went to bed. Upon an 
 
SCHLINGEE ET AL. V. ThE PeOPLE. 291 
 
 examination of the record, it will be found that this witness tes- 
 tified very fully on the subject. She says, in substance, that 
 the defendants were not away from the house that evening, 
 and went to bed at ten o'clock. She Avas further asked if de- 
 fendants were away from the house as much as half an hour. 
 To this she replied, not that she knew of. She was then asked^ 
 could they have been gone that time without her knowing it. 
 This question the court decided was improper, and we think 
 properly, as the witness had detailed fully all she knew on the 
 subject. The answer would be a mere matter of opinion of 
 the witness. Other objections of a similar character have been 
 made to the ruling of the court on questions of evidence, but 
 we do not find any of them well taken. 
 
 It is also claimed that a new trial should have been granted 
 because of newly discovered evidence. The newly discovered 
 evidence is that of one John T. Simins. He states that he 
 knows who stole the goods in question, and that the defendants 
 are innocent; that he saw the goods in a certain room in 
 Chicago after they were stolen, and went with the goods, when 
 they were taken from Chicago, as far as De Kalb, Illinois. 
 This evidence, had it been before the jury, could not be 
 regarded as decisive. The rule adopted in this State is, that a 
 new trial will seldom be granted to let in newly discovered 
 cumulative evidence, and then only when it seems to be de- 
 cisive in its nature. Sulzer v. Yott, 57 111., 164. This evi- 
 dence is not of that character. If the affidavit of the pro- 
 posed witness be true, it is apparent that he himself was a 
 party to the crime, and had been a witness before the jury 
 his evidence, when weighed in connection with the other evi- 
 dence in the case, could not have turned the scales in the 
 defendant's favor. 
 
 After a careful examination of the whole record, we fail to 
 find any substantial error. The judgment will be afiirmed. 
 
 Judgment affirmed. 
 
 Note. — To the point that possession of property recently stolen is pre- 
 sumptive evidence of guilt, see "Waters v. People, p. 153. 
 
292 Phalen's Ceiminal Cases. 
 
 State v. Graves. 
 (73 N. C, 482.) 
 
 Larceny. — Where goods are stolen, one found iu possession so soon 
 thereafter, that he could not have reasonably got the possession unless he 
 had stolen them himself, the law presumes he was the thief. 
 
 The above rule has been reduced to very narrow proportions, and is never 
 applicable when it is necessary to resort to other evidence to support the 
 conclusion. 
 
 Indictment foe Bujbglaey, tried before Kkee, J., at De- 
 cember term, 1874, Gilford Superior Court. 
 
 The case is sufficiently stated iii the opinion. 
 
 Pearson, C. J. The fact that the "watch and chain" were 
 found in the possession of the prisoner at Danville, on the 
 Monday after the burglary, on Saturday night preceding, at 
 Greensboro, connected with the fact that he was offering to 
 dispose of the articles at much less than their value, and made 
 contradictory statements as to how he got them, were matters 
 tending to show either that the prisoner was the man who 
 broke and entered the dwelling house and stole the watch and 
 chain, or else that he had received the goods, knowing them to 
 have been stolen. These facts, talien in connection with the 
 evidence of the mysterious movements of Jim Edwell and 
 Jennie Stevens, about the premises on the night of the bur- 
 glary, were lit subjects for the consideration of the jury. 
 
 His honor committed manifest error in taking the case from 
 the jury and ruling that "if the jury believe from the evi- 
 
State v. G-raves. 293 
 
 -dence that the prisoner was in possession of the watch and 
 chain in Danville, on the Monday after the watch and chain 
 were stolen on Saturday night, in Greensboro, the law jyre- 
 sumed he was the thief, and had stolen the watch and chain, 
 and that the prisoner was bound to explain satisfactorily how 
 he came by the goods." The rule is this : " Where goods are 
 stolen, one found in possession so soon thereafter, that he 
 <3ould not have reasonably got the possession unless he had 
 stolen them himself, the law presumes he was the thief." 
 
 This is simply a deduction of common sense, and when the 
 fact is so plain that there can be no mistake about it, our 
 courts follow the practice in England, where the judge is 
 allowed to express his opinion as to the weight of the evidence, 
 have adopted it as a rule of law, which the judge is at liberty to 
 act on, notwithstanding the statute, which forbids a judge from 
 intimating an opinion as to the weight of the evidence. But this 
 Tule, like that oifalsum in uno,falsum in oinnihus, and the pre- 
 sumption of fraud, as a matter of law, from certain fiduciary 
 xelations, see Pearce v. Lea, 68 N". C, 90, has been reduced to 
 very narrow proportions, and is never applicable when it is 
 necessary to resort to other evidences to support the conclusion ; 
 in other words, the fact of guilt must be self-evidence from the 
 bare fact of being found in the possession of the stolen goods, 
 in order to justify the judge in laying it down, as a presump- 
 tion made by the law, otherwise it is a case depending on cir- 
 cumstantial evidence, to be passed on by the jury. 
 
 In our case, so far from the fact of guilt, to wit: that the 
 prisoner broke and entered the house and stole the watch and 
 chain, being self-evident, it is a matter which, under the circum- 
 stances proved, admits of grave doubt, for it may well be that 
 the prisoner merely received the watch and chain after some 
 one else had committed the burglary, which would change the 
 grade of the crime very materially. As the case goes back for 
 another trial, it is a matter for the solicitor of the state to 
 consider whether it will not be well to send a new bill con- 
 taining other counts to meet the different aspects of the case^ 
 as it may be looked upon by the jury. 
 
 Yenire de novo. 
 
294 Phalen's Criminal Cases. 
 
 Commonwealth v. Titus. 
 
 (116 Mass., 42.) 
 
 Lakceny by finder of lost riooDS. — Where the finder of lost goods, at 
 the time of taking them into his possession, knows, or has reasonable means 
 of knowing, who the owner is, but intends at the time to appropriate them 
 to his own use, he may be convicted of larceny. But if he has no felonious 
 intent at tlie time of taking them into liis possession, a subsequent conver- 
 sion of tliem to his own use will not constitute larceny. 
 
 Geay, C. -J. The rulings and instructions at the trial were 
 quite as favorable to the defendant as the great weight, if not 
 the unanimous concurrence, of the cases cited on either side 
 as the argument would warrant. 
 
 The finder of lost goods may lawfully take them into his 
 possession, and if he does so without any felonious intent at 
 that time, a subsequent conversion of them to his own use, by 
 whatever intent that conversion is accompanied, will not consti- 
 tute larceny. But if, at the time of first taking them into his 
 possession, he has a felonious intent to appropriate them to his 
 own use, and to deprive the owner of them, and then knows 
 or has the reasonable means of knowing or ascertaining, by 
 marks on the goods or otherwise, who the owner is, he may be 
 found guilty of larceny. 
 
 It was argued for the defendant that it would not be suffi- 
 cient that he might reasonably have ascertained who the owner 
 was ; that he must at least have known at the time of taking 
 the goods that he had reasonable means of ascertainine: that 
 fact. But the instruction given did not require the jury to be 
 satisfieil merely that the defendant might reasonably have 
 
Peopj.e y. Swan. 295 
 
 ascertained it, but that at tlie time of the original taking he 
 either Icnew, or had reasonable means of Icnowing or ascer- 
 taing, who the owner was. Such a finding would clearly 
 imply that he had such means within his own knowledge, as 
 well as within his own possession or reach at that time. 
 
 It was further argued that evidence of each of the defend- 
 ants, subsequent to the original finding and taking, was 
 wrongly admitted, because such acts might have been the 
 result of a purpose subsequently formed. But the evidence of 
 the subsequent acts and declarations of the defendant was 
 offered and admitted, as the bill of exceptions distinctly states, 
 for the single purpose of ^'proving, so far as it tended to do so, 
 the intent with which the defendant originally took the prop- 
 erty into his possession at the time of finding it. And the 
 bill of exceptions does not state what the acts and declarations 
 admitted in evidence were, and consequently does not show 
 that any of them had a tendency to prove that intent, nor 
 indeed that any acts were proved except such as accompanied 
 and gave significance to distinct admissions of the intent with 
 which the defendant originally took the goods. 
 
 Exceptions overruled. 
 
 Pe(.)ple v. Swan. 
 (1 Parker, C. R. 9.) 
 
 Labceny by finder of lost goods. — If the finder of lost goods, at the 
 time of taking them into liis po.-sspssion, kno\\'s, or has the reasonable means 
 of knowing or ascertaining, who the owner is, but intends at the time to 
 appropriate them to his own use, and deprive the owner of them, he may 
 be found guilty of larcen}'. 
 
296 Phalen's Ceiminal Cases. 
 
 The indictment charged the prisoner with the larceny of a 
 pocket-book, containing one hundred dollars in money, the 
 property of Alonzo Howland. 
 
 From the evidence it appeared that the prosecutor entered a 
 necessary, on a call of nature, and left the pocket-book and 
 money on the bench or seat, forgetting it when he came out. 
 In a short time he missed it, and upon his return it was gone. 
 The prisoner absconded, was followed to Albany, and found 
 with the pocket-book and part of the money in his possession. 
 The pocket-book also contained j^aj^ers bearing the name of the 
 owner. The prisoner stated to the arresting officer that he 
 knew from the papers it contained that it, belonged to the 
 prosecutor; that if he got another pocket-book the officer 
 would not get it so easily. 
 
 For the prisoner, it was insisted that the prisoner was the 
 hona fide finder of lost property, and could not be convicted 
 of larceny by a fraudulent conversion. 
 
 WiLLAED, Circuit Judge. It has been said that if a man 
 lose goods, and another find them, and not knowing the o"\vner 
 converts them to his own use, it is no larceny. This rule sup- 
 poses that the finder acts bona fide, is ignorant of the owner, 
 and may, therefore, have a warrantable ground to suppose that 
 the goods will never be claimed, and the owner will never be 
 discovered. Such seems to have been the view of the supreme 
 court in the case of The People v. Anderson, (a) cited by the 
 prisoner's counsel. The particulars of the case are not de- 
 tailed, but it assumes that the owner had lost the goods, and 
 that the defendant was an honest finder. 
 
 The law, however, clearly holds a prisoner guilty criminally, 
 who, knowing the owner, converts the property to his own 
 use. It is the duty of the finder to restore property which he 
 has found, to the rightful owner, and if there are marks upon 
 it, by which the owner can be ascertained, or if he has reason- 
 able grounds to believe who the owner is, he will be guilty of 
 larceny if he ci inverts it to his own use. 
 
 In the present case, the pocket-book and money can not be 
 said to have been lost, in the strict technical sense of the term. 
 
 (a) Ppople V. Anderson, 14.T. R.,294. 
 
Pkoplb v. Swan. 297 
 
 The prosecutor left it by accident for a few minutes in an unu- 
 sual place, but knew where it was left. If the prisoner, when 
 he discovered it, had no reasonable ground to believe that it 
 had been abandoned by the owner, or that its owner never 
 would be found; if he knew whose property it was, before he 
 converted it to his own use; if he took no means to restore it to 
 its owner, but on the contrary fled and endeavored to conceal it, 
 :and appropriated it to his own use, the jury will be warranted 
 in finding him guilty. 
 
 The jury found the prisoner guilty, and he was sentenced to 
 the state prison for three years and six months. 
 
 Note. — In State v. Weston, 9 Conn., .527, there was evidence to the eflect 
 that the prisoner found a pocket-book containing money, on tlie highway, 
 with the owner's name legibly written in two places in the pocket-book. 
 The following instruction was held correct: " If the defendant found the 
 pocket-book and bank bills as claimed by him, and knowing or having the 
 means of knowing the owner, concealed them and converted them to his 
 own use, instead of giving notice thereof to the owner, he was a thief, and 
 ought to be found guilty." 
 
 In Hunt V. Com., 13 Grat. (Va.), 757, the court said : " To constitute lar- 
 ceny, in the finding of goods actually lost, it is not enough that the party 
 has general means, by the use of proper diligence, of discovering the true 
 owner. He must know the owner at the time of the finding, or the goods 
 must have some mark about them, understood by him, or presumably 
 known by him, by which the owner can be ascertained. And he must ap- 
 propriate them at the time of finding with intent to take entire dominion 
 over them." 
 
 In People v. Cogdell, 1 Hill., N. Y., 94, it was held that in order to con- 
 vict the finder of lost property, as for a larceny, he must know who the 
 owner is, at the time he acquires possession, or have the means of identi- 
 fying him instanter, by marks then aboiit the property which the finder 
 understands. It is not enough that he has general means of discovering the 
 owner by honest diligence, etc. 
 
 In Taylor v. People, Breese, (1 111.,) 337, it was held that larceny could not 
 be committed of goods and chattels found in the highway, where there are 
 no marks by which the owner can be ascertained. 
 
 In People v. Kaatz, 3 Parker C. R., 139, it was held the rule that larceny 
 could not be committed of goods accidentally lost, and of which the finder 
 really supposes that the owner could not be ascertained, does not apply to 
 cattle which have strayed from the enclosure of the owner upon the public 
 highway. 
 
298 Phalen's Criminal Cases. 
 
 People v. Campbell. 
 
 (4 Parker C. R., 386.) 
 
 Larceny. — A statute, declaring all personal property the subject of lar- 
 ceny, includes the property in a dog. 
 
 The case is suiSciently stated in the opinion. 
 
 EussELL, J. The defendant was indicted at the last March 
 term of this court for grand larceny, in stealing, as averred, 
 one dog of the value of §50, and one collar, of the value of 
 $1, the projjerty of Jeronomus S. Underhill. A demurrer to 
 the indictment was argued before me at the last July term, on 
 the ground that the stealing of a dog was not an offence by 
 the law of this state. Accompanying the indictment was a 
 stipiilation that it be considered as alleging that the dog in 
 question was reclaimed, and made tame and domestic; and 
 that the defendant, knowing it to be such, feloniously took and 
 carried it away; and, further, that the averment in the indict- 
 ment as to the theft of the collar be deemed to have been 
 omitted. The object was to present the question as though the 
 indictment had been framed upon the simple, felonious taking 
 of the dog. It is impossible for the court to consider this 
 stipulation in deciding the question as to whether a dog is 
 property so as to be the subject of larceny. If it should be 
 determined that a dog is not the subject of such an offence, 
 the indictment would stand for the collar, which would make 
 it in effect an indictment for petit larceny. If it should be 
 so determined, and the prosecution cannot supjDort the charge 
 
People v. Campbell. 299 
 
 of stealing the collar, then, of course, the district attorney 
 would 7iol pros, the indictment. jSTo stipulation of this char- 
 acter can affect the structure of the indictment as it emanated 
 from the grand jury. The charge, as made, being a felony, 
 the constitution of this state requires the presentment or in- 
 dictment of a grand jury as a pre-requisite to trial; and if 
 the pleading they file with the court could be remodeled by 
 stipulations between the counsel, the defendant would not be 
 tried upon the presentment of the grand jury, but rather upon 
 the consent of the counsel. 
 
 This court cannot acquire jurisdiction to try any offence by 
 consent, nor can its jurisdiction over an offence be changed by 
 consent so as to embrace any other than that presented by the 
 grand jury, where the action of that body is requisite. If the 
 form of an indictment does not suit a prosecuting officer, his 
 only remedy is by reindicting. On the trial of an indictment, 
 certain omissions can be disregarded hj the court, 2 E. S., 728, 
 352; but unless the power is conferred by statute, or is war- 
 ranted by the acknowledged rules of pleading, the court is not 
 vested with "it. The right does not extend to adding to or ex- 
 j)unging from the indictment substantial allegations. In the 
 case of Cancemi v. The People, 18 IST. Y. E., 128, in which it 
 was held that a prisoner could not consent to be tried by less 
 that the constituted number (twelve) of jurors, Steokg, J., 
 who delivered the judgment of the court of appeals, used this 
 language: " There is obviously a wide and important distinc- 
 tion between civil suits and criminal prosecutions as to the 
 right of a defendant to waive a strict, substantial adherence to 
 the established constitutional statutory and common law mode 
 and rule of judicial proceedings." The present indictment is 
 a constitutional mode of proceeding, within the principle of 
 this remark, and the defendant can waive no legal right by 
 any consent he may give in reference to its important averments. 
 
 I have concluded to pass upon the question presented, and 
 which was argued with ability on both sides, for the purpose 
 of fixing the character of the indictment as to being one for 
 grand or petit larceny. 
 
 At the common law, larceny could be committed of domestic 
 cattle, i. e., sheep, oxen, horses, etc., or of domestic fowls, i. e., 
 
'300 Phalen's Criminal Cases. 
 
 iiens, ducks, geese, etc., because, according to Lord Hale, they 
 were " under propriety," and served for food. So, as to beasts 
 or hirda, ferae naturw, wliicli were reclaimed and made tame or 
 domestic, and served for food, i. e., deers, pheasants, partridges, 
 etc., if the thief knew them to be tame. It could not be com- 
 mitted as to some things whereof the owner might have a law- 
 ful property, and " such whereupon he might maintain an 
 action of tresjjass " — i. e., mastiffs, spaniels, greyhounds, blood- 
 hounds, by reason, as Lord Hale says, of the baseness of their 
 nature; nor of some things wild by nature, yet reclaimed by 
 art or industry — i. e., bears, foxes, ferrets, etc., because they 
 served not for food, but pleasure, 1 Hale's P. C, 510, 611. The 
 same rules are stated in substance in 2 East, P. C, 607, 
 614, except as to dogs, because, when this author wrote, the 
 statute 10 Geo. III., c. 18, was in force, making the stealing 
 of dogs punishable upon a conviction before two justices. 
 Blackstone repeats the same rules, 4 Bl. Com., 235, 236, and 
 says that " dogs of all sorts, and other creatures kept for whim 
 and pleasure, though man may have a sort of base property 
 therein, and maintain a civil action for the loss of them, are 
 not of such estimation as that the crime of stealing them 
 amounts to larceny." If this author means to say that a civil 
 action could be maintained for the value of dogs, if wrongfully 
 taken, it is difficult to see why they were not within the pro- 
 tection of the criminal law at the time he wrote. It will be 
 observed, too, that instead of using the term baseness in con- 
 nection with the nature of dogs, he used it to stamp the kind 
 of property which can be possessed or enjoyed in them. 
 
 As such part of the common law as formed the law of the 
 Colony of !N"ew York on the 19th day of April, 1775, have 
 been retained by the constitution of the state, subject to the 
 power of the legislature to alter them. Const., art. 1, § 17, and 
 as dogs were not the subject of larceny at the common law at 
 that time, it is proper to consider whether the legislature has 
 altered the common law in this particular. At common law 
 the only description of property, which could be the subject of 
 larceny, was "mere movables having an intrinsic value.'' 
 Things savoring of the realty and written instruments were 
 added by statutes. The People v. Loomis, 4 Denio, 380. The 
 
People v. Campbell. 301 
 
 statutes of tHs state have extended the law of larceny further 
 than the English statutes did. Ih. Ey the 2 E. S., 679, sec. 
 363, it is provided that " any person who shall be convicted of 
 the felonious taking and carrying away the personal property 
 of another, of the value of more than twenty -five dollars^ 
 shall be adjudged guilty of grand larceny," etc. " Personal 
 property," as here used, is defined by a subsequent section, 3 
 R. S., 702, § 33, " to mean goods, chattels, effects, evidences of 
 rights in action and all written instruments," etc. 
 
 Sections 64 and 65 increase the offence if committed in a 
 dwelling house, or in a ship or other vessel, or if committed 
 by stealing in the night-time from the person of another. 
 Section 68 relates to the offence of severing produce fi-om the 
 soil of another, or property from the building of another, to 
 the value of more than twenty -five dollars, which was not 
 larceny at the common law. Sections 66 and 67 were intended 
 rather to be rules of evidence than to serve to create or desig- 
 nate any distinct offences. They relate to written instruments, 
 i. e., bonds, covenants, notes, bills of exchange, drafts, orders, 
 receipts, lottery tickets, etc., and provide for ascertaining the 
 value of such securities, or declare what shall be their value, 
 if stolen, considered as the subject of larceny. They com- 
 mence thus : " If the property stolen consist of any," etc.,. 
 showing that the particular property referred to is " personal 
 property," within section 63. Section 69 relates to the steal- 
 ing of the records, etc., of courts of justice. Since the revised 
 statutes went into operation, the legislature have made the 
 offence of stealing railroad passenger tickets, before the sale 
 thereof, or before being issued to the agents of the companies 
 for sale, the subject of larceny. 3 R. S., 5th ed., 969, 960, §§ 
 75, 76, 77. This is a new crime, and would not have been the- 
 subject of larceny under The People v. Loomis, cited above. 
 As the law stood, these tickets would have had no value until 
 they had been issued by their respective companies. 
 
 As I understand section 63 of the statute, it is meant to de- 
 fine the offence of grand larceny in reference to personal prop- 
 erty, and to declare that everything which is personal property, 
 which can be, or is held or enjoyed as personal property, is 
 within the protection of the statute. It appears as though the 
 
302 Phalen's Ceiminal Cases. 
 
 legislature, instead of entering iipon a minnte statement of the 
 kinds or species of personal property which could be the sub. 
 "ject of larceny, designed that this section should be construed 
 in the most comjDrehensive provision of the constitution of this 
 state, that no person shall be " deprived of life, liberty or prop- 
 erty, without due pro,cess of law." If the meaning of the 
 term " property " can be ascertained in the latter case, the mean- 
 ing of the terms " personal property" certainly can be in the 
 former. 
 
 The provision of the constitution underwent judicial con- 
 sideration in the case of Wynehamer v. The People, 3 Kern., 
 378. That case will be remembered as involving the consti- 
 tutionality of the late law to prevent intemjjerance in this 
 state, the court of appeals decided against the law. Coji- 
 STOOK, J., in his opinion, p. 396, used this language: " IS'ow, 
 I can form no notion of property which does not include the 
 essential characteristics and attributes with which it is clothed 
 by the law of society. In a state of nature property did not 
 exist at all. Every man might then take to his use what he 
 pleased, and retain it, if he had sufficient power ; but when men 
 entered into society, and industry, arts and sciences were intro- 
 duced, property was gained by various means, for the securing 
 whereof proj^er laws were ordained." Tomlin Law Die. 
 "Property," 2 Bl. Com., 39. 
 
 " Material objects, therefore, are property in the true sense 
 because they are impressed by the law and usage of society 
 with certain qualities, among which are, fundamentally, the 
 right of the occupant or owner to use and enjoy them exclu- 
 sively, and his absolute power to sell and dispose of them; 
 and as property consists in the artificial impression of these 
 qiialities upon material things, so whatever removes the im- 
 pression destroys the notion of projjerty, although the things 
 themselves may remain physically untouched." 
 
 If what is or what is not property depends upon the law or 
 usage of society, it would be impossible to say that the quality 
 of the exclusive right of the owner to the use or enjoyment of 
 his dog, his absolute power to sell and dispose of it, and the 
 other characteristics and attributes of property, had not been 
 - impressed by the laws and usages upon that useful animal. 
 
People v. Campbell. 303 
 
 If property is a notion of society ; if common consent is the 
 basis of or requisite to its recognition or maintenance, for 
 none of the brute creation could this principle be claimed 
 with more propriety or truth than this one. 
 
 Assuming, then, that property is something which can be 
 appropriated or donated to one's exclusive use or enjoyment; 
 something which can be sold or otherwise disposed of at will; 
 something, for a violation of our rights, in relation to which 
 the law provides adequate remedies; something which it is 
 not unlawful to hold, and which, therefore, the law is bound 
 to guard us in the possession of, the inquiry arises, how are 
 dogs looked upon or considered by the law? 
 
 In Putnam v. Payne, 13 John. E., 312, it was held that any 
 person is justified in killing a ferocious and dangerous dog, which 
 is permitted to run at large by its owner, or to escape through 
 negligent keeping, the owner having notice of its vicious dis- 
 position. The action in the court below was to recover for the 
 killing of a dog. The plaintiff had judgment ; but the supreme 
 court reversed the judgment, for the reason that, under the 
 circumstances, the dog was properly killed. There was no 
 question but what, if the dog had been improperly killed, the 
 action would have been maintainable. This case concedes that 
 there can be and is property in a dog. Whether absolute or 
 qualified is immaterial; it is enough to satisfy our statute 
 against the felonious taking of personal ^^roperty, that there 
 can be, or is any. In Hinckley v. Emerson, 4 Comst., 351, the 
 right of property in a dog was expressly recognized. It was 
 a similar action. The plaintiff, in the court below, proved the 
 value of the dog to be^en or fifteen dollars, and had judgment, 
 and the supreme court, on error, affirmed the judgment. The 
 statute, allowing dogs attacking sheep to be killed,was referred to 
 by the court as proof that but for the statute the right did not 
 exist. In Bull v. Flagler, 23 Wend., 354, which was an action 
 of trespass for killing a dog, it was held that, though under 
 proper circumstances the killing of a dog was justifiable, a 
 needless or wanton destruction of the animal, even to prevent 
 an acknowledged mischief, would be unjustifiable. 
 
 It was also held that the opinions of witnesses as to the na- 
 ture of a dog, for whose destruction an action was brought, 
 
304 Phalen's Criminal Cases. 
 
 were admissible in evidence. In Dunlap v. Snyder, 17 Barb., 
 S. C. K., 561, which was a similar action, the supreme court 
 of the fourth district did not question the right to maintain 
 an action for the improper killing of a dog. They reversed 
 the judgments of the justice and county court, among other 
 reasons, because the opinions of witnesses as to the value of 
 the dog were received in evidence, thus rejecting upon that 
 point the authority of the case of Bull v. Flagler. In Cowen'a 
 Justice, ith ed., § 663, in treating " of actions for taking, de- 
 taining or injuring personal property," it is said, the terms 
 " personal property," as used in the Code of Procedure, include 
 money, goods, chattels, things in action and evidences of debt, 
 and, with the exception of real estate, everything in which one . 
 can have a valuable interest, instancing, among other things, a 
 dog. In section 538, it is said, " A man has such an owner- 
 ship in a dog, a cat, or any wild animal, which he has acquired 
 a property in by possession, that he may recover damages for 
 any injury to it." From these authorities I conclude that, if 
 an action can be brought to rejjossess one of a dog, of which 
 he has been unlawfully deprived, or if, in case the dog has 
 been killed, an action can be brought to recover its value, and 
 if, on the trial, its value is matter of proof, as that of any other 
 admitted item of property, even though in certain extreme 
 cases the dog may legally forfeit its existence to a stranger 
 against the will of its owner, nevertheless, that there are suffi- 
 cient of the characteristics or attributes of property about it 
 to make it a subject of protection within the statute defining 
 grand larceny. In the People v. Maloney, 1 Parker Cr. P.> 
 693, it was held, for the purposes of a«\vrit.of habeas corpus, 
 that a dog was a subject of larceny. It is provided by statute, 
 3 R. S., 5th ed., 974, § 1, that a tax upon dogs shall be annu- 
 ally levied and collected in all the counties of this state, except 
 the county of J^ew York, and the statute fixes the rate of tax> 
 and the mode in which it shall be collected. It is also simi- 
 larly provided that any person may kill a dog which he shall see 
 " chasing, worrying or wounding any sheep," unless it is done 
 by the direction of the owner of the sheep, or his servant. 
 
 It is also provided that a justice of the peace may order the 
 killing of any dog that shall attack a traveler on the highway, 
 
People v. Campbell. 303 
 
 or a horse attached to a carriage, or upon which any person 
 shall be mounted ; and that any person in possession of a dog, 
 or who shall suffer it to remain about his house for the space 
 of twenty days previous to the assessment of tax, or to any 
 injury, as specified, done by the dog, shall be deemed its owner 
 for all the purposes of the statute. The statute also imposes 
 penalties where the owner refuses to kill a dog when legally 
 directed or ordered to do so. I think these statutes demon- 
 strate that the legislature meant to treat dogs as property, pro- 
 tecting and controlling them, so far as the public good or safety 
 permits or justifies. 
 
 In the year 1857 a law was passed in this state providing for 
 the " incorporation of associations for improving the breed of 
 domestic animals." It declares that any corporation formed 
 under it shall ^ have power to raise, import, purchase, keep, 
 breed and sell all kinds of domestic animals. "Why are not 
 dogs within the purview of this statute? Although not ranked 
 among domestic animals in the time of or by Lord Hale, yet 
 the estimation in which they have been since held by society 
 shows they are no longer considered to be so base as not, on 
 that acco\int, at least, to be the subject of larceny. 
 
 If by domestic is meant " belonging to the house," who can 
 deny this attribute to the dog? What animal more domestic? 
 What one appreciates a home more, shows stronger attach- 
 ments to it, or if it strays from it, is more certain to return to 
 it ? In some of its species it serves as a pet or a companion. 
 In others, it assists and takes part in manly sports and recre- 
 ation. In others, again, it is the faithful custodian and guar- 
 dian of property. In none, it may be said, is it entirely 
 divested of usefulness. When the benefits it confers are 
 refiected upon, why is there not a perfect property in im- 
 proving the breed of such an animal? If it comes within the 
 description of domestic animals under this act of 1857, it is 
 certainly property, the subject of larceny. 
 
 If the indictment in the present case should show that the 
 dog in question was "reclaimed and made tame and domestic,'' 
 and that the defendant, with a knowledge of this, stole the 
 dog, which would seem to have been necessary at the com- 
 mon law in reference to animals ferm natures, 2 East. P. C, 
 20 
 
306 Phalbn's Ceiminal Cases. 
 
 607, it cannot be sustained in its present form. Under the 
 view I entertain, this is not necessary. The indictment shows 
 that the dog was tlie property of tlie prosecutor, that it had a 
 certain value, and that it was feloniously talcen from his pos- 
 session. Whatever else must be proved on the trial can be 
 proved under these averments. 
 
 If the court receives evidence it should not, under the indict- 
 ment as drawn, the defendant can have his remedy by bill of 
 exceptions. 
 
 My judgment is that the indictment is good as one for grand 
 larceny, and judgment must be rendered for the People on 
 the demurrer, with liberty to the defendant to plead to the 
 indictment. 
 
 Judgment for plaintiff. 
 
 State v. Lymtjs. 
 (26 Ohio St., 400.) 
 Larceny. — ^At common law, a dog is not the subject of larceny. 
 
 Eex, J". The defendant was indicted at the March term, 
 1872, of the court of common pleas of Logan county, for 
 burglary. 
 
 The burglary consisted of breaking and entering a sfeble in 
 the night season with intent to steal property of value con- 
 tained therein, to wit, a dog found therein, the property of the 
 owner of the stable, of the^ralue of .twenty -five dollars. The 
 defendant moved to quash the indictment, on the ground that 
 it did not charge him with the commission of an offence which 
 was punishable by the criminal law of this state. 
 
 The court sustained the motion and ordered the defendant 
 to be discharged, holding " that there is no law authorizing the 
 
State v. Lymus. 307 
 
 indictment, and that it does not charge a crime, offence, or 
 misdemeanor." 
 
 The prosecuting attorney excepted to the ruling and decision 
 of the court, and presented a bill of exceptions, embodying 
 the indictment, motion, ruling and decision of the court, and 
 the exceptions taken thereto, which was signed and sealed by 
 the court, and made part of the record in the case. 
 
 The only question presented by the exceptions is: Is the 
 stealing of a dog a crime in this state? 
 
 The property intended to be stolen by the burglar must be 
 property of which a larceny may be committed. We have no 
 statute that, in express terms, declares a dog to be the subject 
 of larceny; but it is claimed that inasmuch as the right of 
 property in dogs is protected by civil remedies, and as a recent 
 statute of this state requires them to be listed for taxation, 
 they are property, and, therefore, properly the subject of lar- 
 ceny. "We do not think so. Neither the fact that the right of 
 property in dogs is protected in this state by civil remedies 
 nor the fact that recent legislation requires them to be listed 
 for taxation, has the effect of enlarging the operations of the 
 statutes defining and punishing larceny. 
 
 At the common law, although it was not a crime to steal a 
 dog, yet it was such an invasion of property as might amount 
 to a civil injury, and be redressed by a civil action; 2 Chit. 
 Black., 393, 394; 1 Bish. Or. Law, 1080. In describing the 
 property of which a larceny, either grand or petit, may be 
 committed, the statutes of this state use the words " goods and 
 chattels." These words at common law have a settled and well- 
 defined meaning, and, when used in statutes defining larceny 
 are to be understood as meaning such goods and cliattels as 
 were esteemed at the common law to be the subject of larceny 
 As dogs, at the common law, were held not to be the subject 
 of larceny, they are not included in the words " goods and 
 chattels," as used in the statutes referred to. 
 
 Bonds, bills, notes, etc., are goods and chattels, and yet, as 
 they were held not to be the subject of larceny at common law 
 it was deemed necessary to so enlarge the larceny statutes as to 
 declare the stealing or malicious destruction of them punish- 
 able in the same manner, and to the same extent, as the larceny 
 
308 Phalen's Ckiminal Cases. 
 
 of money, or other goods and chattels of the same value. So 
 with dogs. It will be time enough for the courts to say that a 
 dog is the subject of larceny when the law-making power of 
 the state has so declared ; " constructive crimes are odious and 
 dangerous:" Findlay v. Bean, 8 Serg. and Rawle, 571. 
 
 We are, therefore, of opinion, that the court of common 
 pleas did not err in the ruling and decision excepted to. 
 
 Exceptions overruled. 
 
 White and McIlvainb, JJ., concurred. 
 Welch, C. J., and Gilmoee, J., dissented. 
 
 KOTB. — In People v. Bradley, 4 Parker, C. R. 245, the defendant was 
 charged with the larceny of " One receipt for the payment of the sum of 
 fifteen dollars and forty-six cents, and of the value of fifteen dollars and 
 forty-six cents, which said receipt was in the words and figures following, 
 o wit : ' Buffalo, Mch. 3d, 1855. Received from Mr. E.W. Weston Fifteen ^\. 
 dollars in full for bill of lumber, and of all demands to date. (Signed) 
 Dart Brothers.' " The 3 R. 8., p. 703, § 33, is as follows : " The term per- 
 sonal property, as used in this chapter, shall be construed to mean goods, 
 chattels, effects, evidences of right in action, and all written instrument* 
 by which any pecuniary obligations, or any right or title to property, real 
 or personal, shall be created, acknowledged, transferred, increased, defeated, 
 discharged or diminished." Clinton, J., among other things said : " There is 
 nothing in the language which can be applied to a creditor's written acknow- 
 ledgment of jjayment by his debtor. Such an acknowledgment, or receipt, 
 js not an evidence of debt; no money is due thereon, nor can, in any con- 
 tingency, be collected thereon, nor is any property transferred or affected 
 thereby. But there are receipts Itnown to commerce and the law, which 
 are the subjects of larceny under our statutory definition. Svich are 'ac- 
 countable receipts,' or receipts for money to be accounted for ; receipts for 
 property in store, and ship receipts." 
 
 In State v. James, 58 N. H. 67, it was held that a printed list of names 
 was a chattel, but not a " writing containing evidence of any existing debt" 
 within the statutory definition of the subject of larceny. Its value, as a 
 statutory subject of larceny, is its market value. To be of the value of $20, 
 it must be capable of being sold for that sum, at a fairly conducted sale. 
 
 In State v. Pierson, 59 Iowa, 271, the defendant was charged with the 
 larceny of a bank check. It was Iield a suflicient allegation of value to say 
 that it was " of the value of |20.97," and that it was sufficient to describe the 
 check, as a check, or order for the payment of money, giving the signer's 
 name, owner, date, value, with time and place of payment. 
 
 In Mullaly v. People, 86 N. Y., 365, it was held that the term " personal 
 property," as used in 2 N. Y. Rev. St., 703, § 333, concerning crime and pun- 
 ishment, included dogs. 
 
11. V. Leigh. 309 
 
 In State v. Brown, 9 Baxter, (Tenn.) 53, it was held that the statutory term 
 " goods and chattels" Included dogs. 
 
 In State v. Doe, 79 Ind., 41, it was held that dogs were not the subject of 
 larceny at common law, nor under the statute of larceny as "personal 
 goods." 
 
 li. V. Leigh. 
 
 Well's Summer Assizes, 1800. 
 
 (3 East. P. C, 694.) 
 
 One who assists in taking another's goods from a fire in his presence, 
 with no intent, at the time, to steal, will not be guilty of larceny for a sub- 
 sequent conversion of them with a felonious intent. 
 
 Elizabeth Leigh was indicted at Wells assizes, in the sum- 
 mer of 1800, for stealing various articles, the property of 
 Abraham Dyer. It appeared that the prosecutor's house, con- 
 sisting of a shop, containing muslin and other articles men- 
 tioned in the indictment, was on lire, and that his neighbors 
 had in general assisted at the time in removing his goods and 
 stocks for their security. The prisoner probably had removed 
 all the articles which she was charged with having stolen. It 
 appeared that she removed some of the muslin, in the presence 
 of the prosecutor and xmder his observation, though not by 
 his desire. Upon the prosecutor's applying to her the next 
 morning, she denied that she had any of the things belonging 
 to him; whereupon he obtained a search warrant, and found 
 his property in her house, most of the articles artfully con- 
 cealed in various ways. The jury found her guilty; but it 
 was suggested that she originally took the articles with an 
 honest purpose, as her neighbors had done, and that she would 
 
310 Phalen's Ceiminal Casks. 
 
 not otherwise have taken some of them in the presence and 
 under the view of the prosecutor; and that therefore the case 
 did not amount to felony. 
 
 The jury were instructed that, whether she took them origi- 
 nally with an honest intent was a question of fact for their 
 consideration ; that it did not necessarily follow from the cir- 
 cumstances . mentioned that she took them with an honest in- 
 tent. But even if they were of that opinion, yet that her 
 afterwards hiding the goods in the various ways proved, and 
 denying that she had them, in order to convert them to her 
 own use, would still support the indictment. The jury found 
 her guilty; but said, that in their opinion, when she first took ■ 
 the goods from the shop she had no evil intention, but that 
 such evil intention came upon her afterwards. And upon ref- 
 erence to the judges in Michaelmas term, 1800, all (absent 
 Lawrence, J".) held the conviction wrong; for if the original 
 taking were not with intent to steal, the subsequent conversion 
 was no felony, but a breacli of trust. 
 
 Williams v. State. 
 
 (55 Ga., 391.) 
 
 Lakceny by Trapping. — Where the owuer, by himself or his agent, con- 
 sents to the tailing of property, and the person taking or receiving it not 
 knowing him to he such owner or agent, but believing him to be another 
 thief and confederate with himself in the supposed crime, the taking is 
 not larceny, it being done with the owner's consent. 
 
 The case is sufficiently stated in the opinion. 
 
 Bleckley, J. 1. The bill of indictment was found by the 
 grand jury, some of whom, after being drawn to serve at that 
 
Williams v. State. 311 
 
 term of tlie court, had been dropped from the general list of 
 persons qualified and liable to serve as jurors on a revision of the 
 list by the proper officer. This was made a ground of motion 
 to quash the bill. It was properly overruled for . the reason 
 that the revised list was made for the purpose of designating 
 the names from which future juries were to be drawn, and had 
 no relation whatever to the juries which had "already been 
 drawn to do duty at the next term of the court, the term at 
 which the indictment was found. Any other construction 
 would subject both the grand jury and the petit juries to a 
 process of disintegration every time a revision of the general 
 list takes place. 
 
 2. Another ground of motion to quash was, that the indict- 
 ment, upon its face, by an entry at the close of it, purported 
 to have been found at the October term, 1871. This, also, was 
 properly overruled. This entry was not an essential part of 
 the indictment, and giving that year, instead of the year 1874, 
 was evidently a clerical error. The true date appeared on the 
 minutes of the court, and was reproduced on the back of the 
 indictment. 
 
 3. The trial proceeded, and the defendant was convicted. 
 He was charged with stealing thirty pounds of seed cotton of 
 the value of $1.00. It appeared in evidence that the cot- 
 ton was on the owner's plantation, in the possession of his 
 tenant or agent. The agent, diiring the day, reported to the 
 owner that the defendant wanted to buy or get some cotton, 
 and the owner replied, " Let him have it, and I will be there 
 at the getting." That night the owner, with a party of friends 
 armed with guns, concealed themselves near the cotton house. 
 As testified by the owner, he was told, at the conversation in 
 the day by his agent, that the defendant would be there that 
 night to get the cotton. Tie also testified that, on taking his 
 position at night, he called out his agent and asked where the 
 defendant was. Being told that he was in the wood, about a 
 quarter'of a mile off, he directed the agent to go and tell him 
 to come and get the cotton. The agent went, and, after a short 
 absence, returned in company with defendant. Leaving the 
 defendant at the cotton house, within a few steps of where the 
 owner and his party lay concealed, the agent went to his dwel' 
 
312 Phalen's Oeiminal Cases. 
 
 ing ho\ise, brought out a basket of cotton, delivered it to the 
 defendant, who moved off with it, and just then the owner 
 cried "halt," and his party discharged their guns in the air; 
 the defendant dropped the basket, ran off in the darkness, and 
 made his escape. The court charged the jury, in substance, 
 that if the defendant and his associate in the transaction (the 
 owner's agent) united in a common intent to steal the cotton, 
 combined and confederating for that purpose, in executing the 
 common intent, and one of them did the actual taking and 
 carrying, they were both guilty. Also, that if the agent had 
 no intent to steal, but the j^defendant believed he had, and so 
 combined and confederated ;with him to steal, and the agent 
 handed him the cotton, and he took it and removed it any dis- 
 tance whatever, he was guilty. There is no evidence in the 
 record upon which to charge the defendant with any taking 
 and carrying away done by his supposed accomplice. The 
 evidence is clear that the person was in mental and moral con- 
 cert with the owner, not with the accused. It is incredible 
 that he was engaged in stealing during this transaction. There 
 was no guilty taking or carrying done by him, and it was error 
 for the court to make any charge based on that hyjDothesis. 
 The defendant is responsible alone for such taking and carry- 
 ing away as were done by himself. According to the evi- 
 dence, the acts of the counterfeit accomplice proceeded from 
 the joint will of himself and the accused. He, with the 
 owner, was running on the line of detection and arrest. The 
 accused had a supposed ally, but not a real one ; he was run- 
 ning by himself, on the line of guilt and impunity. His pre- 
 tended accomplice, being a person of sound memory and dis- 
 cretion, could do no act which would render the defendant 
 guilty, for the former was making no effort to become guilty 
 himself. lie was, in fact, only a detective, not a thief. 
 
 4. The second proposition of the charges is equally erro- 
 neous when applied to the facts of this case. The evidence is 
 clear and uncontradicted, tliat the cotton was delivered by the 
 •owner's agent. As testified by the latter, the owner said 
 during the day, " Let him have it, and I will be there at the 
 getting." As testified by the owner himself, he said, at night, 
 "(iloand tell him to cmne and <>'et the cotton." Eitlier of 
 
"Williams v. State. , 313 
 
 these expressions might, without much strain, he construed into 
 a direction on the part of the owner to deliver the cotton, and 
 it was in fact delivered.. There was no trespass committed in 
 the taking. There was no taking without the owner's consent. 
 True, the consent was given for a purpose quite aside from any 
 design to part with the property; hut, if given at all, and the 
 intended larceny was cut ofE as soon as the owner coiild, after 
 delivery, cry, halt, and fire off the guns, \vhat taking was there 
 which could, with any truth, be said to he without his consent? 
 If the property was delivered by the owner's direction, and 
 with his consent, it can make no difference, legally, although 
 it does morally, that the accused did not know of such direc- 
 tion and consent. Suppo.se the owner, instead of acting by 
 his agent, had acted in person, and delivered the cotton from 
 his own hands, the defendant, not knowing him to be the 
 owner, but believing him to be another thief and a confederate 
 with himself in the supposed larceny, would not an essential 
 element of legal larceny be wanting'^ 
 
 5. But were it even granted that the agent made delivery on 
 his own motion, without the owner's consent, there was too 
 much active participation by these two persons in this trans- 
 action for it to amount to larceny on the part of the accused. 
 It seems to be settled law that traps may be set to catch the 
 guilty, and the business of trapping has, with the sanction of 
 courts, been carried pretty far. Opportunity to commit crime 
 may, by design, be rendered the most complete, and if the 
 accused embrace it he will still be criminal. Proj)erty may be 
 left exposed for the express purjjose that a suspected thief 
 may commit himself by stealing it. The owner is not bound 
 to take any measures for security. lie may i-epose upon the 
 law alone, and the law will not inquire into his motive for 
 trusting it. But can the owner directly, through his agent, 
 solicit the suspected party to come forward and commit the 
 criminal act, and then complain of it as a crime, especially 
 where the agent, to whom he has entrusted the conduct of the 
 transaction, puts his own hand into the corpus delicti, and 
 assists the accused to perform one or more of the acts neces- 
 sary to constitute the offence? ShouU not the owner and his 
 agent, after making everything ready and easy, wait passively 
 
314 Phalen's Ceiminal Cases. 
 
 and let the would-be criminal perpetrate the offence for him- 
 self in each and every essential part of it? It would seem to 
 us that this is the safe law, as well as the sounder morality, 
 and we think it accords with the authorities : 2 Leach, 913 ; 
 2 East P. C, ch. 16, sec. 101, p. 666; 1 Car. & Mar., 218; 
 Meigs, 86; 11 Humph., 320; Baily, 569. 
 
 It is difficalt to see how a man may solicit another to com- 
 mit a crime upon his property, and when the act to which he 
 was invited has been done, be heard to say that he did not 
 consent to it. In the present case, but for the owner's iilcite- 
 ment, through his agent, the accused may have repented of the 
 contemplated wickedness before it had developed into act. It 
 may have stopped at sin without putting on the body of crime. 
 To stimulate unlawful intentions, with the motive of bringing 
 them to punishable maturity, is a dangerous practice. Much 
 better is it to wait and see if they will not expire. Humanity 
 is weak ; even strong men are sometimes unprepared to cope 
 with temptations and resist encouragement to evil_. 
 
 Let the judgment be reversed. 
 
 Martinez v. State. 
 
 (41 Texas, 126.) 
 
 Larceny from House. — Stealing goods hanging outside of a store, on a 
 piece of wood nailed to tlie door, is not larceny from a house. 
 
 Case sufficiently stated in the opinion. 
 
 Reeves, A. J. The only question in this case is presented 
 in the brief for the state: '• Is an indictment for theft from a 
 house, sustained by proof that the stolen property was taken 
 while hanging at and outside of the store door on a piece of 
 
Martinez v. State. -315 
 
 wood nailed to the door, facing and projecting towards the 
 street." 
 
 Burglary at common law is an offence against the security 
 of the habitation, the protection of the property being an in- 
 cident, not the leading-object. 
 
 The precinct of the dwelling, the place where the occupier 
 and his family reside, include only such buildings as were used 
 with an appurtenant to it, and these only were the subject of 
 burglary at common law, and to constitute the offence there 
 must have been an actual or constructive breaking and entry 
 into the house. 
 
 The English definition of burglary has been modified by 
 statute in this and in other states, so as to include offences 
 committed in the daytime as well as in the night, under cer- 
 tain circumstances, and in other buildings than the dwelling 
 house. The idea of regarding the house as a place of security 
 for the occupants, and a place of deposit for his goods, under- 
 lies all these statutes. By our code, burglary is constituted by 
 entering a house by force, threats, or fraud at night, or, in like 
 manner, by entering a house during the day and remaining 
 concealed therein until night, with the intent in either case of 
 committing a felony: Pas. Dig., art. 2369. It is not neces- 
 sary that there should be any actual breaking, excej)t when the 
 entry is made in daytime. Arts. 2360, 2361. 
 
 The code provides different degrees of punishment for theft 
 without regard to place. The article under which the defend- 
 ant was indicted is as follows: "If any person shall steal 
 property from a house in such a manner as that the offence 
 does not come within the definition of burglary, he shall be 
 punished by confinement in the penitentiary not less than two 
 nor more than seven years." Art. 2408. Where the house 
 entered is a dwelling house, the punishment for burglary is 
 imprisonment in the penitentiary not less than three nor more 
 than ten years. Where the house entered is not a dwelling 
 house, the punishment is not less than two nor more than five 
 years. In these cases the punishment is greater than that for 
 theft in general, as defined by the code, where the property is 
 under the value of twenty dollars. 
 
 We are of opinion that the goods were not under the j)ro- 
 
316 L'halen's Ceiminal Cases. 
 
 tection of the house, so as to make the taking theft from a 
 house in the meaning of the statute, and that the defendant 
 was only liable to the punishment prescribed for simple theft. 
 
 The goods were not deposited in the house for safe custody, 
 but the witness says they were hanging out to attract cus- 
 tomers or purchasers. 
 
 The statutes of the states cited in the brief of counsel, in 
 general, punish theft in a house, while other statutes referred 
 to punish theft from a house as does our code, and they seem 
 to use these terms as meaning the same thing. A different 
 rule would not admit of any definite application. 
 
 A construction that would make the stealing of goods while 
 exposed on the street, and not in the house, the same offence 
 as stealing from the house, would be to lose sight of the dis- 
 tinction between different offences and the different grades of 
 punishment, and would introduce a latitude of construction 
 too uncertain to be followed in the administration of the 
 criminal law. 
 
 The judgment is reversed and case remanded. 
 
 Reversed and remanded. 
 
 E. V. Haeeison. 
 
 (3 East P. C, 559.) 
 
 Larceny. — A person, taking property' with, tlie consent of tlie wife of 
 the owner, will not be guilty of larceny. 
 
 [tfathaniel Harrison was indicted for stealing some plate, 
 and it appearing that the prosecutor's wife had the constant 
 keeping of the key of the closet where the plate was usually 
 locked up, and that the prisoner could not have taken it with- 
 
Reg. v. Haeeison. 317 
 
 out her privity and consent (which appeared probable from 
 other circumstances, although no direct evidence of the fact could 
 be produced), the court thinking that it might be presumed that 
 he had received it from her, directed him to be acquitted,, 
 which was accordingly done. 
 
 Reg. v. PIaeeison. 
 (12 Cox C. C, 19.) 
 
 Labcent. — If a wife goes away with a man for the purpose of commit- 
 ting adultery, and takes with her her husband's property, and the adulterer 
 either sell it or use it as his own, he will be guilty of larceny. 
 
 James Plarrison was indicted for stealing one pony, cart and 
 harness, on the 7th of November, 1870, the property of Charles 
 Patrick. 
 
 Cooper, for the prosecution. 
 
 Reeve, for the prisoner. 
 
 Sarah Patrick, the wife of the prosecutor, deposed that on 
 the 7th of November, 1870, she left her husband's home, 
 taking the pony, cart and harness to drive and see her son, who 
 was at a boarding school at Lynn. She knew the prisoner, 
 and had arranged to meet him at Clench Walton, overtook 
 him on the road, and subsequently went to Swaffham, where 
 she spent the night in his company; went with him to East 
 Derham, and afterwards to Norwich, where the prisoner sold 
 the pony, cart and harness, without her consent or knowledge; 
 she took the money and put it in her purse. 
 
 By Reeve: I knew the prisoner had pawned his watch for 
 iJl, and that we owed money for lodging. When the pony 
 
318 PfiAiEif's Criminal Cases. 
 
 and cart were sold, I gave the prisoner £1 out of the price to 
 get his watch out of pawn, and that was all he had of the 
 proceeds. 
 
 Samuel Greengrass proved that the prisoner offered the pony 
 and cart for sale for £10, in the presence of the prosecutor's 
 wife. 
 
 John Bere proved that he purchased the pony, cart and har- 
 ness of the prisoner for £8 8s. The prosecutor's wife was not 
 present, but he paid the money to her, and she did not object 
 to the sale. 
 
 Keeve submitted that there was no case; the prisoner was 
 only acting as the agent of the woman, and received no 
 part of the proceeds except a. sovereign, which he had ex- 
 pended. 
 
 Lush, J., summing up the case to the jury, said: If you 
 are satisfied that the prisoner knew, at the time he disposed of 
 these articles, that they were the property of the woman's hus- 
 ba^nd, then you must find him guilty. So long as a wife is 
 living properly with her husband, if she give away his prop- 
 erty, or sells it under ordinary circumstances, it would not be 
 larceny ; but if a wife goes away with a man for the purpose 
 of committing adultery, and takes with her her husband's 
 property, and the adulterer either sells it or uses it as his own, 
 he will be guilty of larceny. In this case it was not clear that 
 the prisoner knew at the time of the elopement that the wife 
 had taken, or was about to take, her husband's cart; and if it 
 had not been subsequently sold, there might have been a diffi- 
 culty in the case. But was there any doubt that when the cart 
 was sold the prisoner knew he was dealing with the husband's 
 property? It had been said that the prisoner did not receive 
 the proceeds ; that the woman was obliged to sell it to provide 
 herself with necessaries. But she had no authority then to 
 deal with her husband's property, as she had not been turned 
 away from home by him ; the contention that the prisoner was 
 merely acting'as the agent of the woman would not be suflacient, 
 as it appeared that in her absence he negotiated the sale and 
 received part of the proceeds for defraying the expenses that 
 
Stevens v. The State. ■ 319 
 
 he and the woman had incurred while living in a state of 
 adultery. 
 Guilty. 
 
 Note. — For further discussion of the question, how far a wife is liable 
 for stealing the goods of her husband, and how far an adulterer may be 
 guilty who aids and abets her, see State v. Banks, 48 lud., 197 ; People v. 
 Schyler, 6 Cowen, 572; Eegina v. Peatherstone, 26 Eng. L. & Eq. Rep., 570. 
 
 Stevens v. The State. 
 (44 Ind., 469.) 
 
 Labcbkt. — Where the property stolen belongs to the wife of the alleged 
 owner, there can be no conviction. 
 
 Pettet, J. This was an indictment against the appellant 
 for larceny, charging her with stealing a shawl, the property 
 of Clarence Eoherts. 
 
 There was a verdict of guilty. A motion for a new trial, 
 for the reason that the verdict is contrary to the evidence, was 
 overruled, and an exception taken. The evidence clearly and 
 unmistakably shows that the shawl was the property of Florence 
 Koberts, wife of Clarence Eoberts, and was given to her by 
 her mother after marriage. When the law was that a husband 
 owned all the personal property of his wife, this evidence, pos- 
 sibly, might have sustained the verdict, but under our statute 
 and the rulings of this court, it cannot. Acts 1863, p. 57, sec. 
 5; 1 G. &.H., 295, note 2; Scott v. Scott, 13 Ind., 225; Wil- 
 kins V. Miller, 9 Ind., 100; Martindale v. Tibbetts, 16 Ind., 200. 
 
 The judgment is reversed, with instructions to the court 
 below to sustain the motion for a new trial. The clerk will 
 certify this opinion at once. 
 
320 Phalen's Criminal Cases. 
 
 Note. — In Pratt v. State, 35 Ohio St., 514, it was Iield tliat under a statute- 
 making articles of clotliing purcliased by a wife witli lier separate means 
 her own property, a conviction for larceny thereof could not be maintained 
 under an indictment laying the property in her husband. 
 
 If a wife be guilty of larceny in company with her husband, both of 
 them may be indicted ; and if the husband be convicted, the wife should 
 be acquitted. But if the husband be acquitted, and it appears that the fel- 
 ony was by her own voluntary acts (by which must be understood that the 
 husband, if present, had no knowledge of or participation in the fact), she 
 may upon the same indictment be convicted ; for the charge is joint and 
 several : 2 East P. C, 5.59. 
 
 In Quinlan v. People, 6 Parker C. R., 9, the defendant, Rosana Quinlan, 
 together with her husband, was indicted for robberj'. Leok.4ed, J., said: 
 " If both were together, and nothing appeared to the contrary, the presump- 
 tion would be that the ■ndfe acted under 'coercion, and she would then be 
 entitled to an acquittal." 
 
 In Com. V. Wood, 97 Mass., 225, the defendant was indicted for keeping 
 a tenement used as a house of ill-fame, resorted to for prostitution and 
 lewdness. At the trial it was shown that the house belonged to the defen- 
 dant's wife as her separate property ; that she lived there and carried on 
 the business, and that the defendant did not participate in the profits. For 
 the prisoner it was contended that the tenement was owned by the wife as 
 her separate property, and that the keeping a house of ill-fame is an offence 
 peculiar to the female sex, and therefore an exception to the general rule 
 that the wife, when committing offences in the presence of her husband, is 
 supposed to act under Ms coercion. Chapman, .J., among other things, said : 
 " The provisions of the statutes relate to legitimate business, and not to the 
 keeping of brothels. They do not take away his power to regulate his 
 household so far as to prevent his wife from committing this offence, or 
 relieve him from respon.sibility if it is committed." 
 
 The rule exempting a wife from punishment for crime committed in the 
 presence of her husband has been held to extend to all classes of crime. 
 See R. V. Smith, 8 Cox 0. C, 37; R. v. Wardroper, 8 Cox C. C, 384; Miller 
 v. State, 25 Wis., 384. See also State v. Banks, 48 Ind., 197 ; Davis v. The 
 State, 15 Ohio Rep., 72; Com. v. Lewis, 1 Met., 151 ; 1 Wharton Crim. Law, 
 § 1025, 1256 & 1258; 1 Arch. p. 39-44; 1 Russell on Crimes, 18; Barb. Cr. 
 Law, 276. 
 
 Section 288 of the Illinois Crim. Code, Rev. St. 1881 (Cothran's Ann. Ed.), 
 p. 508, enacts that " A married woman acting under the threats, commands, 
 or coercion of her husband, shall not be found guilty of any crime or mis- 
 demeanor not punishable with death ; provided, it appear, from all the facts 
 and circumstances of the case, that violent threats, commands or coercion 
 were made ; and in such case the husband shall be prosecuted as principal, 
 and receive the punishment which would otherwise have been inflicted on 
 the wife if she had been found guilty." 
 
lloBBEKV. '621 
 
 EOBBEKY. 
 
 Robbery is defined to be " the felonious taking of money or 
 goods, to any value, from the person of another, or in his pres- 
 ence, against his will, by violence, or putting him in fear." (a) 
 
 The property need not be taken from the immediate person 
 of the owner ; it is sufficient if it be taken in his presence. 
 
 If the intent be to steal, and the possession be obtained by 
 force and violence from the person of the owner or in his 
 presence, it amounts to robbery. But a mere sudden taking 
 of a thing unawares from the person as by snatching a thing 
 from the hand or head is not sufficient to constitute a robbery, 
 unless some injury be done to the person, or unless there be 
 some previous struggle for the possession of the property, (b) 
 
 Eobbery may be committed by putting in fear as well as by 
 force. It is not necessary that actual fear should be charged 
 or strictly proved, provided the property be taken with such 
 circumstances of violence or terror, or threatening by word or 
 gesture, as would in common experience induce a man to part 
 with it from an apprehension of personal danger; for the law, 
 in ordium sj>oliator{s, will presume fear where there appears to 
 be so reasonable a ground for it. 
 
 So a colorable gift, which in truth was extorted by fear, 
 amounts to a taking and trespass in law and constitutes rob- 
 bery, and this, though the thing obtained was not originally 
 in the contemplation of the robber, but received as the price 
 of desisting from a felonious attempt of another kind, (c) 
 
 (a) 2 East P. C, 707. (6) E. v. Lapier, Post., 332. 
 
 (c) 2 East P. C, 711. McCloskey v. People, 323. 
 
 21 
 
?>23 Phalen's Crimtnat. Oasks. 
 
 K. V. Lapier. 
 
 O. B., May, 1874, MS. 
 
 {2 East, 557.) 
 
 ROBBBBY. — A momentary possession, though lost again in the same in- 
 stant, is a sufficient talcing. 
 
 James Lapier was convicted of robbing Mrs. Hobart on the 
 highway, and taking from her person a diamond ear-ring. The 
 fact was, that as Mrs. H. was coming out of the opera house, 
 she felt the prisoner snatch at her ear-ring and tear it from her 
 ear, which bled, and she was much hurt; but the ear-ring fell 
 into her hair, where it was found after she returned home. 
 Judgment being respited for the opinion of the judges, whether 
 this were such a taking from the person as to constitute rob- 
 bery; they were all of opinion that it was. It being in the 
 possession of the prisoner for a moment, separated from the 
 lady's person, was sufficient, although he could not retain it, 
 but probably lost it again the same instant, and it was taken 
 by violence. 
 
 Note. — If the thief once take possession of the thing the oflence is com- 
 plete, though he afterward return it. As if a robber finding little in a purse 
 which he had taken from the owner, restored it to him again, or let it fall 
 in struggling, and never take it up again, having once had possession of it. 
 2 East P. C, 557. 
 
 In Petis' case, 0. B. 1781, 3 East P. C, 557, defendant, having robbed Mr. 
 Downe of his purse, returned it again, saying, " If you value your purse, 
 take it back again, and give me the contents ;" but before Mr. B. could do 
 
McCloskby v. Tpie People. 323 
 
 tHis, his servant secured the robber. The offence was ruled to be complete 
 by the first taking. 
 
 In the case of Edward Farrel, 3 East P. C, 557, Farrel, upon an indict- 
 ment for robbery, was found to have stopped the prosecutor as he was car- 
 rying a feather-bed on his shoulders, and told him to lay it down or he would 
 shoot him, on which the prosecutor laid the bed on the ground ; but before 
 the prisoner could take it up so as to remove it from the spot w^here it lay, he 
 was apprehended. The judges were of opinion that the offence was not 
 completed, and the prisoner was discharged. 
 
 McCloskey v. The People. 
 
 (5 Parker C. R., 399.; 
 
 BoBBEKT. — The violence must be sufficient to force the person to part 
 with his property, not only against his will, but in spite of his resistance. 
 
 The plaintiff in error was convicted for robbery, in taking 
 violently from the person of Halsey F. Wing four pieces of 
 silver coin of ■ tbe valne of one dollar, and one hat of the value 
 of four dollars. 
 
 Emott, J. The Revised Statutes define robbery in the first 
 degree to consist in feloniously taking personal property of 
 another from his person or in his presence against his will, by 
 violence to his person, or by putting such person in fear of 
 immediate injury to his person. 2 R. S., 677, § 56. The 
 common law definition of robbery was the same: 4 Bl. Com., 
 243; 1 Hale PI., vol. 1, ch. 46; 2 East Cr. Law, ch. 16, § 124, 
 seq. The mere snatching anything from the hand or the per- 
 son of any one, without any struggle or resistance by the 
 owner, or any force or violence on the part of the thief, will 
 not constitute robbery. 
 . In Goscoigne's case. Leach, 313; East Or. Law, vol. 2, p. 
 709, the prisoner snatched some money out of the pocket of a 
 
324 Phalbn's Cbiminal Cases. 
 
 woman whom he was conveying to prison on a criminal charge. 
 The prisoner was not a constable, but attended the police office 
 as a runner. He was convicted of robbery, and the conviction 
 was sustained on the ground, which was proved, that he had 
 violently forced the woman into a coach and handcuffed her, 
 with the felonious intent of getting her money, and the direc- 
 tion to the jury at the trial put the case upon this exclusively. 
 The cases which are often cited of taking an ear-ring, which 
 was held to be a robbery when it was taken with such violence 
 as to lacerate the ear of the wearer (a), or a diamond hair or- 
 nament tearing out with it a part of a lady's hair from her 
 head, are illustrations of the rule as to the degree of violence 
 necessary to constitute the offence of robbery. Leach, 238. 
 
 The court below, in the present case, instructed the jury in 
 effect that feloniously taking another's property with violence, 
 sufficient to constitute an assault and battery, would make out 
 the crime of robbery ; and again, that if they believed the 
 story of the principal witness, the offence was made out. 
 
 In these instructions the judge was in error. In the cases- 
 to which I have referred, as well as in many others to be found 
 in the books, the snatching the property was sufficient to con- 
 stitute an assault and battery, yet that alone did not make the 
 felonious taking more than a larceny. The property must be 
 taken by violence to the person, which means more than a 
 simple assault and battery. The violence must be sufficient to 
 force the person to part with his property, not only against his 
 will, but in spite of his resistance. The rule of law laid down 
 by the court below went further than the authorities justify, 
 and the application of the rule to the facts was also incorrect. 
 
 The proof showed that the prisoner took the monev which 
 he stole out of the prosecutor's pocket, while they were walking 
 together in a friendly manner. 
 
 No more force was used than sufficient to pull the money 
 out of the pocket of the witness. 
 
 Both the men had been drinking, and the prosecutor, at the 
 time of the act, evidently considered and treated the prisoner's 
 condiict as a jok?. He made no resistance, and yielded neither 
 
 (■■) \i. V. Lapior, Anto p. "•:;2. 
 
IJkall \'. Statk. 325 
 
 to force or fear. If he was led to entertain the idea that the 
 prisoner intended to rob him, or to any fear or apprehension 
 of violence or injury from him, it was not, as he himself states, 
 until after this offence was committed. 
 
 Under these circumstances, the violence to the person in 
 taking the property, which is the essential element of robbery, 
 was wanting, and the prisoner's offence was simply a larceny. 
 
 The judgment of the court of sessions must be reversed and 
 a new trial ordered. 
 
 Beall v. State. 
 
 (53 Ala., 460.) 
 
 BuRGLARy. — The indictment was for burglary, averring a breaking and 
 entry, " of the dwelling-house of the late John Tate, said house now, and 
 at the time of the oflence committed, belonging to the estate of the late 
 John Tate." Held, insufficient in not stating the name of the owner of the 
 house. 
 
 The case is sufficiently stated in the opinion. 
 
 Beickell, C. J. The indictment is for burglary, averring 
 a breaking and entry, in the first count " of the dwelling-house 
 of the late John Tate, said house now, and at the time of the 
 offence committed, belonging to the estate of the late John 
 Tate;" and in the second count, it is averred to have been " the 
 dwelling-house of the estate of the late John Tate." The 
 common law requires that an indictment for burglary must 
 lay with precision the ownership of the house in which the 
 offence has been committed, and the proof must conform to 
 the averment; 2 Lead. Cr. Cases, 63; 2 Bish. Cr. P., sees. 135- 
 
326 Phalen's Obiminal Cases. 
 
 6-7-8; 2 "Whart Am. Cr. Law, sec. 1555, et seq.; 1 Euss. Grim., 
 806. The statutes have not abrogated or modified the rule; 
 on the contrary, the form of indictment prescribed contains an 
 express averment of ownership: K. C, p. 811, form No. 35, 
 
 There is no averment of ownership in either count of this 
 indictment. That which is intended as such an averment shows 
 on its face that the ownership is not disclosed. If the person 
 described as John Tate is dead, and that is the intendment, and 
 during life was the owner of the dwelling, on his death it de- 
 volved on his personal representatives, heirs or devisees. Who 
 these are is not averred. In Pleasant v. State, 17 Ala., 190, 
 the indictment described the defendant as a slave, " the prop- 
 erty of the late "William Copeland." Dargan, C. J., said: 
 " Is the ownership of the accused sufficiently averred? The 
 allegation is that Pleasant, a slave, ' the property of the late 
 William Copeland.' In the sense in which the adjective late 
 is here used, it means existing not long ago, but now departed 
 this life. This is the meaning all would give it, and no doubt is 
 the meaning intended to be attached to it by the pleader. The 
 accused is, therefore, alleged to be the property of one not in 
 life. This cannot be, for the dead can own no property. Death 
 strips us of all rights and title to property, and casts them on 
 the living, who alone can own property. The ownership of 
 the accused is therefore, not alleged, and the indictment is, 
 consequently defective." It must be observed of -this case, 
 that the ownership of the accused, nor his status, was an in- 
 gredient of the offence with which he was charged. The only 
 purpose of its averment was that in the event of convjction, it 
 should be ascertained to whom the state must make compensa- 
 tion for the loss of property on his execution. The house bro- 
 ken and entered must not be the house of the accused, in which 
 he had the lawful right of entry. The ownership is as essen- 
 tial as the ownership of goods on an indictment for larceny, or 
 on any other indictment for an offence against property. 
 
 It is a well known rule of criminal pleading, that when it 
 becomes necessary to aver the ownership of property which 
 resided in one dead, while living, if it is personal property; 
 passing to the personal representative of which he has custody, 
 actually or constructively, the ownership must be laid in him. 
 
^. Beall v. Statk. 327 
 
 If real property, then in theheiror devisee; and it is generally 
 sufficient to aver it in the actual possessor. An illustration, 
 which clings to the memory of the lawyer, is given by Lord 
 Hale : " If A. dying, be buried, and B. opens the grave in the 
 night time and steals the winding sheet, the indictment cannot 
 suppose them the goods of the dead man, but of the executor, 
 administrators, or ordinary, as the case falls out;" :2 Hale's 
 Pleas Cr., 181. The indictment was insufficient, and the con- 
 viction erroneous. For aught that appears on the face of the 
 indictment, the accused may have been the owner of the dwell- 
 ing-house. He may have been the heir, or divisee, or the per- 
 sonal representative of the deceased, having its possession, and 
 the lawful right of entry. Such a presumption is not excluded 
 by the averments. The case of Anderson v. The State, 48- 
 Ala., 665, and Murray & Bell v. The State, ib., 675, it may be. 
 induced the framing of the indictment in its present form. 
 These cases cannot be supposed on principle or precedent, and 
 are introductive of a laxity in criminal pleading that ought not 
 to be tolerated, and are consequently overruled. 
 
 The judgment is reversed and the cause remanded, but the' 
 prisoner will remain in custody until discharged by due course 
 of law. 
 
 As to the ownership of property of a deceased person. See^ State v. 
 Dopeke, Ante p. 257. 
 
328 Phalen's Criminal Casi-b. 
 
 Waters v. State. 
 
 (53 (Ja., 567.) 
 
 BnnGLART. — When one is prosecuted for burglary in the night, the testi- 
 mony should be such, as to the time when it was committed, as to exclude 
 all reasonable doubt upon that point. 
 
 Teipp, J. 1. The proposition is unquestioned, that in all 
 criminal prosecutions, it is incumbent on the state, on the tra- 
 verse trial, to show affirmatively, either by positive testimony 
 or other satisfactory evidence, that the defendant is guilty of 
 the offence charged against him, or of some less crime which 
 the law permits him to be found guilty of under the indict- 
 ment. This rule applies to an indictment for burglary in the 
 night. It was but a few years ago that this offence was pun- 
 ishable with death, or, by special recommendation of the jury, 
 by imprisonment for life, whilst the penalty for burglary in the 
 ■day was imprisonment from three to five years. Eev. Code, sees. 
 4321, 4322. Now the penalty for the former is imprisonment 
 from five to twenty years; for the latter it is unchanged. 
 "Would it be going too far to say that when one is prosecuted for 
 burglary in the night, the testimony shoTild be such as to the 
 time when it was committed, as to exclude all reasonable doubt 
 upon that point, before a verdict of guilty could be authorized? 
 If there had been no change in the penalty, and that was yet 
 a capital one, the rule would scarcely be doubted. As it is, 
 the maximum for one grade is twenty years in the penitentiary; 
 for the other, five years. 
 
 2. Where the evidence leaves the time in which the offence 
 
Watkbs v. Statu. 329 
 
 ■was committed exactly balanced between day and night, that 
 is, that it was committed within the period of about forty or 
 forty-five minutes, one-half of which was day and one-half 
 was night, the defendant should have the benefit of the doubt 
 necessarily arising, and the conviction should not be for the 
 highest grade. If a jury reasonably doubt whether a defen- 
 dant be guilty of murder or manslaughter, that doubt is re- 
 solved in favor of life. So, if the doubt be as to different 
 grades of manslaughter, the defendant should have the bene- 
 fit of it, and the lowest grade covered by the doubt is 
 to be found. It would be difficult to limit the applica- 
 tion of this principle and we think it should control 
 this case. The chief evidence against this defendant was the 
 fact that he was in possession of the watch, which was taken 
 from the house several days after the burglary was committed. 
 I will not remark upon the character of such testimony, whether 
 it is always sufficient to convict, for the authorities are some- 
 what in conflict; but we say, that, under the proof in this case, 
 we think the defendant should have the full benefit of the first 
 rule we announce in this case. 
 Judgment reversed. 
 
 Note. — In Jones v. The People, 6 Parker's C. R., 136, tlie burglary was 
 committed on the night of the 15th of April. On the 20th of the same 
 month the stolen property was found In possession of the prisoner, who 
 lived in the same village, and the supreme court held that the unexplained 
 possession of the property was sufficient to sustain a conviction for burglary 
 and grand larceny. 
 
 In State v. McDonald, 73 N. C, 346, the defendant was convicted of bur- 
 glary in the night time, and the only evidence as to the time the burglary 
 was committed was that of Green, the prosecutor, who testified : that on 
 the morning of August 13th he discovered, between da3'light and sunrise, 
 that his house had been broken into, and this was held sufficient evidence 
 to justify a conviction for burglary in the night time. 
 
 For a complete line of authorities upon the subject of burglary at common 
 law, and as modified by statute, see 3 Arch Grim. Prac. & P., p. 1069, 1113; 
 2 "Wharton Grim. Law (7th ed.), § 1533, 1618. 
 
330 PuAiEN's Criminal Cases. 
 
 FALSE PRETENSES. 
 
 This offence is defined by Ilawliins as " the deceitful practices 
 in defrauding or endeavoring to defraud another of his known 
 rights by means of some artful device contrary to the plain 
 rules of common honesty." Mr. East, doubting the sufficiency 
 and accuracy of this definition of the offence at common law, 
 defined it as being " the fraudulent obtaining the property of 
 another by any deceitful and illegal practices or token (short 
 of felony) which affected or may affect the public." 
 
 Every species of fraud or dishonesty between individuals was 
 not the subject of a criminal charge at common law; to make 
 it such it was necessary that the cheat or fraud affected the 
 public, and deceived the people in general, such as were effected 
 by means of false tokens, and it was necessary that such tokens 
 were calculated to defraud numbers, and to deceive the people 
 in general, something against which ordinary prudence was 
 not sufficient to guard, as false weights or measures, {a) 
 
 (o) 3 East P. C, 817, 
 
It. V. Whkatly. 331 
 
 R. V. Wheatlt. 
 
 (1 Hale, 506.) 
 
 Cheats at Common Law. — Fraud to be the subject of criminal prose- 
 cution, at common law, must be the kind which in its nature is calculated 
 to defraud numbers. 
 
 Wheatly, a brewer, was indicted at common law, for that he, 
 intending to deceive and defraud E.. "W". of his money, falsely, 
 frudulently and deceitfully sold and delivered to him 16 gal- 
 lons of amber for and as 18 gallons of the same liquor, and 
 received 15s. as for the 18 gallons, knowing there were only 
 1*6 gallons. This the court were clearly of opinion was not an 
 indictable offence, but only a civil injury for which an action 
 lay to recover damages. 
 
 Lord Mansfield, C. J., said: " It amounts only to an unfair 
 dealing, and an imposition on this particular man by which he 
 could not have suffered but from his own carelessness in not 
 measuring it; whereas, fraud to be the subject of criminal 
 prosecution must be of that kind which in its nature is calcu- 
 lated to defraud numbers, as false weights or false measures, 
 false tokens, or where there is a conspiracy." 
 
332 I'halkn's (Jkfminal Oasks. 
 
 Rex v. Laea. 
 
 (6 Terms Rep., 565.) 
 
 Cheats at Common Law. — Making use of an apparent token, which in 
 reality is, upon the very face of it, of no more credit than his own assertion, 
 does not change the rule. 
 
 Lara was indicted at common law, for deceitfully intending 
 by crafty means and device to obtain possession of certain 
 lottery tickets, the property of A., pretending that he wanted 
 to purchase them for a valuable consideration, and delivered to 
 A. a fictitious order for payment of money subscribed by him , 
 Lara, etc., purporting to be a draft upon his bank for the amoui'; 
 which he knew he had no authority to draw, and that it wouM 
 not be paid; but which he falsely pretended to be a good ordsc, 
 and that he had money in the banker's hands, and that it wou! a 
 be paid; by which he obtained possession of the tickets, and 
 defraud the prosecutor of the value. Judgment was arrested, 
 on the ground that the defendant was not charged with having 
 used any false token to accomplish the deceit; for the banker's 
 check drawn by the defendant himself entitled him to no mors 
 credit than his bare assertion that the money would be paid. 
 
The Peoplk v. Uaynks. 333. 
 
 The People v. Haynes. 
 (14 Wendell, 446.) 
 
 False Pretenses. — Where goods are delivered to a common carrier 
 upon the order of a purchaser, they are in his possession, and any false repre- 
 sentation in respect to his ability to pay, made by the purchaser after such 
 delivery, are not within the statute. And the fact that the vendor had re- 
 ceived information inducing him to suspect the solvency of the purchaser, 
 and would have reclaimed the goods, were it not for the false pretense does 
 not change the rule. 
 
 All the false pretenses alleged need not be proved in order to convict. 
 
 A mere falsehood in not a false pretense within the statute. 
 
 The case is sufficiently stated in the opinion of the court. 
 
 By the Chanoellok. We are called upon in this case to 
 review a decision of the supreme court, upon a hill of excep- 
 tions taken on the trial of the plaintiff in error, upon an in- 
 dictment for obtaining goods by false pretenses. No bill of" 
 exceptions can be taken in a criminal case, to authorize a su- 
 perior court to correct an erroneous opinion of the court below, 
 or the decision of a jury, upon matters of fact merely. The 
 recent provision of the revised statutes only authorizes the de- 
 fendant, on the trial of an indictment, to except to decisions of 
 the court in the same cases, and in the manner provided by 
 law in civil cases, 2 K. S. 736, § 21; and it is well settled in 
 civil cases, that the charge of the court or the decision of the 
 jury, upon matters of fact, cannot be reviewed on a bill of ex- 
 ceptions, where there has been no erroneous decision of the 
 court upon matters of law. The remedy of the party who is 
 injured by a misdirection of the court, or an erroneous verdict 
 of I ; I ■ ■ '1 ) I 1 '1 ' • ' 1 I ';""'',; if f i."\ ; ^ '» ^v^ 'ri->l'CT.tion for 
 
334 Phalen's Criminal Cases. 
 
 a new trial, and not by writ of error. Graham v. Commann, 
 2 Caines' R., 168; BuUer's N. P. C, 316. Mr. Justice Story, 
 in delivering the opinion of the supreme court of the United 
 States, in the case of Carver v. Jackson, 4 Peter's R., 80, says, 
 the court to which a writ of error is brought has nothing to do 
 with the charge of the court below upon mere matters of fact, 
 or with its comments upon the weight of evidence. Such ob- 
 servations are understood to be addressed to the jury, as the 
 ultimate judges of matters of fact, merely for their considera- 
 tion, and are entitled to no more weight or importance than the 
 jurors in the exercise of their own judgments choose to give 
 them. But if the court, in summing up the evidence to the 
 jury, should mistake the law, it would furnish a proper ground 
 for an exception to the charge of the court. Even in that 
 case, however, the exception should be strictly confined to such 
 mistake in the law which was applicable to the case. Whether 
 it is competent for the court before which an indictment for fel- 
 ony is tried, to grant a new trial at the instance of the defendant, 
 where there has been a palpable misdirection of the court upon 
 mere matters of fact, or a verdict clearly against the weight of 
 evidence without any such misdirection, when no erroneous 
 decision in point of law has been made, is a question which this 
 court is now called upon to decide. If the court before which the 
 trial is had cannot grant a new trial in such a case, the remedy, 
 if any, is with the legislature ; as it is a settled principle of law 
 that no writ of error lies to an inferior court, to review its 
 decision upon matters of fact. So much of the charge of the 
 recorder, in the present case, as relate to the sufficiency of the 
 evidence to establish the falsity of the pretenses charged in 
 the indictment, must therefore be laid out of view by this 
 court in its decision, as being merely the expression of an opin- 
 ion upon questions of fact which were submitted to the jury 
 for their consideration, and not an erroneous decision of the 
 court, upon a question of law, for which a bill of exceptions 
 would lie. It is insisted, however, by the counsel for the plain- 
 tiff in error, that the charge was erroneous in point of law, be- 
 cause the jury were instructed it was not necessary for the pub- 
 lic prosecutor to establish the falsity of all the pretenses 
 charged in the indictment as false ; but that it was sufficient to 
 
The People v. H^ynbs. 335 
 
 authorize a conviction, if the jury were satisfied that some of 
 the pretenses were false, and that the accused obtained the 
 goods solely and entirely on those pretenses, which were 
 proved to be false, with an intent to cheat and defraud the per- 
 son from whom the goods were thus obtained. On this point 
 I agree with Mr. Justice Nelson, who delivered the opinion of 
 the supreme court, that the charge in this respect was more 
 favorable to the. accused than a correct construction of the sta- 
 tute would warrant. It is not necessary, to constitute the of- 
 fence of obtaining goods by false pretenses, that the owner 
 should have been induced to part with his property solely and 
 entirely by pretenses which were false; but if the jury are satis- 
 fied that the pretenses proved to have been false and fraudulent 
 were a part of the moving cause which induced the owner to 
 part with his property, and that the defendant would not have 
 obtained the goods, if the false pretenses had not been super- 
 added to statements which may have been true, or to other cir- 
 cumstances having a partial influence upon the mind of the 
 owner, they will be justified in finding defendant guilty of the 
 offence charged, within the letter as well as within the spirit of 
 the statute on this subject. 1 am accordingly of the opinion 
 that, in the case now under consideration, although all the pre- 
 tenses stated in the indictment, as those upon the strength of 
 which the goods were obtained, were charged to be false, if 
 either of them was in fact false, and was intended to deceive 
 the owner of the goods, and thus to induce them to part with 
 their property, and actually produced the effect, the indictment 
 was sustained. One false pretense was sufficient to constitute 
 the crime, although other false pretenses were also charged in 
 the indictment. As a general rule, if an averment in an in- 
 dictment is divisible in its nature, and any one part thereof is 
 sufficient of itself to constitiite the crime, the other part of the 
 averment need not be proved, unless they are descriptive and 
 material to the identity of that which is essential to the charge 
 contained in the indictment. Thus, in an indictment for trea- 
 son, where several overt acts of the same treason are charged 
 in one count of the indictment, it is sufficient to sustain the 
 count if any one of them is-proved. Lowick's case, 13 Howell's 
 State Trials, 377. So in an indictment upon the statute, mak- 
 
336 Phalen's Oeiminai- Cases. 
 
 ing it a capital felony for clerks, carriers, and others employed 
 in the care or transportation of mail, to steal or take out of a 
 letter any bank post-bill, note, bill or exchange, etc., it was held 
 sufficient to prove that the defendant was employed in one 
 capacity, in the care of the mail, although the indictment 
 charged that he was employed in two ; and where the indict- 
 ment charged that the letter which was purloined contained a 
 bank post-bill and a bill of exchange, it was held sufficient if 
 the proof showed it contained either. Rex v. Ellins, Russ. & 
 Ryan's C. C. R., 188; see also. Rex v. Shaw, 2 W. Black. R., 
 790. In the case of The King v. Hunt, 2 Camp. R., 584, 
 which was an indictment for composing and publishing a libel. 
 Lord Ellenborough held it sufficient to prove the joublication, 
 although no evidence was adduced to show the composing of 
 the libel by the defendant ; that if an indictment charged that 
 the defendant did and caused to be done a particular act, it 
 was enough to prove either. 
 
 He also says, " this distinction runs through the whole cri- 
 minal law, and it is invariably enough to prove so much of the 
 indictment as shows that the defendant has committed a substan- 
 tive crime therein specified." See also. The King v. Holling- 
 berry, 4 Barn. & Cress.^R., 329, and Hill's case, Russ. & Ryan's 
 R., 390. 
 
 Neither is it necessary to constitute the statutory offence of 
 which the plaintiff in error was convicted, that any false token 
 should be used, or that the false pretenses should be such that 
 ordinary care and common prudence were not sufficient to 
 guard against the deception. Such was undoubtedly the rule 
 in relation to cheats, which were punishable by indictment by 
 the common law in England. On this subject our English, 
 ancestors originally adopted a laxer rule of morality than their 
 Scottish neighbors, who very properly held the crime of swind- 
 ling, or obtaining goods by willful lying or other false pretenses,, 
 as on a par in point of moral turpitude with stealing; and it 
 was punished accordingly under the common law of Scotland. 
 Thus in Hall's case, 1 Hume's Crim. Law, 173, the prisoner 
 was convicted, and transported for seven years, for the crime 
 of falsely assuming the character of a merchant, by hiring a. 
 shop and filling it with fictitious bales; by which pretenses he 
 
The People v. Haynes. 337 
 
 induced several persons to furnish him with goods on a credit, 
 when he had, in fact, no intention of carrying on business as 
 a trader. In Scott's case, 1 Alison's Crim. Law, 365, the 
 swindling for which the prisoner was convicted, and sentenced 
 to eighteen months' imprisonment, was the obtaining of hay 
 from a farmer, upon the false and fraudulent pretense that he 
 was the contractor's clerk, taking up forage for the use of the 
 cavalry. Joamia Rickerby was also convicted of swindling in 
 obtaining wearing apparel, by assuming a false name and 
 falsely pretending that she had lost her clothes by shijiwreck. 
 In Reid's case, Burnet, 173, the fraud consisted in falsely 
 assuming the character of an excise officer, and thus obtaining 
 money under the pretense of compounding for the forfeiture 
 on goods that had been smuggled. In Harvey's case, 1 Alison, 
 364, the prisoner was convicted, and transjDorted for seven 
 years, for obtaining goods deposited with another by the owner, 
 for safe keeping, under the false pretense that he was employed 
 by such owner to receive the goods so deposited ; and in Kir- 
 by's case, 1 Hume, 174, the prisoner was sentenced to be trans- 
 ported for live years, for obtaining a sum of money from a 
 bank in Leith, imder the false pretense that he had money in 
 the hands of his banker in London, and accordingly drawing 
 a draft on a bank there witli whom he had no account, and 
 when he had no reason to suppose the draft would be paid. 
 
 It was found in England, as early as the reign of George II., 
 that the rule of the English common law was not sufficiently 
 rigid to protect the honest and unsuspicious — that class who 
 stand most in need of protection against the falsehoods and 
 impositions of swindlers; and a statute Avas thereupon passed, 
 to remedv the defect of the common law, which is the oriarin 
 of our own statutory provisions, and of the siibsequent Eng- 
 lish statutes on this subject. These statutes have adopted the 
 principles of the Scottish common law, and the decisions under 
 them, both in this State and in England, have been substan- 
 tially the same as in the cases above referred to from Hume, 
 Burnet and Alison, who are the princijial writers upon the 
 criminal law of Scotland. Under these statutes, as in the law 
 of Scotland, the ofEence consists in intentionally and fraudu- 
 lently inducing the owner to part with his goods, or other 
 22 
 
o38 Phalkn's Ceiminal Casks. 
 
 things of value, either hy a willful falsehood, or by the offen- 
 der's assuming a character he does not sustain, or by rejjre- 
 sentinar himself to be in a situation which he knows he is not 
 in. Thus in Aivey's case, under the English statute, the pris- 
 oner was convicted, and transported for seven years, for ob- 
 taining pay for the carriage of goods, upon the false pretense 
 that he had deli\-erL'd the goods and taken a receipt for the 
 
 ■ same, which he had lost or mislaid: 2 East's E., 30. So in 
 Witchell's case, 3 East's P. C, 830, the obtaining of money 
 upon a false account of the number of .workmen employed in 
 the business of a manufacturing establishment, by which the 
 
 ■ prisoner, who was entrusted to pay them, obtained a larger 
 sum than was due to them f(ir tlieir wages, was held to be 
 
 , within the statute. In Eex v. Jackson, 3 Camp. R., 370, upon 
 an indictment for obtaining goods under the false pretenses of 
 immediate ])aynient, by giving in payment a check on a 
 banker with whom the prisoner had no funds, and with whom 
 he kept no account, Bailky, J., said the same point had 
 recently been before the twelve judges, and they were all of 
 opinion that it was an offence indictable under this statute, to 
 obtain goods by giving a check upon a banker with wliom the 
 party kept no cash, and which he knew would not be paid. 
 In this state, also, so far as questions have been brought before 
 the higher tribunals, the statute has received a similar con- 
 struction; and the decisions in the courts of oyer and terminer, 
 so far as they have come under my notice, especially since the 
 decision of the case of The People v. Johnson, in 1815, 12 
 John. E.., 293, have been in conformity with the principles 
 adopted by the English judges, in giving effect to their statu- 
 tory provisions on this subject. Lynch's case, cited by the 
 counsel for the plaintiff' in error, from the City Hall Eecorder, 
 ] City Hall Eec, 138, was incorrectly decided, as the offence 
 in that case was clearly within the statute. The fact that 
 checks are frequently drawn by men of business, before they 
 have funds actually in bank to meet them, could not alter the 
 law of the case, as it must always be a question for the con- 
 sideration of the jury, whether the prisoner intended to com- 
 mit a fraud by imposing a check upon another which he knows 
 would not be paid when presented. 
 
The Pkople v. Hatnes. 339 
 
 I am aware, from the numerous cases which have come 
 under my observation, judicial!)' and otherwise, that tlie rule 
 of morality established by the decisions under the statutes, 
 and by the common law of Scotland, had been deemed too 
 strict . for those who, in 1825 and subsequently, have been 
 engaged in defrauding widows and orphans, and the honest 
 and unsuspecting part of the community, by inducing them 
 ■to invest their all, which in many instances was their only 
 ■dependence for the wants and infirmities of age, in the purchase 
 of certain stocks in incorj^orated companies, which the venders 
 iraudulently represented as sound and productive, although 
 they at the time knew the institutions to be insolvent, and 
 their stock perfectly worthless. But I am yet to learn that a 
 law, which punishes a man for obtaining the property of his 
 unsuspecting neighbor by means of any willful misrepresen- 
 tation, or deliberate falsehood, with intent to defraud him of 
 the same, is establishing a rule of morality which will be 
 deemed too rigid for the respectable merchant and other fair 
 business men of the city of ISTew York, or of an}' otlier part 
 of the state. Neither do I believe any honest man M'ill be in 
 danger of becoming a tenant of the state prison, if the statute 
 against obtaining money or other things of value, by false and 
 fraudulent pretenses, if carried into full effect, according to the 
 principles of the decisions to which I have referred. Eut it 
 may indeed limit and restrain the fraudulent speculations and 
 acts of some, whose principles of moral honesty are regulated 
 solely by the denunciation of the penal code. The law upon 
 -this point, as laid down by the supreme court in this and nu- 
 merous other cases, is unquestionably the settled law of the 
 land, in conformity with both the spirit and intent of a posi- 
 tive legislative enactment. But if those members of this 
 court, who are senators, believe that either the morals or the 
 welfare of the community will be promoted by repealing this 
 statutory provision for punishing the crime of swindling, 
 ■which in point of' moral turpitude is frequently more aggra- 
 vated than some cases of simple stealing, it will be their duty, 
 in their legislative capacities, to vote for a repeal of the law; 
 leaving the honest and unsuspecting to protect themselves as 
 they may against the arts and deceptions of those who intention- 
 
340 Phalen's Ceiminal (]ases. 
 
 ally defrauded them of tlieir property, by willful and corrupt 
 lying, and other false pretenses, calculated to deceive that class of 
 citizens which is most in need of the protection of the law. In this 
 place, as members of the court of dernier resort, it is our duty 
 to declare the law as it now exists ; so that the declared will of 
 the legislature may be carried into full effect. In the case 
 now under consideration, I have no doubt that the prisoner 
 was properly convicted of the offence charged in this indict- 
 ment, if the goods were obtained upon the representations 
 which were proved to be false. It is evident from the testi- 
 mony that, at the time the representations were made, he was 
 hopelessly insolvent to the amount of seventy thousand dollars ; 
 that he knew his situation, and for the purpose of inducing 
 the owners of the goods to let him have them on a credit, he 
 represented himself as in easy and unembarrassed circum- 
 stances as to his money matters, able to pay all he owed; and 
 that he was worth from nine to ten thousand dollars over and 
 above all his debts. It only remains, therefore, to consider the 
 question whether the delivery of the goods was obtained by 
 means of these false and fraudulent pretenses, or whether, in 
 legal contemplation, the goods had been delivered before that 
 time, although the prisoner was not then aware of the fact. 
 
 It appears from the testimony that the plaintiff in error had 
 been in the habit of dealing with Cochran, Addoms & Co., 
 previous to the time when these goods were obtained, and upon 
 credit of about four months, that when he apjilied for these 
 goods, they entertained no suspicion as to his credit; that the 
 goods were selected, packed up in a box marked Charles Hay- 
 nes, Boston, which was the place of his residence, and sent on 
 board of the Providence steamboat, according to his direction, 
 to be transpoi-ted at his expense to the latter place, and taken 
 from thence to his place of residence; and that a receipt was 
 taken therefor from the master of the steamboat, stating that 
 the box of goods was to be transported to Providence and de- 
 livered to the Boston M'agoner, who received goods at Provi- 
 dence and delivered them at Boston, according to the marks 
 and addresses on the packages ; and one of the prosecutors, 
 who was a witness, testified that after the box was delivered on 
 board the steamboat, as directed by Haynes, he considered it 
 
The Pkopi,b v. Haynes. 341 
 
 as being at the risk of the latter if it was lost or stolen. After 
 the box had thiis been delivered on board the boat, but before 
 Haynes was aware of that fact, the witness heard a rejjort 
 resiDCcting the latter, which induced hiui to suspect his credit; 
 and upon Haynes coming to the store, the witness, without in- 
 forming him that the goods had already been sent to the steam- 
 boat, told him they could not deliver the goods in consequence 
 of having heard that he had had a note ])rotested. Upon which 
 occasion the false representations as to his situation and credit 
 were made; and the witness being satisfied therewith, handed 
 to him the receipt and invoice of the goods, and took his note 
 for the same at thirty days. The counsel for the prisoner in- 
 sisted, and asked the court so to instruct the jury, that delivery 
 of the goods on board of the boat was a complete delivery, and 
 that as the pretenses were made after such delivery, although 
 they might have prevented Cochran, Addoms & Co. from ob- 
 taining a re-delivery of the same, that was not sufficient to 
 sustain the charge as laid in the indictment. The court, how- 
 ever, charged the jury that the prisoner had undoubtedly ob- 
 tained the goods from the prosecutors, as charged in the indict- 
 ment; to which charge an exception was taken. If the deci- 
 sion of the coiirt was wrong upon this question of law which 
 arose in the case, the judgment of the court below should be 
 reversed, on the ground that the plaintiff in error did not 
 obtain the delivery of the goods by reason of his false pretenses 
 although he intended to do so at the time the false representa- 
 tions were made. 
 
 The supreme court considered the delivery of the goods as 
 incomplete and conditional, because the invoice had not been 
 delivered, nor the security for the purchase money given, and 
 because the receipt of the master of the boat was still in the 
 hands of the vendors. I do not understand from the testimony, 
 however, that there was any agreement or understanding be- 
 tween the parties, either express or implied, that the goods 
 should be retained until the invoice should be delivered and a 
 note given for the purchase money; and the receipt of the mas- 
 ter of the boat was merely taken by the vendors as a voucher, 
 to show that they had sent the goods on by the boat as directed. 
 From the testimony, it also appears that the possession of the 
 
342 Piialen's Ceiminal Cases. 
 
 receipt was not necessary to enable the purchaser to obtain the: 
 goods upon their arrival at the place of destination. Even: 
 where goods are sold upon the understanding that they are to 
 be paid for on delivery, if goods are delivered withont insist- 
 ing upon payment at the time of delivery, the title 2)asses ab- 
 solutely to the jjurchaser, unless there is a special agreement 
 or a usage of trade showing the delivery to be conditional. 
 Deliver)' of goods also to a servant or agent of the purchaser, 
 or to a carrier or master of a vessel, when they are to be trans- 
 ported by a carrier or by water, is equivalent to a delivery tO' 
 the purchaser; and the 2:)roperty, with the correspondent risk, 
 immediately vests in the purchaser, subject to the vendor's 
 right of stoppage in transitu, if the purchaser becomes insol- 
 vent before the goods arrive at their place of destination; and 
 particularly when the carrier is specially named by the vendee. 
 2 Kent's Comm., 499; Dawes v. Peck, 8 T. E., 330. In the 
 present case, therefore, I think we are bound to consider the 
 delivery of the box on board of the boat, to be sent on to the 
 vendee's i-esidence at Boston, and delivered there according to 
 the direction on the box itself, as a valid delivery of the goods, 
 so as to divest the vendors of the possession as well as the 
 title; leaving them the mere right of stoppage in transitu, in 
 case of the, purchaser's insolvency. 
 
 The right of the vendor to reclaim his goods, as a security 
 for the unpaid purchase money, while in the hands of the mid- 
 dleman, was originally derived from the court- of cjiancery. 
 It is a mere equitable authority to repossess himself of the 
 goods, upon the insolvency of the vendee!; and it cannot be ex- 
 ercised at the mere caprice of the vendor, when no such insol- 
 vency exists. Per Lord Stowell, in the case of The Constantia, 
 6 Rob. Adm. R., 321. To invest the vendor with the right 
 of property and possession of the goods after they liave been 
 absolutely dilivered to the carrier or middleman, there must be 
 an actual stoppage by a positive exertion of ' the right, by the 
 vendor or his agent, either by taking corporeal possession of 
 the goods,' or by a notice to the carrier not to deliver them to 
 the vendee, or by some equivalent act; and until such right is 
 actually exercised, the right of property and possession remains 
 in 'the vendee, who may maintain an action of trtiver against 
 
The People v. ITaynes. I>43 
 
 any one withholding the goods from him. But the actual ex- 
 ercise of the right i-e-vests the title to the property in the ven- 
 dor, and enables him thereafter to maintain trover against any 
 one who subsequently to the exercise of this right, obtains 
 possession of the goods and refuses to deliver them to hirai. 
 Litt V. Oowley, 7 Taunt. II. 169. In the present case the right 
 of possession and of property was actually vested in llaynes, 
 by the deli\'ery on board the steamboat at the time the false 
 and fraudulent pretenses were put forth by him; and the ven- 
 dors had not in fact re-invested themselves with the title to the 
 property by stopping it in transitu. He did not, therefore, in 
 legal contemplation obtain the pcissession or delivery of the 
 property by means of the false pretenses stated in the indict- 
 ment; although he intended to do so, not being aware of the 
 fact of the. delivery of the goods on board the steamboat, at the 
 time the false representations as to his situation and solvency 
 were made. Although in point of moral turpitude there is no 
 essential difference between obtaining the possession of the 
 goods by willful and deliberate falsehoods in the iirst instance, 
 and preventing the vendor fi'om exercising a legal and equita- 
 ble right by similar fraudulent and corrupt means, it would, I 
 think, be going too far, in a prosecution for felony, to say the 
 two cases are the same, and that the accused maj' be convicted 
 of the latter offence, under an indictment charging him with 
 obtaining the delii,'ery of the goods by means of these false 
 pretenses. 
 
 I therefore, for this reason only, think the judgment of the 
 court below was erroneous, and that it should be reversed. 
 
 By Senator Tuacy. I think some of the exceptions to the 
 charge of the recorder were well taken, aiid that tlie supreme 
 court has erred in deciding otherwise. 
 
 The indictment was under the statute against obtaining pro- 
 perty by false prr.tenses with intent to defraud. The proof on 
 the trial went entirely to show that the goods were obtained 
 on a previously established credit, without any pretense or 
 representation whatever, and at most, that after being so ob- 
 tained the defendant succeeded in retaining the possession of 
 them by means of false pretenses. If this be the true character of 
 the transaction, the defendant was convicted of an offence" not 
 
344 Phalen's Oeiminal Oases. 
 
 prohibited by law, and for which he certainly was not indicted. 
 Whether it be so or not, depends on the fact of the delivery of 
 the goods. Addoms, the principal witness for the prosecution, 
 testiiied that Haynes had a very good credit with the house of 
 which the witness was a partner, tliat he (Haynes) selected the 
 goods himself, that they were put aside from the rest of the 
 goods, packed up in a box, which was marked on the outside 
 and addressed to Charles Haynes, Boston, being the place of 
 his residence ; that the goods were afterward sent to the Provi- 
 dence steamboat, according to Haynes' directions, and a re- 
 ceipt taken by the cartman. 
 
 I can have no doubt that these facts constitute an absolute 
 delivery, and indeed it is admitted on all sides that it was such 
 a delivery as j^ut the property wholly at the risk of the vendee, 
 and, it might be added, such a delivery as would enable him to 
 imaintain trover, or any other action for their loss or injury. 
 But it is said that while the goods were in this situation, and 
 before they had readied their final destination at Boston, the 
 vendors had a right to resume the actual possession of them. 
 This I very much doubt; for the fact that Haynes was on the 
 spot, personally to select the goods, and to have them laid 
 aside, boxed and directed, seems to me to be a perfect delivery, 
 such as to dejDrive the vendee of any specific lien on them. I 
 take the rule to be, that though goods are sold upon credit, 
 yet if they are actually delivered to the purchaser without any 
 arrangement as to the security for the payment of them, the 
 vendor's lien upon them is gone. 3 East, 396, 5 id., 175; 4 
 Esp. R., 82. The case is in this respect distinguishable from 
 those in which the goods have never reached the hand of the 
 vendee, but have only passed from the hands of the vendor to 
 some intermediary person as a carrier, etc., to be by him deliv- 
 ered to the vendee. But supposing the fact that Haynes' pres- 
 ence at the purchase and setting aside of the goods made no 
 difference as to the character of his possession, and that they 
 were only in transition, so that the vendor still had a lien on 
 them, Haynes was yet the legal owner of the goods. So far 
 as ownership is concerned, the delivery to the master of the 
 steamboat, or even to the cartman, was sufficient, and any dis- 
 position which Haynes saw fit to make of them would be 
 
The People v. Haynes. 345 
 
 valid, subject at most to the equitable lien of the vendor for 
 the amount due to him. Delivery of goods to a servant or 
 agent of the purchaser, or to a carrier or master of a vessel, 
 where they are to be sent by a carrier or by water, is equivalent 
 to delivery to the purchaser, and this thougli the carrier 
 was to be paid by the vendor. 2 Camp., 639; 3 Bos. & Pul., 
 584; 6 Cowen, 114. The right of stoppage in transitu has 
 not the effect which the supreme court seems to suppose of 
 making the delivery conditional, biit is only a lien which the 
 vendor, under certain circumstances, may enforce to secure the 
 price, and even if enforced, the goods strictly belong to the 
 vendee; and if they shall prove of more value than the lien, 
 though that be for the whole piirchase money, the balance be- 
 longs to the vendee. It is erroneous to suppose that the right 
 of stopjjage continues the ownership in the vendor. "It is a 
 contradiction of terms," says Justice BuLLEii, ''to say a man 
 has a lien on his own goods, or has a right to stop his own 
 goods in transitu.^" The right of the vendor to stop goods 
 in transitu, in case of the insolvency of the vendee, originated 
 in the courts of equity, and Avas first heard of in "Wiseman v. 
 Vandeput, 2 Vern., 203; and though it has been greatly 
 favored and encouraged by the courts of law, as well as those 
 of equity, for the pui'pose of substantial justice, yet it has 
 never been held to rest on the ground of a right to rescind the 
 contract, vide Hodgson v. Loy, 7 T. E.., 445 ; and therefore it 
 is settled that a court of equity has no jurisdiction to supi:)ort 
 it by process of injunction, 2 Kent's Comm., 492. 
 
 But the supreme court thinks that, although the property 
 was undoubtedly for some purpose to be considered delivered, 
 yet the delivery was " incomplete and conditional," so that the 
 vendors had the right to resume the possession. If this was 
 conceded, I do not see how it affects the present question, 
 unless the offence charged was that of preventing the vendors 
 from resuming the possession by means of false jDretenses, 
 which it requires no argument to show would not sustain an 
 indictment. But I find nothing in the case to show that the 
 •delivery was "incomplete and conditional;" indeed I am not 
 sure that I comprehend what is meant by an incomplete de- 
 livery, but presume it means, at most, no more than a con- 
 
346 Piialen's Criminal Cases. 
 
 ditional delivery ; and to constitute a conditional delivery, it is 
 necessary the condition slionld be express. 4 Mass. E., 405; 
 Fiirniss v. Hone, 8 Wendell, 247. The circumstances from 
 which the supreme court infer that the delivery was conditional, 
 are, 1. The invoice had not been delivered; 2 Security for the 
 purchase money had not been f>;iven; and 3. The receipt of the 
 master of the boat was in the hands of the vendors. The first and 
 last of these circumstances no way affect the fact or character of 
 the delivery; the invoice or bill of the goods was immaterial, and 
 the receipt of the master of the boat was necessarily given after 
 the delivery, and of course any disposition made of it could 
 not affect that fact. The objection that " security fur the 
 purchase money had not been given," assumes what no whei-e 
 appears, that security was to be given. The utmost security 
 that could ha\-e been contemplated was the purchaser's note, 
 and if this had been an express condition of the sale, of which 
 there is no evidence, yet it was waived by a delivery without a 
 concurrent and express demand. This principle was fully 
 settled in Chapman v. Lathrop, G Cowen, 110, and in this 
 court, Lupin v. Marie, 7 Wendell, 77. In every view, there- 
 fore, that I can take of this point, 1 am satisfied the exception 
 that there \vas no evidence that the goods were obtained by 
 means of the false pretenses was valid. 
 
 I am also satisfied that another exception was well taken; it 
 is that to the instruction to the jury, that if some of the pre- 
 tenses were false, and they (the jury) believed the goods were ob- 
 tained solely by means of them, the indictment was sustained, 
 notwithstanding other pretenses alleged to be means of obtain- 
 ing the goods, and averred to be false, were not proved to be 
 false. My impression, on the argument, ^^•as against this ex- 
 ception; but on re-examining the opinion of the .supreme 
 court, their views on this point appears to me plainly erro- 
 neous. The offence of obtaining goods by false pretenses is 
 combined of Uvo distinct elements, to wit, false pretenses, and 
 obtaining the goods; neither of them alone constitutes an 
 offence. An indictment, therefore, must set forth the pretenses 
 by which the goods were obtained, and expressly aver them 
 to be false; and when so set forth and averred to be false, they, 
 together with the obtaining of the goods, constitute the offence 
 
The Peoplk v. Haynks. 347 
 
 charged. It follows, necessarily, that every pretense thus set 
 forth, and charged to be false, is made a substantive part or 
 constituent element of the offence for which the indictment is 
 found,' and of course cannot be deemed immaterial, much less 
 impertinent. The distinction between material and immate- 
 rial averments in an indictment is settled to be, that if the 
 averment be connected with the cliarge, it must be proved; 
 but if it be wholly immaterial, or if the averment be totally 
 unconnected with the cliarge, it need not be pro\-ed, 1 Chitty's 
 Crim. Law, 192. Here each and every pretense set forth and 
 alleged to be false is not only intimately connected with the 
 circumstances that constitute the crime, but in fact a part and 
 portion of the crime charged. It is therefore a much sti-onger 
 case than those usually put, to distinguish a material from an 
 immaterial or impertinent averment. The general rules and 
 principles of pleading with respect to the structure of a decla- 
 ration are applicable to an indictment, and if we look at the 
 decisions as to averments in the former, which must be 
 proved as laid, -there would seem no roojn for doubting 
 the necessity in the present case. The leading case, Bristow.. 
 V. Wright, Dough, 665, settled by a judge renowned foi: 
 disregarding technical rules when they interfered with sub- 
 stantial justice, was of an averment by no comparison as ma- 
 terial as that under consideration. The supreme court seems 
 to regard the cases of The King v. Berrott, 2 Maule & Selw., 
 370, and The Peoj^le v. Stone, 9 Wendall, 1S2, as authorities 
 which support the recorder's charge on this point; but I find 
 nothing in them that can be properly viewed in this aspect, 
 certainly not in the iirst case, the whole reasoning of which is 
 to show the necessity of making the charge specitic, by a dis- 
 tinct averment of the falsity of these pretenses or representa- 
 tions which are intended to be relied on as constituting the 
 offence. Why it should be indispensable thus to designate 
 them, if they or any of them, -when so designated and averred 
 can be disregarded on the trial as "not intimately connected 
 ■with the circumstances which constitute the crime," I am un- 
 able to preceive; and in Stone's case though there is an ex- 
 pression of the court seeming to confound the case of several 
 pretenses with that of several assignments of perjury, in one 
 
348 PHAiEN's Criminal Cases. 
 
 coTlnt, yet Justice Sutherland, who delivered the opinion, in 
 showing that it was necessary to negative only the pretenses 
 relied upon as material, says: " If it were necessary to nega- 
 tive all the false pretenses in the indictment, it would be neces- 
 sary to prove them all false on the trial;" plainly indicating 
 that notwithstanding his intimation of its being sujBBcient to 
 prove one of several assignments in the same count, he per- 
 cieved the necessity of making the jDroof, on an indictment for 
 false pretenses, co-extensive with the pretenses specially 
 averred to be false. The supposed analogy to an indictment 
 for perjury does not hold. These several perjuries, each con- 
 stituting a distinct offence, may be assigned in the same count, 
 and proof of one is sufficient; which is iiideed no more than to 
 say, if several offences are charged in several counts, proof to 
 support one count is sufficient; but here the several false pre- 
 tenses charged constitute but one ofEense, and each is alleged 
 by the indictment as an ingredient of it. To say that enough 
 of them was proved to show that the jury did no injury to the 
 prisoner by convicting him, is no more satisfactory than the 
 same argument might be if there had been no indictment 
 whatever. The objection of the inconvenience and difficulty 
 of proving every pretense to be false that the indictment 
 alleges to be false, is entitled to no weight, even if such incon- 
 venience and difficulty really exist; but they do not. The grand 
 jury have no right to find that any other pretenses were false 
 than such as are proved to them to be so; and if they do not, 
 there will be no moi'e difficulty of proving their falsity on the 
 trial than before them. And here is to be found a decisive 
 test of the necessity of having the proof sustain all the aver- 
 ments of the indictment. Unless it does, the grand jury may 
 indict for one offence, and the traverse jury convict for another- 
 This actually has occurred in the present case. That the grand 
 jury would have indicted for what the petit jury have con- 
 victed, or vice versa, is what may be surmised, but never can 
 be known ; consequently that great principle of security for 
 personal liberty, which requires the concurrence of both in the 
 same facts to pi'oduce a conviction, has not been observed. 
 
 I have another strong objection to the conviction, which is 
 found in the belief that the false declarations proved were not, 
 
The People v. Haynes. 349 
 
 under the circumstances in which they were made, false pre- 
 tenses within the meaning of the statute. They were direct 
 answers to distinct interrogatories put to the defendant, and 
 are, I think, distinguishable fi-om those artfully contrived 
 stories, against which only, in my opinion, the statute was de- 
 signed- to guard. To say, as in this case, that an xintrue reply 
 to an inquiry made of a person how much he is worth, or 
 whether he is embarrassed, is what the statute means by a 
 ■false pretense, is to give to it a sweejDing and mischievous con- 
 struction, a construction which if carried out to all cases it 
 would reach, no court could enforce; no community could 
 tolerate. I admit with Lord Kenyon, 3 T. R., 102, that the 
 offence created by the statute is described in terms extremely 
 general, and that there is difficulty in drawing a distinct line 
 between the cases to which it does and to which it does not 
 apply. But this very admission of Lord Kenyon, made many 
 years after the statute was in force, proves what till very lately 
 has never been doubted, that a bare naked lie, unaccompanied 
 with any artful contrivance, is not what the statute denominates 
 as false pretense. If it were, Lord Kenyon's remark would be 
 altogether unfounded; for in that case there could be no diffi- 
 culty in drawing the line, indeed there would be no line to 
 draw. At common law, no mere fraud, not amounting to a 
 defined felony, Avas an indictable offence, unless it affected the 
 public. Lord Mansfield observed, that "an offence, to be in- 
 dictable, must be such a one as affects the public;" and he 
 instanced the use of false weights and measures in the course- 
 of general dealing, fraud by means of false tokens, etc. But 
 fraud by a false token, designed to cheat only the individual 
 defrauded, was not indictable at common law; it must be a false 
 token designed to affect the public generally, such as false 
 weights and measures, counterfeit marks on goods, etc. To 
 meet the insufficiency of the law in this respect, the statiite 33 
 Henry VIIL, was passed, making fraud on individuals, by 
 means of privy tokens, misdemeanors. Under this statute it 
 was settled that, to constitute a token, it must be something 
 real and visible — as a ring, a key, etc. ; but as this statute did 
 not reach cases of fraud effected by verbal misrepresentation, 
 however ingenious in their contrivance and well fitted they might 
 
350 Phalen's Criminal Cases. 
 
 be to deceive the most wary, and a case of the most flagitious 
 fraud occurring, where the perpetrator went unwhipjDed of jus- 
 tice because there happened to be no tolcen used, notwithstand- 
 ing the means that were used were equally fitted to throw a cau- 
 tious man ofE his guard, the statute of 30 Geo. II., called com- 
 monly the statute against false pretenses was enacted. From 
 this statute the term false pretenses, found in our own statute, 
 was taken ; and the connection in which it is placed in our statute 
 shows plainly that it was adopted there with regard to the cir- 
 cumstances which, in the original English statutes, attached to 
 it a particular and technical meaning. Our statute, 2 E. S., 
 677, § 58, reads: "Every person who, with intent to cheat or 
 defraud another, shall, designedly, by color of any false token 
 or writing, or by any other false- pretenses," etc. The inquiry 
 here is whether " any other false pretenses " means any false as- 
 sertion, however bald and naked it may be — as in the present 
 case, where the defendant, on being asked if he was any way em- 
 barrassed, replied he was not — or means such false pretenses 
 as would naturally have an effect on the mind of the person to 
 whom it was addressed, equivalent to that of a false token. 
 The history of the adoption of the terra, leaves me with no 
 doubt that the latter is its statutory meaning. It indeed is 
 not as clear as it has been assumed to be, that the common 
 lexicographical meaning of pretenses is assertion. An autho- 
 rized definition of it is " a delusive appearance produced by false 
 representations;" and this comes much nearer to my notion of 
 its statutory meaning, than any definition does which con- 
 founds it with a naked falsehood. 
 
 It was many years after the act of 30 George II., before the 
 English courts made any considerable advance towards the 
 construction that is now so much favored. Young v. The King, 
 3 T. R., 102, may in this respect be considered a pioneer case; 
 and when the facts in it are compared with those of some mod- 
 ern cases, it will be seen how fast of late the new doctrine has 
 been traveling. In that case four persons conspired to defraud 
 another, by concertedly aud falsely representing to him that a 
 large bet had been laid with a colonel in the army that a certain 
 pedestrian feat would be performed, and that they, or some of 
 them, had a share in the bet, thereby inducing him to advance 
 
The People v. Haynes. 351 
 
 to one of them a sum of money, and become a sliareholder in 
 the wager. This, which in truth was indictable at common 
 law as a conspiracy, was held to be within the statute, and the 
 rule was then laid down, that when a party has obtained money 
 or goods, by falsely representing himself to be in a situation 
 in which he was not, or by falsely representing any occurrence 
 that had not happened, to which persons of ordinary caution 
 might give credit, he was guilt}' of the offence. This rule the 
 supreme court adopted, without argument or explanation, in 
 the case of The Peojjle v. Johnson, 12 Johns. li., 292, and it 
 has been gradually enlarging itself, down to the present case. 
 The rule, as originally announced and applied, is not perhaps 
 exceptionable, except for its vagueness and great liability to 
 abuse. It meant, in the case, where it was first applied, a false 
 representation with circumstances fitted to deceive a person of 
 common sagacity, exercising ordinary caution. It is now con- 
 strued to mean any false declaration by ^vhich any person has 
 been deceived. The construction adopted in this case is, I am 
 persuaded, not only an incorrect but a mischievous construc- 
 tion of the statute — a construction which, if strictly main- 
 tained, would overflow our courts with criminal prosecutions, 
 ' and our jails and penitentiaries with convicts; the whole penal 
 code, beside, would not be half so burthensome to execute, or 
 half so fruitful of convictions; most of the common dealino's 
 of life might give birth to complaints before grand juries, and 
 every exchange of property, from a ship's cargo to a barrel of 
 flour, and even less, might afford occasion for a public prose- 
 cution. The principle that has been advanced, in the opinion 
 we are reviewing, is that " where falsehood has had a material 
 effect to induce a person to part with his jjroperty, the offence 
 has been committed." Apply this rule, not only to the great 
 exchanges of property, but to the innumerable and comjDara- 
 tively insignificant dealings of men to every swap of horses — in 
 fine, to every transaction by which property is transferred, a 
 note given, or money paid — and no man coirld count thp cases 
 it would reach. Merchants and others, in the habit of giving 
 credit, or incurring great risks for the chance of great profits, 
 might at first be gratified with a rule that enabled them to 
 enforce collections by the terrors of a criminal prosecution; 
 
352 Phalen's Ceiminal Casiss. 
 
 but when " even-handed justice commends the poisoned chalice 
 to their own lips," and they shall find themselves arraigned at 
 the bar of criminal justice for every misrepresentation of the 
 cost, quality, saleableness or value of every article they have 
 sold, they too will be ready to exclaim, '"Tis rigor, and not 
 law." 
 
 It can be said, I know, there will be no difficulty if men are 
 honest and tell the truth. All will admit the obligation of 
 truth and honesty; all have admitted them from the beginning 
 of time ; but how feeble have human laws proved in their ef- 
 forts to enforce them. Does it follow, if men are not honest, 
 and will not tell the truth, that they are to be arraigned, and 
 tried, and convicted as felons? What scheme of criminal ju- 
 risjDrudence could carry out this principal? What prison could 
 contain the convicts ? We have it from the liighest authority 
 that by nature " all men are liars," and a master judge of the 
 human character has said, that " to be honest, as the world goes 
 is to be one man picked out of ten thousand." To punish as 
 a crime, then, what the multitude of offenders make a custom, 
 is to attempt what we can never hope to execute. It is the 
 remark of a profound philosopher, that " the operation of the 
 wisest laws is imperfect and precarious; they seldom inspire 
 virtue; they cannot always restrain vice; their power is insuffi- 
 cient to prohibit all that they condemn, nor can they always 
 punish the actions which they prohibit." Though the laws 
 will not justif}', yet they must recognize the frailties and im- 
 perfections of human nature, and they do deal with men as 
 beings, subject to propensities and passions which they may 
 aid to restrain, but which it is impossible to extirpate. How 
 inconsistent it would be, when the law will not receive a man's 
 oath if he has sixpence at stake upon it, that it should send 
 him to the state's prison for an untrue answer to an inquiry 
 into his pecuniary affairs, which he may have the strongest 
 motive for concealing. And how disturbed and uncomfortable 
 would be the condition of a community like ours, where traffic 
 and credit are infinitely ramified and unceasingly active, if 
 every person dissatisfied with a bargain, or disappointed by a 
 misplaced confidence in the responsibility or punctuality of an- 
 other, shall be quickened, by the prospects of redress or revenge, 
 
The People v. Hatnes. 353 
 
 to recollect some untrue representation made in the course of the 
 transaction, stimulated by the hope of rescinding a bad bar- 
 gain or of securing a doubtful debt, or irritated by the unex- 
 pected loss of what he had supposed a good one, how natural 
 it is that he should persuade himself that " falsehoods had a 
 material effect to induce him to part with his property;" and 
 prompted by an opinion which interest or irritation had 
 created, first to threaten a criminal prosecution, and afterwards, 
 if the terror of it proved unavailing, to sustain it by testimony 
 always colored, and sometimes wholly composed by his passions. 
 It is dangerous to give one man such j)ower over the reputa- 
 tion and personal liberty of another. If possessed, it would 
 be often abused; and it is inevitable that perjuries would be 
 multiplied, and injustice and rank oppression promoted. 
 
 I cannot concede or conceive that a construction is sound, 
 or fitted to advance the general welfare, which proposes to 
 protect property from loss by impositions which the owners 
 can easily guard against, and expose reputation and liberty to 
 invasions which no prudence or integrity may always repel. 
 Besides, it is an Utopian idea, that the sanctions of criminal 
 justice can be made co-extensive with moral delinquencies. 
 Plowever agreeable to our sentiments of natural justice it 
 might be to punish every immoral act, it would be quixotic 
 •to attempt it. No community ever assumed the obligation 
 of protecting, by penal laws, every member of it from the 
 consequences of his own credulity, imprudence or folly; and 
 if any one should, it would be but following " false images of 
 good," that could make no promises perfect. It is impossible 
 for the public to sustain the burthen of redressing every injury 
 or loss which individual credulity or cupidity may bring upon 
 itself. The most it can do, and what by the statute under con- 
 sideration it proposes to do, is to protect individuals from 
 those ingeniously contrived frauds and unusual .artifices against 
 which common sagacity and an ordinazy experience of man- 
 kind will not afford a sufiicient guard. Beyond this men must 
 trust to their own prudence and caution, with such aids and 
 redress as may be obtained from the civil tribunals. 
 
 For all and each of the objections I have stated, I am for 
 reversing the judgment of the supreme court. 
 23 
 
354: Fhalen's Criminal Oases. 
 
 Opinions were also delivered by Senators Ednaonds, Edwards 
 and Maison, concurring witli the Oliancellor and Senator Tracy 
 in tlieir conclusions that the delivery of the goods on board the 
 steamboat was an absolute delivery, and invested the purchaser 
 with both the title and possession, and that consequently, under 
 no possible view of the case, could the prisoner be considered 
 as having obtained the goods hy false pretenses. 
 
 On the suggestion of the Chancellor, the court agreed in the 
 first instance to pass only upon the question M'hether the de- 
 livery of the goods on board the steamboat,' under the circum- 
 stances of the case, was an absolute delivery, and invested the 
 purchaser with the title as well as the possession of the goods ; 
 and on the question being put, the members of the court 
 unanimously expressed the opinion that the delivery was abso- 
 lute. Whereupon the judgment of the supreme court was 
 reversed. 
 
 Judgment reversed. 
 
 Maeanda v. State. 
 
 (44 Texas, 442.) 
 
 False Peetenses. — An indictment for false pretenses must allege that 
 the defendant knowingly made the false pretenses. 
 
 MooEE, A. J. The motion in arrest of judgment should 
 have been sustained. Knowledge of the false pretenses by 
 means of which money or property is fraudulently obtained, 
 is an essential constituent of the offence with which appellants 
 are charged. Without proof that they knew that the pretense 
 was false, evidently they should not be convicted. And 
 although the word " knowingly '' is not one of the statutory 
 
People v. Jacobs. 365 
 
 words used in defining the ofEence, still as the offence, as de- 
 fined by the statute, clearly requires that it shall be proved, we 
 think, by the rules of correct pleading, it should be averred in 
 the indictment. And so it is held by courts of the highest 
 authority and standard commentators. Regina v. Philpotts, 1 
 Car. & Kir., 112; 2 Bish. Cr. Proc, sec. 172. The necessity 
 for such an averment in the indictment has been clearly recog- 
 nized by this court in the opinion of Mr. Justice Devine, in 
 the case of State v. Levi, 41 Tex., 563. The judgment is 
 reversed and the cause remanded. 
 Eeversed and remanded. 
 
 People v. Jacobs. 
 (35 Mich., 36.) 
 
 False Pkbtensbs. — It is sufficient to allege that the party defrauded was 
 induced by the false representations to part with his money. 
 
 The trial judge should charge the jury to disregard immaterial rep- 
 resentations. 
 
 Statements, as to the value and location of lots, are matters of opinion 
 and not within the statute. , 
 
 The case is sufiiciently stated in the opinion of the court. 
 
 Geavbs, J. Jacobs was convicted on a charge of having 
 obtained money of one Parts by false pretenses, and the case 
 comes here on exception before judgment. 
 
 Many exceptions seem to have been taken, but much the 
 larger portion are properly abandoned. There are some others 
 it would be desirable to consider if the record was in better 
 shape. Jacobs- called on Parts to borrow five hundred dollars, 
 and proposed to secure him by mortgage on land owned by his 
 wife, Mrs. Jacobs. After some talk the loan was made, but Parts 
 
356 Phalen's Criminal Cases. 
 
 retained ten dollars, bj understanding, to pay his expenses in 
 going subsequently to view the land. Mrs. Jacobs gave her mort- 
 gage, together with her note, to Barts for the money. In this 
 negotiation, as charged in the information, Jacobs made the 
 false representations concerning the land mortgaged. It alleges 
 that he falsely and feloniously pretended to Barts that Mrs. 
 Jacobs was owner of lots thirty-six, thirty-eight, forty and 
 forty-two, in block three, in Harriet M. Clement's subdivision 
 of the south one-third of fifteen acres, lying in a square farm 
 in the northwest corner of the northeast quarter of section 
 twelve, in town six south, of range twelve west, according to 
 the recorded plat ; that the lots were situated within the city 
 limits of the city of Grand Rapids ; were on the street running 
 directly from the business part of the city to the fair grounds, 
 near the city limits; were between such fair grounds and the 
 business portion of the city ; that the lots were nicely located ; 
 were quarter-acre lots and constituting one square acre; that 
 they would sell at any time at from twelve hundred dollars to 
 fifteen hundred dollars cash ; were worth much morfe than that, 
 and were entirely free.fromall incumbrance. These pretenses 
 are afterwards alleged to have been severally false. On the open- 
 ing of the trial it was objected that the information set up no of- 
 fence. The ground of the objection was not explained. But 
 at a later stage of the trial, the reason for the objection was 
 stated to be, that the information did not state in words that 
 Barts relied on the representations. The objection is not much 
 insisted on, and is not tenable. 
 
 The allegations in this particular are formally sufficient. 
 It was not essential to charge in express terms that Barts gave 
 credit to the false pretenses. That he did so was a necessary 
 implication from the allegation that he was induced by the 
 representations to part with his money. State v. Penley, 27 
 Conn., 587. 
 
 The court charged that if the jury believed, from the evi- 
 dence, that any of the pretenses charged were proved to be 
 false and fraudulent, and were part of the moving cause which 
 induced Barts to part with his money, and that he would not 
 have parted with it had not such false- pretenses been made, 
 they would be justified in finding him guilty. 
 
People v. Jacobs. 357 
 
 The instractions must have been understood as assuming 
 that each distinct pretense set up was a valid ground of charge, 
 and on which a conviction might rest, if found false and fraud- 
 ulent, and operative in any degree on Earts, to cause him to 
 make the loan. 
 
 No instruction was given that any representation laid as a 
 false pretense could not legally be so laid, nor any instruction 
 that any representation laid as a pretense was unproved, or any 
 instruction to preclude the jury from resorting to the whole 
 evidence, and finding from it that all the representations laid 
 as pretenses were in fact made. Hence, if any representation 
 laid as a false pretense could not be lawfully impressed with 
 that character, the jury were, in effect, permitted to convict 
 upon it. 
 
 Now, the alleged pretense that the lots were " nicely located," 
 was a distinct pretense in the information. But it was not 
 such a representation as could be made the subject of criminal 
 prosecution as a false pretense. I could not convey or be under- 
 stood as conveying any definite idea at all. There is no stan- 
 dard for trying the accuracy of such a statement. What is a 
 nice location to one may be far otherwise to another, and even 
 to the mind of one using it the exjDression is vague and indeter- 
 minate. No one can be supposed to accept such a representa- 
 tion as an assertion of the existence of some fact or circum- 
 stance sufficient to cause him to change his sitiiation in reliance 
 on it, and the law cannot measure or weigh people's fancies. 
 
 The alleged representation concerning the value of the lots 
 to be mortgaged cannot be construed as anything beyond a 
 matter of opinion, and it is not to be supposed that the expres- 
 sion was understood in a sense more absolute. There is no rea- 
 son for iraplying that Barts relied upon it, or was in any way 
 or to any extent duped by it. Bishop v. Smalls, 63 Me., 12; 
 Mooney v. Miller, 102 Mass., 217; Long v. Woodman, 58 Me., 
 49, and cases cited. These allegations were accordingly not 
 sufficient as grounds of charge, and it was error to allow the 
 jury to regard them as though they were. There are several 
 topics which would require discussion and explanation before a 
 jury, but are hardly proper for consideration here. 
 
 The conviction must be set aside, and in case another trial 
 
358 Phalen's Criminal Cases. 
 
 is deemed expedient, no doubt the prosecution will see to it 
 that the proceeding is quite differently shaped. 
 The other justices concurred. 
 
 Skiff v. The People. 
 (2 Parker C. R., 139.) 
 
 False Pretbnsbs. — It is sufficient to allege that the property was 
 obtained by false pretenses, without setting forth the means employed. 
 
 Where the indictment charged the pretense of owning two tracts of land 
 designating them as the " Home farm," and the " Van Sliaack farm," the 
 description was held to be sufficiently definite. 
 
 It is not necessary to negative all the pretenses in an indictment, nor to 
 prove all that are negatived. 
 
 Whether the prosecutor used ordinary prudence is a question for the 
 jury. 
 
 The county where the property was obtained, not where the contract was 
 made, is the proper county for the trial. 
 
 The case is sufficiently stated in the opinion of the court. 
 
 By the court, Weight, J. The first objection is to the 
 sufficiency of the indictment; the second to the proof sustain- 
 ing it. Under the two general objections, we are to consider 
 the case. 
 
 1. As to the indictment. It alleges that the defendant, with 
 the intent to cheat and defraud one Samuel Hale, made cer- 
 tain false pretenses, which pretenses are set forth with parti- 
 cularity in the pleading; that Hale, believing such false pre- 
 tenses and representations, was induced by reason of them to 
 deliver, and did then and there deliver to the defendant, thirty- 
 nine head of cattle, of the value of $600, the property of 
 Hale; and the defendant did designedly receive and obtain the 
 
Skiff v. The People. H59 
 
 cattle bj means of the false pretenses, and with intent to cheat 
 and defraud Hale. The pleadings charge in the language of the 
 statute, that the defendant with intent, etc., did obtain from 
 Hale certain personal property, etc. That Hale was induced 
 by the false pretenses to deliver, and did deliver to the defen- 
 dant, and that the defendant did receive and obtain, certain 
 cattle. It does not, however, in terms allege a sale of the cattle 
 from Plale to Skiff, or any other bargain, by which the prop- 
 erty was transferred from the one to the other; and accord- 
 ingly, when the public prosecutor proposed to show a bargain 
 and a sale of the cattle, by which they were transferred, the 
 defendant objected, on the ground that no bargain and sale 
 were alleged in the indictment. We are of the opinion that 
 the indictment is not defective in this I'espect. It sufficiently 
 alleges the facts constituting the crime. The offence consists 
 in obtaining the property, whether this be through a sale or 
 bailment, or in any other way. The fact is specifically alleged 
 that the cattle were delivered to, and obtained by the defendant 
 by means of the false pretenses, that is, that they were trans- 
 ferred to him. And under this allegation, evidence of the 
 manner of the transfer was admissible. 
 
 Another objection taken to the proof of any bargain and 
 sale of the cattle, was that the property and its location was 
 insufficiently described in the indictment to admit of any proof 
 thereof. From the indistinctness of this objection, it is a little 
 difficult to say what property is alluded to ; but the counsel for 
 the defendant tells us that he referred to the two pieces of land 
 which Skiff, as the pleadings allege, pretended to own. The 
 indictment charges the pretense of owning two pieces of land 
 in the town of Easton, in the county of Washington, desig- 
 nating them as the Home farm or place, and the Van Schaack 
 farm. This description seem to us to be sufficiently definite. 
 It is unlike the case of The People v. Lord, (9 Barbour, 675), 
 where the indictment described the lands generally to be in the 
 state of Texas. 
 
 Hale parted with his property on credit. It was part of the 
 agreement by which Skiff obtained the cattle, that he was to 
 give a note payable at a bank on which Hale could get the 
 money. On the trial, the district attorney asked the witness 
 
360 Phalen's Criminal Oases. 
 
 \ 
 if the note was j)aid ; to this question the defendant's counsel 
 objected, on the ground it was not alleged in the indictment 
 that the note was not paid. The court overruled the objection, 
 and the defendant's counsel excepted. There was no error in 
 this. It was no reason for rejecting the inquiry, that the fact 
 of non-payment had not been alleged in the indictment. Had 
 the objection been that the offence charged required no proof 
 of the non-payment of the note to make it complete, and con- 
 sequently such proof was immaterial, there might have been 
 more force in it. But then we could hardly have come to the 
 conclusion that it was wholly irrelevant. It tended at least 
 slightly, in connection with other proof in the case to character- 
 ize the quo animo of the transaction- on the part of the de- 
 fendant. 
 
 There is nothing in the objection that the indictment does 
 not falsify all the pretenses. It is not necessary to negative 
 all the pretenses in the indictment, or to prove all that are 
 negatived to be false, t) "Wend., 182; 11 Wend., 557. 
 
 2. As to the sufficiency of tlie proof. At the close of the 
 testimony, the defendant's counsel moved for his discharge, 
 for the reasons: 1st. That by the evidence it appeared that 
 Hale parted with his property under the understanding, on his 
 own part, that he was to receive a good indorsed note, and not on 
 the faith of the representations made by Skiff. 2d. That Hale 
 had not shown ordinary diligence to ascertain the defendant's 
 circumstances, although it was proved that he had abundant 
 means within his power to ascertain the same. 3d. That the 
 court of sessions had no jurisdiction to try the cause ; and that 
 it could only be tried in the county of Rensselaer, where the 
 offence, if any, had been committed. The court denied the 
 motion for discharge, holding that the question raised involved 
 matters of fact for the consideration of the jury. 
 
 If the fact had stood out in the case uncontroverted, that 
 Hale was not influenced in parting with his property by the 
 false pretenses and representations of the defendant, but that he 
 relied on an agreement that he was to receive a good indorsed 
 note, the court should have discharged him or at least directed 
 the jury to acquit. But this was not so. Hale expressly tes- 
 tified that he was induced by the defendant's representations 
 
Kellkr v. State. 361 
 
 of his solvency, his ability to pay, etc., to let him have the 
 cattle, and that except for such representations being made, he 
 should not have parted with his property. 
 
 The case does not show that Hale did not use ordinary pru- 
 dence and diligence in inquiring into the truth of the pretenses. 
 He inquired of Tabor, the landlord and neighbor of the defen- 
 dant. But the degree of prudence, and the sufficiency of the 
 pretenses to deceive, were questions of fact for the jury, and 
 they have found against the defendant. 
 
 I do not think there is any force in the point as to jurisdic- 
 tion. The transaction took place in the county of Washington. 
 It was there the pretenses were made and believed, and the 
 cattle weighed and delivered. The sale was there consum- 
 mated and possession taken of the property. The waiving, by 
 Hale, of the giving of the note until the parties arrived in 
 Troy, can not have the effect to change the place of malung 
 the representations and the delivery of the cattle. It is suffi- 
 ciently clear from the evidence, that the offence for which the 
 defendant was indicted, was committed in the county of Wash- 
 ington; that there the defendant obtained the property from 
 Hale, and of course the court of sessions of that county had 
 jurisdiction. 
 
 The judgment of the court of sessions of the county of 
 Washington is affirmed. 
 
 Kellee v. State. 
 (51 Ind., 111.) 
 
 Falsb Pretenses. — An indictment alleging that the prisoner falsely 
 pretended that he had recently sold certain real estate, should give the 
 name of the purchaser or describe the property. 
 
 Where the pretenses were that certain land was not subject to any prior 
 
b 
 
 362 Fhalen's Criminal Oases. 
 
 lien, an allegation that the property was subject to prior liens, without 
 describing them, is insuflicient. 
 Representations relating to future events are not within the statute. 
 
 BusKiEK, J. The appellant was indicted in the court below 
 for obtaining property by false pretenses. The indictment 
 contains two counts, which, as to the false pretenses charged, 
 are nearly identical. The appellant moved to quash each 
 count, but this motion was overruled, and he excepted. He 
 pleaded not guilty, and was tried by a jury and was found 
 guilty. The court overruled the motion in arrest of judgment 
 and for a.new trial, to which exceptions were taken. Judg- 
 ment was rendered on the verdict. 
 
 The appellant has assigned for error, the overruling of this 
 motion to quash the indictment, in arrest of judgment, and for 
 a new trial. 
 
 The tirst question for the consideration of the court relates 
 to the sufficiency of the indictment. 
 
 The first count, omitting the formal parts, is as follows: 
 " The grand jurors of Tipton county, in the state of Indiana, 
 good and lawful men, duly and legally impaneled, sworn and 
 charged in the Tipton circuit court of said state, at the spring 
 term of the year 1875, to inquire into felonies and certain mis- 
 demeanors in and for the body of the said county of Tipton, in 
 the name and by the authority of the state of Indiana, on their 
 oath do present that one Eobert H. Keller, late of said county, 
 on the 13th day of October, in the year 1874, at and in the 
 county of Tipton, and state of Indiana, did then unlawfully, 
 feloniously, designedly and with intent to defraud one George 
 W. Boyer, falsely pretend to the said George W. Boyer, that 
 he, the said Robert 11. Keller, had been the owner, and had 
 recently sold to a certain party a certain piece of real estate, 
 to-wit, a house and lot of ground, situated in the city of 
 Indianapolis, in the county of Marion, in the state of Indiana, 
 for a large sum, to-wit, the sum of thirty -five hundred dollars; 
 that said real estate was of great value, and fully worth the 
 said sum of thirty -five hundred dollars, and that there was still 
 due the said Robert H. Keller, upon the purchase money of 
 said house and lot of ground so sold as aforesaid, the sum of 
 five hundred dollars, and that there was no lien or incum- 
 
Kbllke v. State. 363 
 
 brance on said house or lot of ground, except the said hen of five 
 hundred dollars, for the purchase money thereof, due the said 
 Robert H. Keller, as aforesaid, and that if the said George W. 
 Boyer would sell and deliver to the said Robert 11. Keller, 
 goods, chattels and jjroperty to the amount of five hundred 
 dollars, he, the said Robert H. Keller, would pay the said 
 George W. Boyer therefor, in and with a promissory note 
 given and being for the said sum of five hundred dollars, the 
 purchase money due the said Robert PI. Keller, upon the said 
 house and lot of ground as aforesaid, and to be made payable 
 to the said George W. Boyer, on the 1st day of March, in the 
 year 1875, and secured by a mortgage upon the said house and 
 lot of ground, and that the said lien of five hundred dollars, 
 for the purchase money for the said house and lot of ground, 
 and the said mortgage securing the same, was all and the only 
 lien whatever upon the said house and lot of ground, and that 
 the said house and lot of ground were of the full value of 
 thirty -five hundred dollars, and ample and sufiicient surety for 
 the payment of the said purchase money as aforesaid, and that 
 the note executed as aforesaid to the said George W. Boyer 
 would be of the full value of and worth the sum of five hun- 
 dred dollars. 
 
 By. means of which said false pretenses then and there made 
 to the said George W. Boyer, by the said Robert H. Keller, 
 as aforesaid he, the said Robert H. Keller, did then and there, 
 with intent to cheat and defraud him, the said George W. 
 Boyer, unlawfully and feloniously obtain and receive from the 
 said George W. Boyer, the following goods, chattels and prop- 
 erty, to-wit: One spring wagon, of the value of two hundred 
 and twenty -five dollars ; one two horse wagon, of the value of 
 one hundred and fifty dollars; one log wagon of the value of 
 one hundred and twenty -five dollars, all of the said goods, 
 chattels and property, being of the aggregate value of five 
 hundred dollars ; and for the goods, chattels and property of 
 the said George W. Boyer, and in payment for the said goods, 
 -chattels and property so obtained and received by the said 
 Robert II. Keller, from the said George W. Boyer, as aforesaid, 
 he, the said George W. Boyer, did receive the said five hun- 
 dred dollar note, fully relying upon and believing said false and 
 
364 Phalen's Ckiminal Cases. 
 
 fraudulent pretenses and representations made to him by the 
 said Robert II. Keller, as aforesaid, and believing them to be 
 true; whereas, in truth and in fact, the said Robert H. Keller 
 had not then recently sold to a certain party a certain piece of 
 real estate, to-wit, a house and lot of ground situated in the 
 city of Indianapolis, in the county of Marion, in the state of 
 Indiana, for a large sum to-vvit, for the sum of thirty-five hun- 
 dred dollars, as aforesaid, and that said house and lot of ground 
 V7ere not then of the value or worth thirty -five hundred dollars 
 as aforesaid; and that the said lien and mortgage of five hun- 
 dred dollars on the said house and lot of ground for the pur- 
 chase money thereof as aforesaid was not the only lien and 
 incumbrance then upon said house and lot of ground, but 
 there were various and numerous other liens thereon, older and 
 prior to the said lien of five hundred dollars, amounting in the 
 aggregate to two thousand dollars, and greatly exceeding the 
 value of said house and lot of ground; and that said house and 
 lot of ground were not then of sufficient value to amply and 
 sufficiently secure the payment of the said five hundred dollar 
 note, as aforesaid; and that said note, executed to the said 
 George W. Boyer, as aforesaid, was not worth or of the value of 
 five hundred dollars, but was in fact entirely worthless, and of 
 no value whatever, contrary to the form of the statutes in such 
 case made and provided, and against the peace and dignity of 
 the state of Indiana." 
 
 We proceed to the examination of the first error assigned. 
 The first count in the indictment has been set out, and as it is 
 quite lengthy, we will summarize its averments and negations. 
 
 1. It is averred that Robert H. Keller (falsely pretended that 
 he) had been the owner, and had recently sold to a certain party, 
 whose name is not given, nor is it averred that this name was 
 unknown to the jurors, a certain piece of real estate, to-wit, a 
 house and lot of ground situated in the city of Indianapolis, 
 county of Marion, and state of Indiana, for a large sum of 
 money, to-wit, for the sum of thirty-five hundred dollars. 
 There is no further description of such real estate or any aver- 
 ment that it was unknown to the jury. 
 
 2. That said real estate was of the value of thirty -five hun- 
 dred dollars. 
 
Keller v. State. 365 
 
 3. That there was still due the said Robert 11. Keller, upon 
 the purchase money of said house and lot the sum of live hun- 
 dred dollars. 
 
 4. That there were no liens or incumbrances upon the said 
 house and lot except said sum of five hundred dollars for the 
 unpaid purchase money, and the mortgage securing the same. 
 
 5. That the said house and lot of ground were of the full 
 value of thirty -five hundred dollars, and ample and suflScient 
 security for the said sum of five hundred dollars. 
 
 5. That the note which was executed by the purchaser of said 
 real estate to George W. Boyer, to whom said representations 
 were made, and in reliance upon which he had sold the said 
 Keller certain personal property, would be of full value, and 
 worth the said sum of five hundred dollars. 
 
 The first averment is very vague and indefinite. There is 
 no sufficient description of the real estate alleged to have been 
 owned and sold by the appellant. Nor is the name of the pur- 
 chaser given. Criminal charges must be preferred with rea- 
 sonable certainty, so that the court and jury may know what 
 they are to try, of what they are to acquit or convict the de- 
 fendant, and so that the defendant may know what he is to 
 answer, and that the record may show, as far as may be, of 
 what he has been put in jeopardy. The averments should be 
 so clear and distinct that there could be no difficulty in deter- 
 mining what evidence was admissible under them. It fully 
 appears from the evidence in the record that the appellant had 
 owned and transferred lot ]S"o. 46, in I'ande's subdivision of 
 outlot No. 139, in the city of Indianapolis, county of Marion, 
 and state of Indiana. This evidence was admitted over the 
 obiection and exception of appellant. Its admission was ob- 
 jected to on tjie ground that the averments of the indictment 
 were neither specific nor broad enough to render such evidence 
 admissible. If the appellant, in his representations to Boyer, 
 did not describe the property which he had owned and sold, 
 the description of the property could not have been introduced 
 in that portion of the indictment, but the first averment as above 
 set out might have been preceded with or followed by a statement 
 that the appellant had owned and recently sold lot 46 in Yande's 
 subdivision of outlot No. 129, in the city, county and state 
 
366 Fhalen's Criminal Casks. 
 
 aforesaid, and that the representations relied upon were made 
 in reference to such property. If the name of the purchaser 
 of such lot was known to the grand jury, it should have been 
 stated, but if unknown that fact should have been averred. 
 
 The negation to the first averment is as follows : 
 
 ■ " Whereas, in truth and in fact, the said Robert H. Keller 
 had not then recently sold to a certain party a certain piece of 
 real estate, to-wit, a house and lot of ground situated in the 
 city of Indianapolis, in the county of Marion, and state of 
 Indiana, for a large sum of money, to-wit, for the sum of thirty- 
 five hundred dollars as aforesaid, and that said house and lot 
 of ground were not then of the value of, or worth thirty -five 
 hundred dollars." 
 
 By the above averment and negation, the guilt of the appel- 
 lant is made to depend upon the question whether the house 
 and lot of ground had been sold to a certain party for the exact 
 sum of thirty -five hundred dollars, and whether they were 
 worth that exact sum, when it should have been made to depend 
 upon whether the appellant had sold said house and lot of 
 ground to any person for said sum, and whether the property 
 was of such value as to amply secure said sum of five hundred 
 dollars alleged to be due. 
 
 The second averment is, that appellant represented that 
 said real estate was of the value of thirty -five hundred dol- 
 lars. It is contended by counsel for appellant that a state- 
 ment of the value of property is a mere expression of opinion 
 or judgment, about which men may honestly differ, and if 
 there is no fixed market value, an estimate that is too high 
 will not constitute a criminal false pretense. 
 
 The question discussed by counsel does not squarely arise 
 upon the averment in the indictment, and' heqce we do not 
 consider or decide the question, preferring to wait until it 
 arises on the evidence or instruction of the court based upon 
 the evidence. 
 
 There is no negation of the third averment; hence, it is ad- 
 mitted to be true, and no evidence would be admissible to 
 prove it to be untrue. 
 
 The fourth averment and its negations are insufiicient. The 
 negation to the fourth averment does not set out or describe 
 
Keller v. State. 367 
 
 the liens that constitute the prior incumbrances. How was it 
 possible for the appellant to prepare for trial under such an 
 averment and negation? How could he show, on trial, that 
 the liens proved by the state had no valid existence, or had 
 been paid off? He would have no notice of the liens relied 
 upon until the evidence was offered by the state. It would be 
 contrary to well established principles to allow evidence to be 
 given upon a material issue, tending to fasten fraud and false- 
 hood upon the party, without any averment or notice in the 
 indictment of the facts sought to be proved. The People v. 
 Miller, 2 Parker 0. C, 197. 
 
 The fifth averment and its negation are sufficient. 
 
 The sixth relates to a future event, and cannot constitute a 
 criminal false j^retense. Bishop, in sec. 420 of his Crira. Law, 
 vol. 2, p. 230, says: "And both in the nature of things, and 
 in actual adjudication, the doctrine is, that no representation of 
 a future event, whether in the form of a promise or not, can 
 be a pretense, within the statute, for the pretense must relate 
 either to the past or to the present." See Jones v. The State, 
 50 Ind., 473, and authorities there cited. 
 
 Although some of the averments are 'sufiicient, yet, standing 
 alone and disconnected with the other averments, they are not 
 sufficient to constitute a good indictment. 
 
 There is a direct repugnancy in the averments of the indict- 
 ment, which renders it fatally defective. , It is alleged, " that 
 if the said George W. Boyer would sell and deliver to said 
 Robert H. Keller goods, chattels and property to the amount 
 of five hundred dollars, he, the said Robert H. Keller, would 
 pay the said George W. Boyer therefor, in a promissory note, 
 given and being for the said sum of five hundred dollars, the 
 purchase money due the said Robert H. Keller upon the said 
 house and lot of ground, as aforesaid, and to be made payable 
 to the said George "W". Boyer on the first day of March, in the 
 year 1875, and secured by mortgage upon said house and lot of 
 ground," etc. 
 
 It is alleged that Keller was to pay Boyer in a note given 
 and being for the said purchase money, and it is then averred 
 that said note is to be made payable to the said Boyer, and 
 secured by a mortgage upon said real estate. In The State v. 
 
368 Phaien's Criminal Cases. 
 
 Locke, 35 Ind., 419, the indictment was held bad because it 
 charged that the pretense was made to induce Kiser to become 
 the security of Locke, on a six hundred dollar note, but that, 
 instead of going security, he became a principal, and made a 
 note for six hundred dollars, payable to Locke. The indict- 
 ment was held ambiguous and uncertain, and an indictment 
 must be direct and certain, as it regards the party and the 
 offence charged. Whitney v. The State, 10 Ind., 404; Walker 
 V. The State, 23"id., 61; Bicknell's Crim., Prac, 90, 93, 94; 
 The State v. Locke, supra; The Commonwealth v. Magowan, 
 1 Met., Ky., 368; The People v. Gates, 13 Wend., 311. 
 
 It is a settled rule of criminal pleading that the offence 
 charged must be proved in substance as charged. This cannot 
 be done in the averment under examination. The two aver- 
 ments are directly repugnant. It is averred that the note for 
 five hundred dollars had been given to Keller, and was secured 
 by mortgage. It was shown upon the trial that, at the time 
 the representations were made, Keller had agreed upon a sale 
 of his house and lot of ground, in the citj^ of Indianapolis ; 
 but the deed had not been made, nor had the notes and mort- 
 gage been given, and that, these facts were known to Boyer, 
 and it was then agreed that a note for five hundred dollars 
 should be made payable directly to Boyer, and secured by 
 mortgage; and it also appears that this was done. Such proof 
 could not sustain the averments of the indictment. 
 
 We are clearly of the opinion that the indictment cannot be 
 sustained. It is ambiguous, uncertain, repugnant, and defec- 
 tive in its averments and negations. 
 
 The judgment is reversed, with costs; and the case is 
 remanded, with directions to the court below to sustain the 
 motion to quash. The clerk will give the proper order for the 
 return of the prisoner. 
 
Commonwealth v. Geady. 369 
 
 Commonwealth v. Grady. 
 (13 Bush., Ky., 285.) 
 
 Falsb Pbetensbs. — The pretense that a house and lot were unincum- 
 bered, when, in fact, they were subject to a recorded mortgage, is not a 
 false pretense within the statute. 
 
 Where a party has means of detecting the imposition at hand, and could, 
 by an exercise of common prudence, have protected himself, there can be 
 no conviction. 
 
 Judge Elliott delivered the opinion of the court. 
 
 This is an indictment charging the appellant with having 
 obtained the money and property of Prisley O'Bannon, by the 
 false pretenses of fraudulently representing to O'Bannon that 
 he was the owner of a house and lot in Owen's addition to the 
 town of Eunice, and that the house and lot so owned were free 
 from lien of mortgage to any one. 
 
 By the misrepresentations it is charged that appellee ob- 
 tained from O'Bannon $125 in money and some promissory 
 notes for the house and lot; and that it turned out, on investi- 
 gation, there was a recorded mortgage on the property, which 
 had been executed by appellee to Lotty Kelso. 
 
 The indictment failed to state the amount of the mortgage 
 lien of Mrs. Kelso ; for if it was merely nominal the appellee 
 may have made the representations, charged with no intent of 
 defrauding O'Bannon, but with the intention of removing the 
 incumbrance with a part of the money received from him. 
 But we agree with the opinion of the lower court, that the 
 indictment was ii;isufficient for several teasons. 
 
 In the case of the Commonwealth v. Haughey, 3 Met., 223, 
 M 
 
370 Phalen's Criminal Cases. 
 
 it was charged that Haughey obtained credit on a note he owed 
 E. E,. Jones, upon the false and fraudulent pretense and repre- 
 sentation that a large quantity of tobacao, which Jones then 
 purchased, would average in quality with a sample which 
 Haughey then and there exhibited to said Jones. 
 
 This court affirmed the judgment of the lower court, dis- 
 missing the indictment, and say that a common caution on the 
 part of Jones would have protected him from any injury; he 
 could, without trouble, have retained his note till the tobacco 
 was delivered, and if, upon an offer to deliver it to Haughey, 
 it was not equal in quality to the sample exhibited, he could 
 have rejected it. 
 
 So in this case, O'Bannon could have refused to execute and 
 deliver his note to appellee, or even to pay him the $125 in 
 money till he stepped to the clerk's office, and ascertained from 
 the records of the Henry county court where the title to the 
 house and lot was such as represented. 
 
 In Wharton's Criminal Law, vol. 2, section 2129, the doc- 
 trine is laid down that " a representation, though false, is not 
 within the statute (meaning the statute against obtaining 
 money and propertj^ by false pretenses), unle^ss calculated to 
 deceive persons of ordinary prudence and discretion;" and this 
 author further says that the statutes against obtaining money, 
 etc., by false pretenses ought not to be so interpreted as to in- 
 clude a case where the party defrauded had the means of detec- 
 tion at hand. 
 
 Here O'Bannon had the means of detection at hand, for, hj 
 a visit to the clei'k's office, he could soon have astertained 
 whether the appellee had the unincumbered title to the house 
 and lot as represented by him. 
 
 Wherefore the judgment is affirmed. 
 
State v. Andkeson. 371 
 
 State v. Andbeson. 
 
 (47 Iowa, 142.) 
 
 Falsb Pretenses. — Where, by tlie agreement between the prosecutor 
 and the defendant, the defendant gets no title to the property which is de- 
 livered to him, the crime of obtaining property by false pretenses is not 
 committed. 
 
 Seevees, J. The indictment charged " that * * defendant 
 did obtain from the St. Paul Harvester Works, through J. C. 
 Yetzer * * * one Elward harvester, of the value of one hun- 
 dred and ninety dollars." The defendant pleaded not guilty. 
 The false pretenses used for the purpose of obtaining said prop- 
 erty were in writing, and were as follows : 
 
 " $115.00. Atlantic, Iowa, July 13, 1875. 
 
 " For value received, on or before the first day of October, 1876, I, the 
 subscriber, of Benton township, county of Cass, and state of Iowa, promise 
 to pay to the order of the St. Paul Harvester Works one hundred and fifteen 
 dollars, at the Cass County Bank, in Atlantic, with interest at ten per cent, 
 per annum, from date until paid, and, in addition, I will pay five per cent, 
 attorney's fee, if suit is commenced on this note. 
 
 "The express condition of the sale and purchase of the Elward har- 
 vester, for which this note is given, is such that the title, ownership or pos- 
 session does not pass from said St. Paul Harvester Works until this note is 
 paid in full ; that said St. Paul Harvester Works shall have full power to 
 declare this note due, and take possession of said machine at any time they 
 may deem themselves insecure, even before the maturity of this note. For 
 the purpose of obtaining credit, I, P. H. Anderson, hereby certify that I 
 own, in my own name, forty acres of land in section thirty-one, township 
 of Benton, county of Cass, and state of Iowa, with twenty-five acres im- 
 proved, worth |1,000, which is not incumbered by mortgage or otherwise, 
 
 except , I own (|800) dollars worth of personal property over 
 
 and above all indebtedness. P. H. Anderson. 
 
 "P. 0. Atlantic, county of Cass, state of Iowa." 
 
372 Phalen's Criminal Cases. 
 
 The " state introduced evidence whicli tended to show the 
 representations made and their falsity, and also that defendant 
 purchased of the St. Paul Harvester Works a harvester, which 
 the agent of the company was induced to sell and deliver by 
 and through said representations." ' 
 
 After the state rested, the defendant moved the court to 
 " direct the jury to acquit the defendant, for the reason that it 
 appeared by the contract the defendant did not obtain, by the 
 alleged false representations, the title to or property in said 
 harvester, but the same remained in the St. Paul Harvester 
 Works company, and that said company, notwithstanding the 
 delivery of the harvester to defendant, continued to be the 
 owner of the same, with the right to resume possession thereof 
 at any time," which motion was sustained, and the jury so 
 directed. The correctness of this ruling is the only question 
 to be determined. 
 
 The statute provides : " If any person designedly, and by 
 false pretense, or by any privy or false token, and with intent 
 to defraud, obtain from another any money, goods, or other 
 property, * * * ." Code, § 4073. 
 
 In 3 Arehbold's Criminal Practice and Pleading, 407, it is 
 said: "In order to convict a man of obtaining money or 
 goods by false pretenses, it must be proved that they were 
 obtained under such circumstances that the prosecutor meant 
 to part with his right to the property in the thing obtained, 
 and not merely with the possession of it." This doctrine is 
 recognized in 3 Greenleaf, § 160, and also, as we understand, 
 in 2 Wharton on Criminal Law, § 2149. 
 
 The only case cited by the attorney -general, as being in 
 conflict with these authorities, are SkifE v. The People, 2 Par- 
 ker's Criminal Keports, 139, and People v. Haynes, 11 Wend., 
 558. The former has but little, if any, bearing on the ques- 
 tion before us, and the latter was reversed in the The People 
 V. Haynes, 14 Wend., 547, and it was then held, where a per- 
 son sold goods to another on credit, and delivered the same on 
 a steamboat designed by the purchaser, to be forwarded to his 
 residence, that the sale became complete, and the title and pos- 
 session vested in the purchaser. After such delivery the seller 
 made the attempt to stop the goods while in transit, to prevent 
 
Jones v. State. 373 
 
 which the purchaser made certain false representations, in con- 
 sequence of which the seller did not persist in his attempt to 
 seize the goods. The purchaser was indicted for obtaining the 
 goods by means of false pretenses, and it was held he could 
 not be convicted. It is evident, in the case at bar, that the 
 seller did not intend to part with either the right of property 
 or possession, for it is expressly provided in the contract of 
 purchase and sale " that the title, ownership or possession, does 
 not pass " until the note is paid, and the right " to declare the 
 note due, and take j^ossession of the machine at any time," was 
 expressly reserved. 
 
 The defendant did not even obtain an unqualified right to 
 the possession. The plaintiff, in a legal sense, parted with 
 nothing. It is imnecessary to go as far as the rule laid down 
 in Archbold, in order to sustain the ruling below. At least, 
 we think the defendant must have obtained, by means of the 
 false pretenses, either the title or the unqualified right of pos- 
 session as between himself and his vendor, for at least some 
 length of time. Here the delivery and resumption of the 
 possession by the vendor could be at the same instant of time, 
 or as near thereto as it was possible for the mind to act and 
 determine. 
 
 Affirmed. 
 
 Jones v. State. 
 (50 Ind., 473.) 
 
 False Prktensbs. — A business card whicli is not genuine is a false 
 token. 
 
 The indictment must set out the contract which the ijrosecutor was 
 induced to enter into, and allege that the prosecutor relied on the false 
 pretenses. 
 
 "Where a note obtained by false pretenses, was exchanged for a second 
 note of the same tenor, held no defence. 
 
374 Phalen's Oeiminal Cases. 
 
 BusKiEK, J. The appellant was indicted for, and convicted 
 in the court below of, obtaining the signature of Jeptha O, 
 Mayfield, to a note payable to appellant, by false pretenses. 
 
 A motion to quash the indictment was overruled, and an ex- 
 ception taken. 
 
 A plea in abatement was filed, to which a demurrer was 
 sustained, and an exception taken. 
 
 A motion for a new trial was overruled,- and an exception 
 taken. 
 
 A motion in arrest of judgment was overruled, and an ex- 
 ception taken. 
 
 The errors assigned are as follows: 
 
 1. That the court erred in overruling the motion to quash 
 the indictment. 
 
 2. That the court erred in sustaining the demurrer to the 
 plea in abatement. 
 
 3. That the court erred in overruling the motion for a new 
 trial. 
 
 4. That the court erred in overruling the motion in arrest of 
 judgment. 
 
 We will dispose of the assignments of error in the order 
 stated. Did the court err in overruling the motion to quash 
 the indictment? That portion of the indictment material to 
 this question is as follows: 
 
 " That Edwin E. Jones, on the 14th day of January, 1875, 
 at said county of JefEerson, feloniously, designedly, and with 
 intent to defraud one Jeptha O. Mayfield, did falsely and 
 feloniously pretend to the said Jeptha O. Mayfield that he, the 
 said Edwin E. Jones, was the agent of a firm of persons in 
 the city of Cincinnati, state of Ohio, doing business under the 
 firm name of 'Mills, Spillmeyer & Co., at JSTos. 368, 370 and 
 372 West Third street, in said city of Cincinnati;' that said 
 firm were largely engaged in the manufacture of a certain im- 
 plement called ' Herman's Improved Lifting Jack,' and that 
 he, the said Edwin E. Jones, had authority from said firm to 
 sell said lifting jack for the said firm, and to contract for and 
 in behalf of said firm for the sale of said lifting jack by said 
 Jeptha 0. Mayfield, and did then and there feloniously, de- 
 signedly, and with intent to defraud said Jeptha O. Mayfield, 
 
Jones v. State. 3T5 
 
 exhibit to said Jeptha O. Mayfield a certain printed card of 
 said firm of Mills, Spillmeyer & Co., and which said card was 
 and is in the words and figures following: 'Mills, Spillmeyer 
 & Co., manufacturers of Herman's Improved ^Lifting Jack, 
 Nos. 368, 370 and 372 West Third street, Cincinnati, Ohio. 
 Send orders for Herman's Lifting Jack, in accordance with 
 contract;' and did falsely, felonously, designedly, and with in- 
 tent to defraud said Jeptha O. Mayiield, pretend to said Jep- 
 tha O. Mayiield, that said card was the genuine card of said 
 firm of Mills, Spillmeyer & Co., aforesaid; that said Jeptha O. 
 Mayfield relied on said pretenses so made to him by said Ed- 
 win E. Jones, and by means of said false pretenses the said 
 Edwin E. Jones did then and there feloniously, falsely, design- 
 edly, and with intent to defraud said Jeptha O. Mayfield, ob- 
 tain from said Jeptha O. Mayfield, a note of the said Jeptha O. 
 Mayfield for the sum of four hundred dollars which note is of 
 the tenor following: 
 
 " $400. Madisots p. O., Jefferson Codntv, .January 14, 1875. 
 
 " Six months after date I promise to the order of E. E. .Jones at the First 
 National Banli, Indianapolis, Indiana, four hundred dollars with interest at 
 
 the rate of per annum fr.om date, value received, without any relief 
 
 whatever from valuation or appraisement laws. Tlie drawers andindorsers 
 severally waive presentment for i)uyment, protest, and notice of protest and 
 non-payment of this note. If this note is not paid at maturity, the under- 
 signed agrees to pay the expenses of collection, including attorney's fees. 
 
 .1. O. M.\YFIKLD." 
 
 " With intent then and there to cheat and defraud him, the 
 said Jeptha (). Mayfield; whereas, in truth and in fact, the 
 said firm of Mills, Spillmeyer & Co., were not engaged in the 
 manufacture of the implements called ' Herman's Improved 
 Lifting Jack,' and whereas, in truth and in fact, said Edwin 
 E. Jones was not then and there the agent of said firm of Mills, 
 Spillmeyer & Co., and did not then and there have any autho- 
 rity from said firm to sell said lifting jacks for said firm, and 
 to contract for the sale of the same by said Jeptha O. Mayfield, 
 for said firm, and whereas, in truth and in fact, the said card 
 so exhibited as aforesaid and hereinbefore set forth, was not 
 then and there the genuine card of said firm of Mills, Spill- 
 meyer tt Co., contrary to the form of the statute," etc. 
 
 Section 27, 2 Gr. & H. 445, reads as follows: " If any person 
 
376 Phalen's Criminal Cases. 
 
 with intent to defraud, shall designedly, by color of any false 
 token or writing, or any false pretense, obtain the signature of 
 any j)erson to any written instrument, or obtain from any per- 
 son any money, transfer, note, bond or receipt, or thing of 
 value, such person shall upon conviction thereof, be im- 
 prisoned," etc. 
 
 The gravamen of the crime consists in obtaining the signa- 
 ture of any person to any written instrument, or in obtaining 
 from any person any money, transfer, note, bond or receipt, or 
 thing of value. 
 
 The offence may be committed by two means ; first, by color 
 of any false token or writing ; second, by any false pretenses. 
 The word " token," in its ordinary signification, means "a sign" 
 " a mark," " a symbol." The words " writing " and " written " 
 includes printing, lithographing, or other mode of represent- 
 ing words and letters. Sec. 1, subdivision 9, 2 G. & H., 338. 
 
 The indictment in the present case attempts to charge that 
 the signature of Mayfield was obtained to the note by means 
 of a false token, and by pretending that he was the lawful agent 
 of Mills, Spillmeyer & Co., and had authority from and in be- 
 half of said firm for the sale of said lifting jack. 
 
 The first question isj whether the printed card set out in the 
 indictment comes within the meaning of the words " token or 
 writing," used in the statute. 
 
 Bouvier's Law Dictionary defines the legal meaning of the 
 word "token" thus: "Token. A document or sign of the 
 existence of a fact. Tokens are either public or general, or 
 privy tokens. They are either true or false. When a token 
 is false, and indicates a general intent to defraud, and is used 
 for that purpose, it will render the offender guilty of the crime 
 of cheating, 12 Johns., N. Y., 292, but if it is a mere privy 
 token, as counterfeiting a letter in another man's name, in 
 order to cheat but one individual, it would not be indictable. 
 9 Wend., N. Y., 182; 1 Dall., Penn., 47; 2 Const, So. C, 139; 
 2 Va. Cas., 65; 4 Hawks., N. C, 448; 6 Mass., 72; 12 Johns., 
 K Y., 293; 2 Dev., K". C, 199; 1 Rich., So. C, 244." 
 
 We think the token exhibited by the appellant was a gene- 
 ral token, and indicated a general intent to defraud, and when 
 accompanied by the false pretenses alleged in the indictment, 
 
Jones v. State. 377 
 
 was calculated to deceive a person of ordinary intelligence and 
 prudence. 
 
 It is very earnestly contended by counsel for appellant that 
 tlie false pretenses set out in the indictment are not sufficient 
 to constitute the crime attempted to be charged. The first 
 objection urged to this part of the indictment is, that the word 
 " pretended " is used instead of the word " represented." In 
 our opinion, the objection is untenable. The word "pretense " 
 is used in the statute defining the crime. The word " pretend " 
 is the verb of the noun " pretense." The form of indictment 
 given by Bicknell in his Criminal Practice, p. 341, uses the 
 word " pretense." See Whart. Grim. Law, sec. 2144. 
 
 It is next urged that the indictment fails to aver any false 
 pretense which was sufficient to induce a person of ordinary 
 caution and prudence to execute his note for a large sum of 
 money, and we are referred to the following adjudged cases : 
 The State v. Magee, 11 Ind., 154; Johnson v. The State, 11 
 id., 481; The State v. Orvis, 13 id., 569. 
 
 In the first case cited, it was said : " The pretenses must 
 be of some existing fact, made for the purpose of inducing the 
 prosecutor to part with his property, and to which a person of 
 ordinary caution would give credit. A pretense, therefore, 
 that a party would do an act he did not intend to do is not 
 within the statute, because it is a mere promise for his future 
 conduct. Eoscoe Crim. Ev., 465, et seq. ; 11 Wend., 557; 14 
 id., 547; 3 Hill, 169; 4 id., 9, 126; 19 Pick, 186. These au- 
 thorities plainly show that any representation or assurance, in 
 relation to a future event, may be a promise, a covenant, or a 
 ■warranty, but cannot amount to a statutory false pretense." 
 
 In the second case cited, the indictment was held to be bad, 
 because it was not averred that the checks were delivered 
 to the prosecuting witness, and were by him received in pay- 
 ment for the harness. The case has- but little, if any applica- 
 tion to the present case. 
 
 The case of The State v. Orvis, supra, is in several respects 
 much like the present case. In that case, the indictment was 
 held to be bad, for the reason that it did not appear therefrom 
 that there was any contract or agreement between the defen- 
 dant and Smith, for the purchase by Smith of an agency to 
 
378 Phalen's Criminal Cases. 
 
 sell the articles mentioned, or that Smith parted with his 
 money for the purchase of an agency to sell, or any other in- 
 terest in the articles named. In other words, that no connec- 
 tion was shown between the pretenses alleged and the obtain- 
 ing of the money. In that case, the indictment after setting 
 forth the false pretenses and negativing the averments, con- 
 cluded as follows: 
 
 " By color and means of which said false pretense and pre- 
 tenses, he, the said Charles B. Orvis, then and there, on," etc., 
 " did unlawfully, feloniously, designedly and falsely obtain 
 from said John F. Smith, forty dollars, then and there being 
 the property of said John F. Smith, contrary," etc. 
 
 That portion of the indictment in the case in judgment is as 
 follows : 
 
 " And by means of said false pretenses, the said Edwin E. 
 Jones did then and there feloniously, falsely, designedly, and 
 with intent to defraud said Jeptha O. Mayfield, obtain from 
 said Jeptha O. Mayfield, a note of the said Jeptha 0. Mayfield, 
 for the sum of four hundred dollars, which note is of the tenor 
 following," etc. 
 
 There is no averment that the said Mayfield was induced, by 
 means of said false token and pretense, to purchase of said 
 Jones the right to sell said lifting jack, and that in considera- 
 tion of said purchase, he executed the note set out in the in- 
 dictment. In other words, there is no connection shown be- 
 tween the false pretenses alleged and the obtaining of said 
 note. It is not shown why or upon what consideration or for 
 what purpose the note was executed. Suppose. Jones did ex- 
 hibit the card of the said firm as genuine, when it was false 
 and forged, and suppose he did pretend that he was the law- 
 ful agent of said firm, and had authority to make contracts in 
 the name and on behalf of said firm for the sale of said lifting 
 jacks, when, in truth and in fact, he was not such agent and 
 had no authority to contract in the name and on behalf of said 
 firm. The facts assumed to exist wholly fail to show any con- 
 sideration for the note, or any reason why it was executed. 
 The necessary connection between the false pretenses and the 
 execution of the note could have been shown by an averment 
 that the said Mayfield, by color and by means of said false 
 
Jones v. State. 379 
 
 pretenses and in reliance iipon the same as true, had been in- 
 duced to purchase from the said Jones, as such agent, the right 
 to sell said machine, for the sum of four hundred dollars, and 
 in consideration thereof, had executed the said note. 
 
 It is also claimed by counsel for appellant that the note set out 
 in the indictment is not the one that was obtained by the false 
 pretenses alleged. The facts are these: After Jones had ob- 
 tained one note from Mayiield, he went back to his house, and 
 upon the ground that such note and contract were written in 
 pale ink, induced Mayfield to surrender up the contract. 
 Thereupon a new note and contract were drawn and executed. 
 They were the same as those surrendered, except written in 
 different and better ink. The execution of the iirst note was 
 obtained by means of the false pretenses alleged, and the second 
 by means of the first note. The point is not entitled to much 
 consideration. There was no consideration for the second note, 
 except that which supports the first. It was, in substance, one 
 transaction, and the fact that the note set out in the indict- 
 ment was executed a few hours after the tirst cannot change 
 its legal character. 
 
 We think the pretenses alleged in the indictment were suffi- 
 cient to deceive a person of ordinary caution and prudence. 
 It is true, that many persons would not have been deceived 
 thereby. They might, by reason of their long experience and 
 greater shrewdness, have detected the fraud, or, having their 
 suspicions excited, they would have communicated to the firm 
 in Cincinnati. Eut laws are not made for the protection of 
 the shrewd and business man only, but for the entire commu- 
 nity. In the enactment of criminal law, the legislature adopts 
 as a standard of intelligence, neither the highest nor the lowest, 
 but the medium. The law only requires the existence of or- 
 dinary caution and prudence. Business could not be tran- 
 sacted withoiit placing confidence in the representations of 
 persons engaged therein. While the law does not encourage 
 blind confidence, it does not expect those engaged in the ordi- 
 nary affairs of life to possess the shrewdness and cunning of 
 the practiced detective. The question therefore is, in such a 
 case as the present, what would a man of ordinary intelligence 
 and caution have done under the facts and circumstances sur- 
 
380 Phalen's Ceiminal Cases. 
 
 rounding this transaction? Would such a man have believed 
 and acted upon such pretenses? If he would, the case is 
 made out. 
 
 For the failure to allege that Mayfield relied upon such pre- 
 tenses as true, and upon the faith thereof, purchased from 
 Jones the right to sell such " lifting jack," and in considera- 
 tion thereof, executed the note set out in the indictment, we 
 must hold the indictment bad. 
 
 The judgment is reversed, and the cause remanded, with 
 directions to the court below to sustain the motion to quash 
 the indictment. The clerk will give the proper order for the 
 return of the prisoner to the jail of Jefferson county. 
 
 The People v. Williams. 
 
 (4 Hill., 9.) 
 
 Falsb Pbbtknsks. — A representation, though false, is not within the 
 statute, unless calculated to mislead persons of ordinary prudence and 
 caution. 
 
 Where, in attempting to defraud another, one is himself defrauded, he 
 cannot complain. 
 
 ' The defendant was convicted for obtaining the signature of 
 Van Guilder to a deed of land, by false pretenses. 
 
 The indictment charged the following facts, viz: That 
 Williams, heretofore, etc., at, etc., did falsely pretend to Van 
 Guilder that one Gray was about to sue him, the said Van 
 Guilder, on a bond which he, the said Gray, then held and 
 owned against Van Guilder, and that the said Gray was also 
 about to foreclose a certain mortgage which he then held and 
 ■owned, and which was a lien upon a farm of Van Guilder, 
 situated, etc., and that he, the said Gray, would take said farm 
 
The People v. Williams. 381 
 
 by such foreclosure away, and deprive the said Van Guilder 
 of the same; and further, that the said Gray had told him, the 
 said Williams, that he was going to sue him, the said Yan 
 Guilder, upon said bond, and was going to foreclose the said 
 mortgage. By means of which said false pretenses the said 
 Williams did then and there, unlawfully, obtain the signature 
 of said Yan Guilder to a certain written instrument, commonly 
 called a warranty deed, which said instrument bore date, etc., 
 and purported to convey to said Williams all that piece or par- 
 cel of land known, etc., [describing it] being the premises 
 upon which the said Yan Guilder then resided; with intent 
 then and there to cheat and defraud him, the said Yan Guilder. 
 Whereas in truth, etc., said Gray was not about to sue said 
 Yan Guilder, on the bond, etc., and was not about to foreclose 
 the said mortgage, etc. ; and whereas in truth, etc., the said 
 Gray had not told the said Williams that he was going to sue 
 him, the said Yan Guilder, upon said bond, or foreclose the 
 said mortgage, etc. 
 
 Pee Ctjeiam. It is impossible to sustain this indictment 
 without extending the statute to every false pretense, however 
 absurd or irrational on the face of it. The charge is of falsely 
 representing to Yan Guilder that he was about being pro- 
 ceeded against for a debt due from him, and that, by means 
 of the representation, his signature was obtained to a deed of 
 lands. How such a result was made to follow from means 
 apparently so inadequate, we are left to conjecture. Looking 
 to the case made by the indictment, Yan Guilder's only ground 
 of com|)laint would seem to be, that in attempting to defraud 
 another he had himself been defrauded. But whatever the 
 facts are in this particular, there can be no doubt, that an exer- 
 cise of common prudence and caution on his part, would have 
 enabled him to avoid being imposed upon by the pretenses 
 alleged ; and if so, the case is not within the statute. See 
 Goodhall's case, Ey. & Mood. Cr. Cas., 461, 463; Eosc. Cr. 
 Ev., 362. 
 
 lHew trial ordered. 
 
382 Phalen's Criminal Cases. 
 
 Note. — In State v. Crowley, and others, 41 Wis., 271, it appeared that 
 the transaction on the part of the person from whom the money was ob- 
 tained was unlawful, and for that reason it was held, there could fee no 
 conviction. 
 
 In McCord v. The People, 46 N". Y., 470, it is said : " The design of the 
 law is to protect those who for honest purposes are induced, upon false and 
 fraudulent representations, to give credit or part with their property to 
 another, and not to protect those who, for unworthy or illegal purposes, part 
 with their goods." 
 
 To the same point, see People v. Olough, 17 Wend., 351, and People v. 
 Stetson, 4 Barb., 151. 
 
 For cases holding a contrary doctrine to the above, see Com. v. Harris, 33 
 Pa. St. (10 Harris), 253; also Com. v. Morril, 8 Cush., 571. 
 
 State v. Stanley. 
 
 (64 Me., 157.) 
 
 False Pretenses. — A pretense that a horse was sound, when the de- 
 f endent knew that he was not sound, is a false pretense within the statute. 
 
 Appleton, C. J. This is an indictment for cheating one 
 Sullivan by means of certain false pretenses. The allegations 
 in the indictment are, that the defendant, in an exchange of 
 horses with one Sullivan, knowingly;, designedly and falsely 
 pretended that his (the respondent's) horse was a sound horse, 
 when, in fact, it was not; that said Sullivan believed said false 
 pretense, and was thereby deceived, and induced to exchange 
 and deliver his horse to the respondeiit, and was thus 
 defrauded. 
 
 The question is, whether or not the indictment sets forth a 
 false pretense within Rev. Stat., ch. 126, § 1. 
 
 The assertion of the soundness of his horse by the defen- 
 dant is the assertion of a material fact. It is false. It was 
 made to deceive and defraud. It accomplished its purpose. 
 
State v, Stanley. 383 
 
 This mucli the demurrer admits. It is not readily perceived 
 why this falsehood is not within the spirit, as well as the letter, 
 of the statute. 
 
 In State v. Mills, 17 Me., 211, the owner of a horse repre- 
 sented to another that his horse, which he offered in exchange 
 for the property of the other, was a horse known as " the Char- 
 ley," when he knew that it was not the horse called by that 
 name, and by such representation obtained the property, of the 
 other person in exchange, it was held that the indictment w as 
 sustained', although the horse said to be " the Charley" was 
 equal in value to the property received in exchange, and as 
 good as " the Charley." So the statement that the property is 
 unincumbered, when the fact is otherwise, will sustain an in- 
 dictment for cheating by false pretenses, notwithstanding there 
 miay have been a warranty, if the false pretense, and not the 
 warranty, was the inducement which operated upon the party 
 to make the exchange. State v. Dorr, 33 Me., 498. In The 
 People V. Crissie, 4 Denio, 625, an indictment that the defen- 
 dants falsely pretended to a third person that a drove of sheep, 
 which they offered to sell him, were free of disease and foot- 
 ail, and that a certain lameness, apparent in some of them, 
 was owing to an accidental injury, by means of which they 
 obtained a certain sum of money on the sale of said sheep to 
 such person, with proper qualifying words, and an averment 
 negativing the facts represented, was held good under the 
 statute against cheating by false pretenses. In Rex v. Jack- 
 son, 3 Camp., 370, it was held to be an offence to obtain goods 
 by giving a check on a banker with whom the drawer kept no 
 cash. So the representation that a bank check was a good and 
 genuine check, and would be paid on presentation, when the 
 drawer had no funds in the bank on which it is drawn, is a 
 false pretense. Smith v. People, 47 JST. Y., 303. So false 
 representations as to quality may constitute a false pretense, 
 for which the person so falsely representing may be indicted. 
 Eeg. V. Sherwood, 40 Eng. Com. Law, 585. So by giving false 
 samples, Reg. v. Abbott, Den. C. C, 379. In Reg. v. Ken- 
 rick, 48 Eng. Com. Law, 49, the false pretense was that the 
 horses were the property of a .private person, and not of a 
 horse dealer, and that they were quiet and tractable, and Lord 
 
384 Phai^en's Ceiminal Cases. 
 
 Denman, C. J., says: "The pretenses were false, and the 
 money was obtained by their means," and the indictment was 
 sustained. In that case the purchaser wanted a quiet and trac- 
 table horse; in the one at bar a sound one was wanted. In 
 that case, as in the one at bar, the false representation was 
 effective to defraud. 
 
 A false pretense may relate to quality, quantity, nature, or 
 other incident of the article offered for sale, whereby the piir- 
 chaser, relying on such false representation, is defrauded. 
 Keg. V. Abbott, 61 Eng. Com. Law, 629. A mere false affir- 
 mation or expression of an opinion will not render one liable. 
 It must be the false assertion of a material fact, with know- 
 ledge of its falsity: Bishop v. Small, 63 Me., 12; Kex v. 
 Heed, 32 Eng. Com. Law, 904. Jfo harm can happen to any 
 one from abstinence in the making of false representations. 
 When made, and material and effective for deception, no suffi- 
 cient reason is perceived why the guilty party should escape 
 punishment. 
 
 Exceptions overruled. 
 
 Indictment adjudged good. 
 
 DicKEESON, Danfoeth, Viegin, Petees, and Libbey, JJ., 
 concurred. 
 
 Kellogg v. State. 
 
 (26 Ohio St., 15.) 
 
 False Pbbtbnses. — Where the lender of money was induced by false 
 pretenses to make the loan, without expecting that the money loaned would 
 be returned in payment, the offence is obtaining money by false pretenses, 
 and not larceny. 
 
 It was proved on the trial, that the witness and the prisoner 
 had first met, and formed a casual acquaintance as passengers 
 
Kellogg v. State. 385 
 
 on a train of ears passing from St. Louis to Cincinnati. After 
 their arrival at Cincinnati they again met at the railroad depot, 
 where the prosecuting witness was about to take another train 
 for his home in Madison county, when the following occur- 
 rence took place, as detailed by the witness: The defendant 
 asked me if I was going to take that train; I said yes. He 
 said he thought he would go on that train, too. Then a man 
 came up to us, and said to the defendant, " If you want to go 
 on that train, you had better get your baggage, and pay your 
 freight bill." The defendant then said, " Confound these fellows, 
 they won't pay me any premium on my gold, and I have no 
 other money to pay this freight bill, and I don't want to give 
 them two hundred and eighty dollars in gold, and get no pre- 
 mium." fie then said to me, "Will you let me have $280 in 
 currency, and I will give you the gold to hold as security, un- 
 til I can go to the bank and draw some money which I have 
 there, and I will then pay you $280 back." He further said, 
 " I must get my freight out to-night, and they won't let me 
 have it until I pay the bill, which is $280." I then told him 
 I would let him have the two hundred and eighty dollars to 
 pay his freight bill ; which I did, and he gave me fourteen 
 pieces of what he said was gold, and which I took for twenty- 
 dollar gold pieces, and I gave him $280 in paper money. He 
 started off, and I examined them, and found that they were not 
 twenty-dollar gold pieces, nor were they gold at all. * * I 
 followed him, but did not overtake him, or see him any more 
 until he was arrested. 
 
 On cross-examination, the prosecuting witness testified as 
 follows : " I delivered my money to him voluntarily. He used 
 no force or violence to obtain it from me. I never expected 
 to get the same money again. He said he would go to the 
 bank and draw some money, and come back and pay me what 
 he borrowed and get the gold." 
 
 McIlvaine, C. J. On the trial below, the jury were pro- 
 perly instructed that the defendant could not be convicted of 
 larceny, if he obtained the possession of the money alleged to 
 have been stolen from the prosecuting witness with his consent 
 if it was further found that, at the time of the transfer of the 
 possession, the right of property in the money also passed 
 25 
 
386 Phalen's Ceiminal Cases. 
 
 from the prosecuting witness to the defendant, although the 
 witness was induced, through the fraud of defendant, to part 
 with the possession and the property in the money. And 
 there was no error in the further instruction: "If you find, 
 therefore, that the mere possession of the money, with the 
 owner's consent, was fraudulently obtained by the defendant, 
 with intent to steal it from the owner, it is larceny.'' 
 
 This last instruction, however, was the predicate of a propo- 
 sition which had been given in explanation of the first instruc- 
 tion, to-wit: " While the manual possession of money may 
 be in one person, the legal technical property may still be in 
 another; and a hailment, or possession of goods and chattels, 
 obtained by a trick or fraud, does not transfer the property to 
 the person practicing the trick or fraud." Whether this, as 
 an abstract proposition of law, be true or false, it was certainly 
 misleading in the case as it was made in the evidence. The 
 jury could not well have understood it otherwise than as a de- 
 claration by the court that tlie transaction, as detailed by the 
 prosecuting witness, amounted to a mere contract of bailment, 
 which left the right of property remaining in the prosecuting 
 witness. 
 
 ISTow if the common law at all recognizes a class of bailments 
 corresponding to the muttnim of the civil law; to-wit, where 
 a loan is made of money, wine, or othej- things that may be 
 valued by number, weight or measure, which is to be restored 
 only in kind of equal value or quantity, it is not true that the 
 right of i^roperty in such bailment remains in the bailor ; but 
 on the other hand, the absolute property passes with the posses- 
 sion, and rests with the borrower. In such cases the fraud of 
 the borrower no more prevents the passing of the title to the 
 thing loaned upon delivery, than does fraud on the part of a 
 purchaser of goods. The contract in either case is not void, 
 but only voidable at the election of the lender or seller. The 
 better opinion, however, seems to be that such a loan is not a 
 regular bailment at common law, but falls moi-e properly un- 
 der the innominate contract, do tit fades, and results in a debt, 
 and not in a trust. 
 
 The testimony before the jury in the court below tended to 
 prove a loan of money from the prosecuting witness to the de- 
 
Kellogg v. S+ate. 387 
 
 fendant, whereby the borrower became indebted to the lender, 
 and assumed to make payment in other money. The testi- 
 m.ony of the witness was, that he voluntarily delivered the 
 money to the defendant, and never expected to get the same 
 money again. It is true he was induced to make the loan 
 through the fraud and false pretenses of the defendant. No 
 doubt a crime was thus committed by the defendant, but it 
 was the crime of obtaining money under false pretenses, and 
 not a larceny. To constitute larceny in a case where the own- 
 er voluntarily parts with the possession of his property, two 
 other conditions are essential: 1. The owner, at the time of 
 parting with the possession, must expect and intend that the 
 thing delivered will be returned to him, or disposed of under 
 his direction for his benefit ; 3, that the person taking the pos- 
 session must, at the time, intend to deprive the owner of his 
 property in the thing delivered. But where the owner intends 
 to transfer, not the possession only, but also the title to the 
 property, although induced thereto by the fraud and fraudu- 
 lent pretenses of the taker, the taking and carrying aAvay do 
 not constitute a larceny. 
 
 In such case the title rests in the fraudulent taker, and he 
 cannot be convicted of the crime of larceny, for the simple rea- 
 son that, at the time of the transaction, he did not take and 
 carry away the goods of another person, but the goods of 
 himself. 
 
 Had the law been thus stated to the jury, there is no doubt 
 the verdict would have been not guilty, as he stood charged in 
 the indictment. 
 
 Judgment reversed, and cause remanded for such further 
 proceeding as may be lawfully had in the premises. 
 
 "Welch, White, Hex and Gtilmoee, JJ., concurred. 
 
 Note. — In State v. Kube, 20 Wis., 317, the defendant obtained from an 
 express agent a package of money, directed to and intended for " Christian 
 Kube," by falsely pretending that it was intended for " Chistiana Kube " 
 his wife. Meld, that the facts constituted the crime of obtaining money by 
 false pretenses, and not the crime of larceny, the agent having parted with 
 the property absolutely, supposing he was delivering it to the husband of 
 the owner. 
 
 See, Murphy V. People, Ante p. 157; Loomis v. People, Ante p. 171 ; Reg. 
 V. Middleton, Ante p. 189. 
 
388 Phalen's Oeiminal Cases. 
 
 People v. Smith. 
 
 (5 Parker C. R., 490.) 
 
 False Prbtbnses. — The fact'that the false pretenses were made for the 
 purpose of collecting a debt, and that the money obtained was applied as 
 payment thereon, furnishes no defence to a charge of obtaining money by 
 false pretenses. 
 
 The case is sufficiently stated in the opinion. 
 
 Cleeke, J. For the purpose of determining the question 
 involved in this case, I will assume that Mrs. Stoasser was in- 
 debted to Smith in the amount which he obtained from her on 
 the 28th of October, 1862. The question, then, is, if by means 
 of false representations or pretenses, by which a creditor makes 
 his debtor believe that the debtor shall receive a new and val- 
 uable consideration, and induces the debtor to jjart with money 
 therefor — the creditor, at the time he takes the money, intend- 
 ing not to give the new consideration, and, accordingly, never 
 giving the debtor the new consideration, but applying the 
 money, as he intended to apply it at the time he received it, to 
 the payment of the old debt — is he guilty of the legal ofEence 
 of obtaining property by false pretenses? 
 
 The counsel for the accused refers to two cases which would 
 seem to sustain the negative of this proposition: the one, Wil- 
 liams' Case, 7 Car & Payne, 354; the other, The People v. 
 G-riffin, 2 Barb. E,., 431. The first of the^e cases was tried at 
 the Brecon Assizes, before Mr. Justice Coleridge and a jury. 
 The circumstances were these: A. owed B. a debt, of M^hich 
 B. could not obtain payment. C, a servant of B., went to A.'s 
 
Peopi.e v. Smith. 389 
 
 wife and obtained two sacks of malt of her, saying tliat B. 
 liad bought them of A. C. knew this to be false, but took the 
 malt to B., his master, to enable him to pay himself the debt, 
 Mr. Justice Colekipge told the jury, if they were satisfied 
 that C. did not intend to defraud A., but only to put it in his 
 master's power to compel him to pay a just debt, it would be 
 their duty to find him guilty. It is ^ot sufficient, he added, 
 that the prisoner knowingly stated that which was false, and 
 thereby obtained the malt; they must be satisfied that the 
 prisoner, at the time, intended to defraud A. The jury ren- 
 dered a verdict of not guilty. In the other case, to which the 
 counsel of the accused has referred, the defendant was con- 
 victed upon an indictment charging him with having written 
 letters to one Heath, threatening to burn and destroy his prop- 
 erty, unless he would send the defendant the sum of sixteen 
 dollars, claimed by defendant to be due to him from Heath. The 
 court below thought that the fact of the indebtedness of Heath 
 was entirely immaterial, and so charged the jury. The supreme 
 court, at the Cayuga general term, January, 1848, granted a 
 _ new trial, holding that the charge was erroneous ; Mr. Justice 
 Welles, in delivering the opinion of a majority of the court, 
 observed : " In order to constitute the oflfence created by 
 statute, the letters must be sent with a view to extort or gain 
 money or property belonging to another. The intent must be 
 to extort or gain. Can it be truly said that a person extorts 
 money which is justly due?" 
 
 Considering the sources from which these decisions have 
 come, they are undoubtedly entitled to re82jectful consideration. 
 But they appear to me so entirely at variance with the well- 
 known policy of the law, that I cannot regard them as of con- 
 trolling authority in this case. That policy is, not to give any 
 man the right of self-redress, except in the well-known in- 
 stances of self-defence, recaption or reprisals, entry on lands 
 and tenements, when another person has, without any right, 
 taken possession thereof, and abatement of nuisances. In the 
 two instances of self -redress, which relates to the repossession of 
 property, the law limits the right only to cases where it can be 
 exercised without force or terror, or any breach of the peace. 
 Othervidse, this right would be inconsistent with the peace and 
 
390 Phalen's Oeiminal Cases. 
 
 good order of society, whicli it is one of the principal purposes 
 of the law to encourage and support. If every man were 
 allowed to redress himself by force and violence, society would 
 fall back into that condition which characterized it before it 
 emerged from the barbarism of the dark and middle ages, 
 when every man and every family undertook to avenge them- 
 selves, and the land " was filled with violence." Instead of 
 the peaceful administration of justice by impartial tribunals, 
 feuds and factions, transmitted from generation to generation, 
 would obstruct all industry, and render any progress in wealth, 
 refinement, or the arts of life, impossible. In the same way, 
 and for reasons equally important, the law discourages the 
 employment of fraud or falsehood in the endeavor to obtain 
 redress. Although there are some duties, such as truth, which 
 are termed duties of imperfect obligation, which the law does 
 not undertake to enforce, yet it will never encourage the viola- 
 tion of any of these duties by sanctioning their violation, even 
 in the endeavor to accomplish a lawful end. This would be 
 legalizing the profligate doctrine that the end sanctifies the 
 means — a doctrine not only abhorrent to conscience and the 
 Divine law, biit at variance with the principles of municipal 
 law, of which the object is, not only to preserve society from 
 open violence, but to discountenance everything that is calcu- 
 lated to encourage strife and dishonesty in the intercourse o£ 
 men with each other.. If it is wise , to forbid men from using 
 force to collect a debt, it is equally wise to forbid them from 
 using fraud to collect it. If strife is not the immediate con- 
 sequence of the latter, it will, if generally sanctioned, lead to 
 it. It will, at all events, inevitably breed imposture and false- 
 hood, which are quite as pernicious to the best and highest 
 interests of society as violence. Besides, is it to be taken for 
 granted that debtors have no rights ? Is it enough for a man 
 to say that another is his debtor? The latter may, as, indeed, 
 in the case before us, have a defence to the claim, the suflB- 
 ciency of which can be properly determined only by the tribu- 
 nals appointed by law to ascertain the truth. It would be 
 unjust, by sanctioning a trick, to deprive an alleged debtor of 
 the attitude in which he stands, and allow his alleged creditor 
 to recover his demand without requiring him to prove it where 
 
People v. Smith. 391 
 
 it is disputed, and giving the former an opportunity of sub- 
 stantiating his defence. 
 
 This is the result whicli such a practice would undoubtedly 
 produce; and though injured creditors may, by such means, 
 occasionally obtain their rights, many debtors would be de- 
 prived of their rights. So that where it is said, in the case 
 above quoted, that " the defendant's object was not to cheat or 
 defraud, but to get that which was honestly his due," this is 
 not the question, but the proper consideration is, is it safe to 
 allow every man to be a judge in his own cause, and, in offici- 
 ating in that capacity, to allow him to resort to false pretenses 
 to accomplish his purpose? If a person having, or pretending 
 to have, a claim against another, is allowed to do what in any 
 other case would render him liable to punishment for obtaining 
 goods under false pretenses, why should he not also be allowed 
 to do what, if he had not such a claim, would render him liable 
 to punishment for the crime of larceny. "Would the law, for 
 instance, recognize his rights to take money furtively out of 
 the desk of his alleged debtor, and apply it to the payment of 
 his debt? He has the opportunity, without force, of doing 
 this, and in the language employed by the court, in The People 
 V. Griffin, " his object is not to cheat or defraud, but to get 
 that which is honestly his due." The intent would be pre- 
 cisely the same as in the case before us, and the only difference 
 would be, that in the one case he obtained money by means 
 which the law, in ordinary cases, calls false pretenses, while in 
 the case I have been supposing, he would obtain it by means 
 which the law, in ordinary cases, calls larceny. But I think 
 he Avould be convicted of larceny in this supposed case. 
 
 The case of The People v. Thomas, 3 Hill E., 169, though 
 going very far, does not sustain the principle asserted by the. 
 counsel for the accused. In that case there was a misrepresen- 
 tation as to the loss or destruction of the note. The note was due, 
 and the maker was willing and ready to pay it. On paying his 
 money he knew that it was to be aj^propriated to the payment of 
 the note. He was not induced by the misrepresentation to 
 give it for any other purpose, on the promise that he was to 
 get another consideration for it. It did not appear from the 
 indictment that Jones sustained any damages by the false 
 
392 Phalen's Ceimimal Cases. 
 
 representations. The case turned upon the sufficiency of the 
 indictment. Whether the maker of the note would or would 
 not be injured by any subsequent disposition of the note was 
 purely speculative. 
 
 I think the recorder fairly and clearly presented the true 
 question to the jury, and properly refused to charge as the 
 prisoner's counsel requested. 
 
 The objections taken to the indictment and the rulings on 
 the evidence are equally untenable. 
 
 The conviction should be affirmed, and the sessions directed 
 to proceed to judgment. 
 
 Justice Barnard concurred. 
 
 Note. — Sutherland, P. J., filed a dissenting opinion, in which he said : 
 " If, when the money was obtained, the prisoner intended to apply it on a 
 just debt, due to him from her, can it be said that he intened to 'cheat or 
 defraud her out of the money ? I think not. To complete th^ statutory 
 crime, the means, the pretenses or representations must not only be false 
 and made designedly, but they must also be made with a particular intent 
 to- wit, to cheat or defraud another." 
 
 The State v. Thatcher. 
 (35 N. J., 445.) 
 
 False Pjrbtbnses. — The offence may be charged either in the words of 
 the act, or there may be such a particular statement of fact as will bring 
 the accused within its operation. 
 
 It is no defence to an indictment for obtaining property by false pre- 
 tenses, that the defendant is able to return such property. 
 
 It is not necessary that the false pretenses should have been the sole in- 
 ducing influence which moved the prosecutor to part with his property. 
 
 Obtaining a note or contract by false pretenses is within the statute. 
 
The State v. Thatchee. 393 
 
 The indictment charges the defendant with having obtained 
 of one Levi Case, the prosecutor, his signature as surety on 
 two promissory notes, payable to John M. Wilson, or bearer, 
 for $500 each, by falsely representing to the prosecutor, with 
 intent to defraud him, that he, the defendant, had paid off and 
 satisfied two notes of prior date, on which said Case was his 
 security, when, in fact, said last mentioned notes were not 
 paid, but were still outstanding, and Case was subsequently 
 compelled to pay them. 
 
 The defendant was convicted at the September Term of 1870, 
 of the Hunterdon Oyer and Terminer, and after trial and ver- 
 dict the court suspended judgment, that the advisory opinion 
 of this court might be taken, as to whether judgment should be 
 arrested or a new trial granted. 
 
 The court charged the jury " that by force of our statute it 
 was a misdemeanor if the defendant obtained by false pre- 
 tenses, the signature of the prosecutor to the negotiable note 
 in question, with intent to put such note in circulation, and 
 actually did put it in circulation ; and that it did not affect the 
 case if the defendant, at the time of procuring said signature, 
 intended to pay the note at maturity." 
 
 And the court refused to charge the following proposition 
 for the defendant: — 
 
 1. That the variance between the false pretense averred and 
 that proved is fatal, and the defendant should be acquitted, the 
 allegation being that "Thatcher said he had paid off the notes," 
 while the proof was " he said they were paid off." 
 
 2. That to sustain the indictment it was necessary for the 
 prosecutor to swear that the false pretense induced him to sign 
 and that he would not have signed but for it. 
 
 The question reserved for the advisory opinion of the court, 
 whether judgment should be arrested or a new trial granted, 
 were argued before Beasley, Chief Justice, and Justices Scud- 
 der and Van Syckel. 
 
 For the state, Mr. Besson and Mr. Van Fleet. 
 
 F(}r defendant, Mr. Allen and Mr. Shipman. 
 
 Van Syckel, J". The correctness of the proposition, that 
 
394 Phalen's Criminal Oases. 
 
 everything necessary to maintain the indictment must be set 
 forth, and that the facts must be proved substantially as laid, 
 will not be questioned. 
 
 It is a general rule that in indictments for misdemeanors 
 created by positive law, the offence may be charged either in 
 the words of the statute, or they may be such a particular 
 statement of facts as will bring the accused within its opera- 
 tion. United States v. Lancaster, 2 McLean, 431 ; People v. 
 Taylor, 3 Denio, 91. 
 
 The averment here is that the defendant, with the design 
 and intent to cheat and defraud Case of a valuable thing, did 
 falsely pretend, knowing such pretense to be false, that the two 
 notes were paid, and that Case was wholly discharged from 
 liability thereon, and by means of such false pretense did pro- 
 cure said Case to become surety on two other notes, whereas 
 in truth, the prior notes were unpaid and outstanding, and said 
 Case was obliged afterwards to pay them. 
 
 Conceding that a person who obtains the signature of another 
 as such surety by the false pretenses is amenable to the pains 
 of the enactment, what essential element of the statutory of- 
 fence is omitted in this indictment? 
 
 The intent to cheat specifically charged, and the false pre- 
 tense by which the guilty intent ripened into a criminal act 
 is expressly stated. 
 
 It is insisted that if the defendant was solvent at the time, 
 and able to pay, no guilty intent could have existed in his 
 mind, and that the want of an averment that he was insolvent, 
 and that the prosecutor had not collected, and could not col- 
 lect from him, the amount which he had paid, is fatal. 
 
 It is not of the essence of the misdemeanor that the defen- 
 dant should be unable to restore that which he wrongfully ob- 
 tains. If, by a false pretense, he had procured the loan of $500 
 in bank notes, his ability to refund the money could not shield 
 him, and it would not be necessary to aver his inability to repay. 
 
 The crime denounced is. the obtaining by false pretenses. 
 
 By the cheat the prosecutor was moved to part with the 
 thing of value, and was thereby placed in a position of jeop- 
 ardy which he would not otherwise have occupied. The fraud- 
 ulent intent was fully manifested in aiding the prosecutor to 
 
The State v. Thatohee. 395 
 
 assume a legal liability which subjected him to the contingency 
 of loss. 
 
 The defendant's ability, or his ultimate intention, to do what 
 the law would compel him, as the principal debtor, to do, can- 
 not save him. 
 
 The charge in the indictment is, that the defendant falsely 
 stated that the two notes had been fully paid and satisfied by 
 him, and that Case was discharged from liability thereon ; and 
 the proof to sustain this allegation is, that the defendant said 
 they were all paid off. Could it truthfully be said that they 
 were paid off if they had been taken up by some third per- 
 son, and were still outstanding as valid obligations? 
 
 If they were paid off they must have been paid off by him, 
 or by some one for him, so that he was fully apprised, by the 
 indictment, of the facts as they were jjroved. 
 
 In The People v. Herricb, 13 Wend., 90, the variance was 
 held to be immaterial where the indictment charged that the 
 false representations were that the defendant had deposited 
 $300 with one Squier, whereas the proof was that he said he 
 had deposited $150. 
 
 It is not necessary that the pretense should have been the 
 sole cause which moved the prosecutor to lend his name. The 
 influences which operate on the mind in most cases are numer- 
 ous and concurrent. In this case, friendship for the defendant, 
 and a desire to aid him in his business, operated influentially; 
 in the case of a merchant, who is induced to part with his 
 goods, the hope of gain would be very potential. In fact it 
 could not often happen that the prosecutor's mind would yield 
 to the false pretense ■ exclusively, and that no other motive 
 would impel it in the same direction. 
 
 It is sufficient, if the jury are satisfied that the unlawful 
 purpose would not have been affected without the influence of 
 the false pretense, added to any other circumstances which 
 might have contributed to control the. will of the injured party. 
 
 This question was fairly submitted to the jury; and, althouo-h 
 the prosecutor did not expressly testify that the false pretense 
 induced him to give his name, his testimony fully warranted 
 the jury in finding that to be the fact. The authorities on 
 this subject will be found collected in a note, section three 
 
396 Phalen's Ceiminal Cases. 
 
 hundred and seventy-five of the second volume of Bishop's 
 Criminal Law. 
 
 The main question in the case is, whether our statute is im- 
 potent to punish the obtaining by false pretenses of a contract 
 of suretyship. 
 
 The note in -this case, and the paper upon which it was 
 written, belonged to the defendant; the prosecutor- merely 
 signed his name as surety, and returned the note to the de- 
 fendant. Was this signature a valuable thing within the 
 meaning of the fifty-second section of our act respecting 
 crimes ? 
 
 This question has been discussed in cases of larceny, where 
 the thing stolen must be of some value to the prosecutor. In 
 Clark's case, Kussell & Eyan's C. C, 181, the defendant was 
 indicted under 2 George II., ch. 25, for stealing reissuable 
 notes, the property of Large & Son, while in the course of 
 transmission to them after they had been paid. It was held 
 that the drawers could not have any valuable property in their 
 own notes, and the prisoner was convicted only of the larceny 
 of the paper and stamps on which they were written. 
 
 In Phipoe's case, 2 East P. C, 599, some of the judges held 
 that the prosecutor's own note could not be said to be of any 
 value to him ; others thought it was of value from the moment 
 it was drawn; but that it never was in the possession of the 
 prosecutor, and that it was obtained by duress, and not by 
 larceny. 
 
 In Walsh's case, Pussell & Kyan C. C, 215, the prisoner 
 was charged with stealing a check drawn by the prosecutor, 
 and the objection that the stolen instrument was of no value to 
 the prosecutor, in his own hands, prevailed, and the defendant 
 was acquitted. 
 
 In Vyse's case, 1 Moody C. C, 218, who was convicted for 
 receiving reissuable notes, knowing them to be stolen, the 
 conviction was sustained. Some of the judges doubted 
 whether the notes were valuable securities, but all agreed that 
 if they were not, they were goods and chattels. 
 
 In Aickle's case, 2 East P. C, 675, the conviction was for 
 the larceny of a bill of exchange drawn by the prosecutor, and 
 accepted by another. 
 
The State v. Thatcher. 397 
 
 In Rex V. Metcalf, 1 Moody 0. C, 433, this point was 
 directly adjudicated. The defendant, having been convicted 
 of the larceny of a check drawn by the prosecutor, the judge 
 was induced, by a reference to Walshe's case, to reserve for 
 the opinion of the judges the question whether the check in the 
 hands of the drawer was of any value to hira, and could be the 
 subject of larceny. Lord Deman, C. J., Tindal, C. J., and Cole- 
 BiDGB affirmed the conviction, Justice Littledale alone doubt- 
 ing. And in Heath's case, 2 Moody C. C, 33, which was, in all 
 respects like the one last cited, the authority in Metcalf's case 
 acknowledged without a dissenting opinion. The supreme 
 court of Alabama, State v. Wilson, 1 Porter, 118, ruled, that 
 the prosecutor's own note was not the subject of larceny. In 
 reaching this conclusion, Phipoe's case was relied upon by the 
 court, no reference having been made to the later cases of 
 Metcalf and Heath. 
 
 In the People v. Loomis, 4 Denio, 380, where the defendant 
 was tried for the larceny of a receipt, Justice Bbakdsley said, 
 " that although a receipt was the subject of larceny under the 
 Kew York statute, it must be made effective by being issued 
 or delivered before it can become a valuable private instru- 
 ment. It must be, when stolen, an evidence of some right in 
 action, or an instrument by which a right or title to real or 
 personal property was in some manner effected." 
 
 Though a receipt differs essentially from a promissory note, 
 which becomes effective in the hands of a bona fide holder 
 without notice, yet it must be admitted that a receipt did affect 
 some dema,nd or right of the complainant. In the hands of 
 the defendant it was prima facie evidence that the obligation 
 recited in it was discharged; and it shifted the burden of proof, 
 and it carried with it this operation from the very moment it 
 was wrongfully taken. 
 
 In Kexv. Danger, Dearsley & Bell's 0. C, 307, a case more 
 directly in point, it was held that Danger could not ^e con- 
 victed under 7 and 8 George IV., ch. 29, for inducing the 
 prosecutor, by false pretenses, to write an acceptance on a j^iece 
 mercantile paper. It was not questioned in this case that the 
 accejjtance of another person would have been a valuable secu- 
 rity within the meaning of that act, but Lord Campbell said : 
 
398 Phalen's Criminal Cases. 
 
 " The thing obtained must have been the property of some one 
 other than the prisoner. Here there is great difficulty in say- 
 ing that, as against the prisoner, the prosecutor had any prop- 
 erty in the document as a security. While it was in the hands 
 of the prosecutor it was of no value to him." 
 
 In 9 "Wend., 182, Stone was charged with false pretenses, in 
 obtaining the indorsement of one Filley to a promissory note. 
 The words of the N"ew York statute, are " money, goods, or chat- 
 tels, or other effects whatsoever." The offence was committed 
 before the passage of the act making it indictable to obtain, 
 by false pretenses, the signature of any person to a written 
 instrument. The court. Justice Sutheeland delivering the 
 opinion, held that the words " other effects whatsoever " were 
 as comprehensive as the words " whatever kind of valuable 
 property," in the 52nd George III., and that the obtaining 
 from the maker his own note vas punishable, if the defendant 
 subsequently passed the note and made it productive. The 
 only doubt was, whether an indictment would lie where no use 
 had been made of the security. 
 
 In the I'eople v. Genung, 11 Wend., 19, the same judge 
 held that the effect of the latter statute was to make the crime 
 complete as soon as the signature was obtained. 
 
 In this state of judicial decision, we are free to adopt such 
 construction of our statute as will best conform to sound rules 
 of interpretation. The rule of strict interpretation for crim- 
 inal statutes does not hinder the court from searching for the 
 legislative will; nor is the rule violated by giving words, in 
 some cases, their full or the more extended of two meanings, 
 as the wider popular, instead of the narrower technical one. 
 
 Cases are not wanting where some elasticity has been given 
 to criminal statutes, in order to extend them to the mischief 
 obviously aimed at. Thus a jail has been held to be an 
 inhabited dwelling-house, within the statute respecting arson. 
 
 People V. Cotteral, 18 Johns., 115, and the English statute, 
 7 George II., ch. 22, against the forging of a warrant for the 
 payment of money, was not restricted in its interpretation to 
 commercial transactions, but extended to an order drawn by a 
 •justice of the peace on a high constable, to pay a reward. Rex 
 V. Graham, 2 East P. C, 945. 
 
The State v. Thatcher. 399 
 
 In Eugland courts have been very astute, and justly so, in 
 favorem vltce, in their interpretation of criminal statutes; but, 
 in this country, the tendency is to relax this strictness and 
 refinement as inapplicable to cases of mere misdemeanor, and 
 offences not capital. The course of legislation on this subject 
 shows an intention to bring within the reach of the statute 
 every kind of property. 
 
 The English statute of 30 G-eorge II., ch. 24, which used 
 the words "goods, wares, and merchandise," was found de- 
 fective in not providing against choses in action by false pre- 
 tenses. This defect was remedied by 7 and 8 George TV., ch. 
 29, which used the words " any chattels, money, or valuable 
 security." 
 
 Our legislators, who framed our act in view of the early 
 English statutes, were not content with the language there 
 used, but, with the design of amplifying its operation, em- 
 ployed the words, " money, wares, merchandise, or other valu- 
 able thing." Om- statute, having been passed prior to 7 and 8 
 George TV., and our law-makers having adopted more com- 
 prehensive terms than that act contains, no argument can be 
 drawn from the fact that the English Parliament, by subsequent 
 enactment, declared it indictable to obtain by false pi-etense the 
 signature of any person to a written instrument. " Valuable 
 thing " is more comprehensive than " valuable security." Every 
 valuable security is a valuable thing, but many valuable things 
 are not valuable securities. Mere tangible things were not 
 alone meant, for the words prior to valuable things described 
 them. 
 
 The legislature intended to denounce as a crime the obtain- 
 ing by deceit of every valuable thing of a personal nature. 
 " Other valuable things " includes everything of value. That 
 it embraces the promissory note of a third person is settled in 
 State V. Tomlin, 5 Dutcher, 13. 
 
 Is the maker's own note or contract of siiretyship a valuable 
 thing? The signing of the name was an act; the name, when 
 signed, was a thing. "Was it a thing of any value? While it 
 remained locked up in his secretary, it was of no value to the 
 maker, but eo instanti it passed out of his hands by the fraud • 
 it became impressed with the qualities of commercial paper 
 
400 Phalbn's Criminal Cases. 
 
 and possessed to Mm the value which it might cost him to 
 redeem it from a hona fidt holder. The moment Case deliv- 
 ered these signatures, he assumed a liability to pay $1,000, 
 contingent upon their being negotiated. Can it, therefore, be 
 said that a paper, which imposed such a risk, was of no value 
 to the maker ? Its value to him consisted not in what it would 
 put ia his pocket if he retained it, but in what might be taken 
 out of his purse by the delivery of it to the defendant. 
 
 This view was evidently taken in the Common weath v. 
 Kand, 7 Metcalf, 475, which was a case of larceny of bank notes 
 which had been redeemed by the bank, in which Chief Justice 
 Shaw said: "The bank was the owner of the paper, which 
 was of some value to be reissued; but a consideration of more 
 importance is, that notwithstanding the bills were stolen, yet, 
 on being passed to a hona fide holder, the bank would be 
 bound to pay them as if they had not been redeemed. The 
 injury to the bank, therefore, is the same." 
 
 Under the contrary view, the fraud-doer, instead of obtain- 
 ing from his victim, by false pretenses, his bank notes, may 
 defy the law, by resorting to the simple device of getting his 
 check and drawing the money at bank, or he may practice 
 deception with impunity upon a bank by drawing their own 
 circulating notes. Under our humane system of criminal law, 
 judicial ingenuity should not exhaust its resources to reach an 
 interpretation in favor of the wrong. 
 
 In common and legal understanding, the language of our 
 act is broad enough to comprehend the maker's own negotiable 
 note or contract of suretyship, by which a piece of paper, 
 before worthless, is stamped with an exchangeable value. The 
 policy of the law applying with equal force to such securities, 
 there is no rule of interpretation which forbids us to carry the 
 enactment to the extent of the mischief. 
 
 The suggestion that, sincfe the practice of endorsing com- 
 mercial paper has become so frequent, it will lead to dangerous 
 results to hold this to be an indictable offence, is not entitled 
 to much consideration, in view of the fact that there has hith- 
 erto been no abuse of the law in its applicaton to the number- 
 less daily ti'ansactions in the community, which are unques- 
 tionably within its terms. 
 
Eeg. v. Hazelton. 401 
 
 In my opinion, the court below should be advised to deny a 
 new trial. 
 
 The Chief Justice and Justice Sctjddee concurred. 
 
 Note. — In People v. Miller, 2 Parker C. R., 197, the defendant was 
 charged with having obtained the prosecutor's endorsement to a note by 
 false pretenses. Upon the trial the prosecutor was permitted to state, as a 
 witness, what influence th^ representations of the defendant had upon 
 him, by way of inducing him to endorse the note. E'dd, that the evidence 
 was properly received. 
 
 In re Snyder, 17 Kan., 543, it was held, that it Tvas not necessary to show 
 that the owner had been induced to part with his property solely and entirely 
 by pretenses which were false ; that it was sufficient, if they were part of 
 the moving cause, and, without them, the defrauded party would not have 
 parted with the property. 
 
 In State v. Kube, 20 Wis., 217, the rule that false pretenses must be such 
 as are calculated to deceive a person of ordinary prudence and discre- 
 tion, was followed, and also, that it must apjDear that it was solely by means 
 of them that the fraud was consummated. 
 
 See People v. Haynes, ante p. 333. 
 
 In Com. V. Coe, 115 Mass., 481, it was held, no defence to an indictment 
 for obtaining money by false pretenses, that the prisoner intended to repay 
 it, and was able to do so. 
 
 Reg. v. Hazelton. 
 
 (13 Cox C. C, 7.) 
 
 False Phetknsbs. — Where goods were fraudulently obtained by giving 
 for thein in payment, as cash, checlis on some banks where the prisoner 
 had only trifling sums, and on others where his account was overdrawn, he 
 falsely pretending that he then had money in the banks to the amount of 
 the sums mentioned in the checks, and that he had authority to draw the 
 checks on the banks ; and that the checks were good and valid orders for 
 the -payment of the amount thereof. Held, that the above evidence was 
 sufficient to support the false pretenses that he had authority to draw the 
 checks, and that they were good and valid orders for the payment of the 
 amount thereof. 
 26 
 
402 Phaleh's Criminal Cases. 
 
 Case reserved for the o^jinion of this court by Common Ser- 
 geant of London. 
 
 At the October sessions of the Central Criminal Court, 
 William Hazelton was tried on an indictment for obtaining 
 goods by false pretenses. 
 
 First count. That the defendant, on the 4th of April, 1874, 
 did unlawfully and knowingly, falsely pretend to Robert Young 
 and another, that he then had money to the amount of £5 in 
 a certain bank called the Biskbeck Bank, at Nos. 29 and 30, 
 Southampton Buildings, Chancery Lane, in the county of Mid- 
 dlesex. That he then had authority to draw a check upon that 
 bank for the sum of £6 ; and that a certain paper writing, 
 which he then produced and delivered to the said Robert 
 Young and another then, was a good and valid order for the 
 payment of jnoney, to wit, for £5, and that by means of those 
 false pretenses he unlawfully and fraudulently obtained from 
 them thirty-three shirts, with intent to defraud. 
 
 Second count. Obtaining from the same persons, on the 
 7th of April, forty shirts, by exactly similar false pretenses, in 
 respect of a check for £8 8s., given by him. 
 
 Third count. Obtaining, on the 29th of August, a pair of 
 boots from Edward Sayer and another, by falsely pretending 
 to them that he then kept a banking account with the Isling- 
 ton Branch of the London and County Bank; that he then 
 had money to the araoi^nt of £2 9s. in that bank; that he then 
 had authority to draw a check upon that bank for £2 9s., and 
 that a certain paper writing, which he then produced and de- 
 livered to the said Sayer and another, was then a good and 
 valid order for the payment of £2 9s. 
 
 Fourth count. Obtaining from the "Wood Street Warehouse 
 Company, six dresses called costumes, on the 31st of August, 
 by falsely pretending to them that he then kept a banking 
 account with the Islington Branch of the JSTational Provincial 
 Bank of England. That he then had. money to the amount of 
 £3 9s. in that bank. That he then had authority to draw a 
 check upon that bank for £3 9s. ; and that a certain paper 
 vA-iting, which he then produced and delivered to the Com- 
 pany then, was a good and valid order for the payment of £3 9s. 
 
 Fifth count. Obtaining on the 1st of September, from the 
 
Keg. v. Hazelton. 403 
 
 said "Wood Street Warehouse Company, thirteen dresses called 
 costumes, and nineteen petticoats, by exactly similar false pre- 
 tenses to those in the fourth count, in respect of a check for 
 £9 lis. 6d., which he then gave them in payment. 
 
 Sixth count. Obtaining on the 1st of September, from W. 
 Marshall Candy and another, thirteen shawls, by exactly simi- 
 lar false pretenses, in respect of a check for £2 14s. 2d., which 
 he then gave in payment. 
 
 Seventh count. Obtaining on the 2d of September, from 
 the said "Wood Street "Warehouse Company, 112 petticoats, by 
 exactly similar false pretenses, in respect of a check for 
 iE19 6s. Id., which he then gave in payment. 
 
 Eighth count. Obtaining on the 2d of September, from the 
 said "W. M. Candy and another, 126 shawls, by exactly similar 
 false pretenses, in respect of a check for £22 lis. 6d., which 
 he then gave in payment. 
 
 It was proved in evidence that the prisoner opened an ac- 
 count at the Birkbeck Bank on the 30th of June, 1873, with a 
 payment to his credit of £22 10s., and had a check book given 
 to him for his use containing fifty blank checks. That on the 
 9th of December, 1873, the balance in his favor in the Birk- 
 beck bank was 5s. 8d., and that the account remained unaltered 
 up to the 27th of June, 1874, when he applied to the Birkbeck 
 Bank for a new check book, which they refused, and then he 
 withdrew 6s. He could have had the 3d. That thirty -three of 
 his checks were honored, and about seventeen refused, by the 
 Birkbeck Bank. That he would not have been allowed to over- 
 draw his account at the Birkbeck Bank. 
 
 It was also proved that the prisoner opened an account at 
 the Islington Branch of the London and County Bank, on the 
 2d of June, 1874, with a payment to his credit of £27, and 
 had a check book given to him containing twenty -five checks. 
 That on the 6th of July following, a balance of 7s. 4d. stood 
 there to his credit. That on the 23d of August following the 
 account was, by accident, allowed to be overdrawn; and that 
 transaction was the last. His checks on that bank afterwards 
 presented and dishonored. 
 
 It was also proved that, on the 8th of July last, the prisoner 
 opened an account at the Islington Branch of the National 
 
404 Phalen's . Cbiminal Cases. 
 
 Provincial JBank of England, with a payment to his credit of 
 £30, and had a check book given to him containing twenty- 
 four checks. He drew out £25 by a check in favor of Mrs. 
 Hazelton, and on the 23d of July his account was overdrawn 
 by 22s. On the 24th of July notice in writing was given to 
 him by the bank that his account was overdrawn, and request- 
 ing his attention to it. The account was unaltered until the 
 3d of September, when he paid in £2 15s. and £15 5s., leaving 
 £16 18s. to his credit. On the next day, 4th of September, 
 the» sum £14 16s. was drawn out by a check in favor of his 
 wife, leaving £2 2s. to his credit. Seven of his checks, alto- 
 gether, were paid, of which five were in favor of his wife, 
 Mrs. Hazelton. Some others of his checks were presented and 
 dishonored. 
 
 The following evidence was also adduced: 
 
 On the 2d of April, 1872, the prisoner went to Messrs. 
 Young and Kochester's, and ordered over two dozen shirts, 
 and called again for them about two o'clock in the afternoon 
 of the 4th, and said he wished to pay ready money ; and an 
 invoice was made out, and discount deducted from the invoice, 
 making the sum of £7 5s., and the prisoner gave a check on 
 the Birkbeck Bank for £5, and paid the balance of £2 5s. 
 in cash. 
 
 The 4th of April was Saturday, the 5th was Sunday, and 
 the 6th was a bank holiday, so that the prisoner's check could 
 not be presented for payment until the 7th. Early in the 
 morning of the 7th, before ten o'clock, a. m., the prisoner went 
 again to Young & Rochester's, and ordered other goods to the 
 amount of £8 8s., and said he wished to pay ready money, 
 and discount was allowed to-him. He gave his check on the 
 Birkbeck Bank for the amount, and took away the goods. 
 
 Both the above checks were presented to and dishonored by 
 the Birkbeck Bank. 
 
 Some of the above goods were pawned by the prisoner, in 
 the name of "Williams, on the 13th and 17th of April, for 
 £1 68., with a pawnbroker who knew him well for two or three 
 years before, in that name, and who said his dealings were satis- 
 factoi-y, and that the goods pawned by him were usually re- 
 
Eeg. v. Hazelton. 405 
 
 deemed; but at the time of tlie trial before me that pawnbroker* 
 had £35 worth of goods in pawn by the prisoner. 
 
 Other of the above goods were pawned by prisoner on the 
 30th of April, loth uf August, and 9th of September, with 
 another pawnbroker, to whom prisoner was known for two 
 years, and who said that he usually redeemed the goods 
 pawned. 
 
 Other of the same goods were pawned with another pawn- 
 broker, to whom prisoner was known, aad who said that he, 
 in all cases, redeemed the goods pawned by him ; but that he, 
 the pawnbroker, had, at the time of the said trial before me, 
 goods to the amount of £12 in pawn by the prisoner. 
 
 On Saturday, August 29, last, the prisoner went to Messrs. 
 Sayer & Healey's, and bought for ready money, with discount, 
 two pairs of boots for £2 93., and gave his check for that sum 
 ■on the London and County Bank, Islington, which was dishon- 
 ored on presentment on the 31st of August. He afterwards 
 returned one pair of the boots, saying that they were too heavy 
 for him. 
 
 On September 1st, last, the prisoner went to Messrs. Candy 
 •& Co., and bought as a cash transaction, with discount, thirteen 
 shawls, in payment for which he gave his check for £2 14s. 2d. 
 on the Islington Branch of the ISTational Provincial Bank of 
 England; and on the 2d of September last, at 5.30 p. m., he 
 again went to Candy's, and saying that he had sold some of his 
 previous day's purchase from them, he bought as a cash trans- 
 action, with discount, ten and one-half dozens of shawls, in 
 payment for which he gave his check on the same bank for 
 £22 lis. 6d. Both these checks were dishonored, and the 
 greater portion of the shaWls were pawned by the prisoner on 
 the 3d of September, and afterwards redeemed and repawned 
 with pawnbrokers to whom he was well known. 
 
 On the 31st of August, and on the 1st and 2d of September 
 last, the prisoner went to the "Wood Street Warehouse Com- 
 pany, and bouglit, on each occasion as cash transactions, certain 
 dresses and skirts, and took them away with him, and gave in 
 payment on those days, respectively, three checks on the 
 Islington Branch of the ]S"ational Provincial Bank for £3 9s., 
 £9 lis. 6d., and £19 6s. Id., each of which was dishonored. 
 
4:06 Phalen's Gbiminai Cases. 
 
 On the 3d of September he pawned 103 of the skirts with a 
 pawnbroker, to whom he was known, for £13 10s. 
 
 The prisoner, after the dishonor of the foregoing checks,, 
 said to the several holders that he had been disappointed in his 
 expectations of receiving money, and that he would take up 
 the check in a few days. 
 
 Evidence was also given of the dishonor of about twelve 
 other checks drawn and given by the prisoner in payment for 
 other -goods bought by him, and of his unperformed promises^ 
 after dishonor, to the holders of the checks to take them up. 
 
 A detective police officer proved that he went to prisoner's. 
 house on the 16th of September, and got in at the back 
 through the garden ; that the prisoner tried to escape, but was- 
 apprehended. He was told he was taken for obtaining goods- 
 from Candy's, and he replied : " It's debt, not a fraud, and 
 you can't make a fraud of it." Being asked if he had any 
 duplicates in the house, he said, " ISTo." The officer found,, 
 however, on search, 186 duplicates and pawnbrokers' contract, 
 notes, representing together pawnings and deposits to the 
 amount of about £330. The officer also found invoices from 
 various firms, and the prisoner's check books on the three 
 above-mentioned banks, and his pass book of the Birkbeck 
 Bank. Scarcely a single article of furniture was found in the 
 house, but amongst the duplicates found were some for house- 
 hold furniture pawned by the prisoner. 
 
 It appeared, therefore, by the evidence, that at the time he 
 gave in payment the two checks on the Birkbeck Bank for £5 
 and £8 8s. mentioned in the first and second eoimts, the pris- 
 oner's account there was still an open one, but the balance 
 in that bank to his credit waB 6s. 3d. only, and that his check 
 for sums exceeding that balance were dishonored, and he would 
 not have been allowed to overdraw. 
 
 That at the time he gave in payment the check for £2 9s. 
 on the London and County Bank, mentioned in the third count,, 
 his account there was overdrawn, and his check on that bank 
 had been dishonored. 
 
 That at the time he gave in payment the checks for £3 9s.,, 
 £9 lis. 6d., £2 14s. 2d., 19s., 16s. Id., and £22 lis. 6d., on the 
 Islington Branch of the National Provincial Bank, mentioned 
 
Keg. v. Hazelton. 407 
 
 in the fourth, fifth, sixth, seventli, and eighth ' counts, his ac- 
 count there was overdrawn, and he had notice of it; that his 
 account remained overdrawn from the 23d of July to the 3d 
 of September, when he paid in £18, and on the 4th of Sep- 
 tember drew out £14 16s. for his own use, leaving two guineas 
 to his credit, subject to the payment thereout of some small 
 charges. His checks, mentioned in the indictment, on the 
 bank, were dishonored. 
 
 It also clearly appeared that many of the prisoner's checks, 
 other than those mentioned in the indictment, on the before- 
 mentioned banks, had been and were afterwards dishonored. 
 
 I doubted, upon the decided cases, whether, in point of law, 
 a man who gives a check in payment, under the circumstances 
 before mentioned, does by the mere fact of giving the check, 
 without saying more than that he wishes to pay ready money, 
 makes either of the false pretenses alleged in the indictment, 
 viz., first, that he then has money to the amount of the check 
 in the bank upon which it is drawn; secondly, that he then 
 has authority to draw upon the bank for that sum. ; thirdly, that 
 the check which he gives is a good and valid order for the pay- 
 ment of its amount; fourthly, that he then has a banking 
 account with the bank upon which his check is drawn, and 
 where his account is overdrawn. 
 
 I summed up the case to the jury, and they found that the 
 prisoner did not intend, when he gave the respective checks 
 mentioned in the indictment, to meet them, and that he in- 
 tended to defraud. 
 
 A verdict of guilty was thereupon recorded, and I abstained 
 from passing judgment, and reserved for the opinion of the 
 court, for consideration of crown cases reserved, the question 
 whether there was any evidence to go to the jury of the pris- 
 oner having made any of the false pretenses mentioned in the 
 indictment? If there was, the conviction is to be confirmed. 
 If there was not, it is to be reversed. 
 
 Thomas Chambers, 
 Common Sergeant of London. 
 
 No counsel appeared to argue for the prisoner. 
 
 Bksley, for the prosecution. The conviction is right. The 
 jury have found that the prisoner did not intend, when he iravs 
 
408 Phalen's CEiMiNAi Cases. 
 
 tlie several checks, to meet them, and that he intended to defraud. 
 Lusii, J. It can hardly be maintained that a person, by giving 
 a check, conveys the representation that he has, at the moment 
 of giving it, funds to the amount of it in the bank. Each case 
 dej)ends on its own circumstances. In this case, the pris- 
 oner knew that the checks would not be met. In Eex v. Jack- 
 son, 3 Gamp., 371, Baley, J., said: "The point had been 
 recently before the judges, and they were all of opinion that 
 it is an indictable offence fraudulently to obtain goods by giving 
 in payment a check upon a bank with whom the party keeps 
 no cash, and which he knows will not be paid." Beett, J. 
 There is no doubt here of the fraudulent intent. The question 
 is, whether the jjrisoner made a fraudulent representation. 
 The indictment alleges that the prisoner falsely represented 
 that he then had authority to draw a check upon the bank, and 
 also that the check was a good and valid order for the payment 
 of money. The giving of the checks fraudulently proves those 
 representations. In Reg. v. Giles, Si L. J., 53, M. C, Black- 
 BTJEN, J., says: "It is not requisite that the false pretense 
 should be made in express words, if the idea is conveyed." 
 Pollock, C. B. You may contend that the giving of the check 
 was a representation that it would be honored when presented, 
 whereas he well knew that it would not. Certainly; for the 
 prisoner, when he gave the check, said that he wanted to pay 
 cash, and so obtained a discount. In Lockett's case, Leach 
 C. C, 53, it was held that a forged draft on a banker was an 
 order for the payment of money. In Reg. v. Parker, 2 Moo. 
 C. C, 1, 7 Car. & P., 825, the majority of the judges held 
 that a count, which charged that the prisoner pretended that a 
 certain paper writing which he then produced, and was as fol- 
 lows, setting out a check, was a good and genuine order for 
 payment of the sum of, etc., was proved by the following facts: 
 TTie prisoner went and bought a watch of the prosecutor, and 
 gave in payment of it a post-dated check on a bank where he 
 had no funds, falsely representing to the prosecutor that he 
 had an account with the bankers on whom the cheek was 
 drawn, and that he liad a right to draw the check, though he 
 postponed the date for his own convenience. So, in the pres- 
 ent case, the prisoner fraudulently represented in each trans- 
 
Reg. v. Hazelton. 409 
 
 action that he wished to pay ready money, and gave the checks. 
 It is submitted, therefore, that the second and third false pre- 
 tenses charged were substantially proved. 
 
 Kelly, C. B. I am of opinion that the conviction must be 
 affirmed. Two questions arise in the case. The first is, 
 whether, on the facts and documents proved, the prisoner has 
 expressly or impliedly, fraudulently made the representations 
 on which the goods were obtained; the second, whether any 
 one of the representations alleged is a false pretense within 
 the statute. The indictment alleged three false representations. 
 First, that the prisoner falsely pretended that he then had 
 money to a certain amount in the bank; secondly, that he 
 then had authority to draw a check upon the bank for that 
 amount; thirdly, that a certain paper writing was a good and 
 valid order for the payment of that amount. If the case had 
 rested upon the first pretense alone, there woiild have been 
 considerable difficulty in supporting the conviction, because 
 there are many cases in which no such rej)resentation can be 
 implied from the mere giving of a check, as a general rule, 
 for persons of undoubted substance and respectability often 
 draw checks exceeding the balance to their credit at their 
 bankers, and which are paid by thefr bankers. We may, there- 
 fore, put that representation out of the case. The second 
 alleged pretense is, that the prisoner then had authority to 
 draw a check upon the bank for the amount. That is an im- 
 portant representation, and arises when a man gives a check in 
 paj'ment for goods, or in satisfaction of any other demand; 
 and I think that false representation was proved in this case. 
 But if there is any doubt about the case, it is removed when 
 we look at the third pretense, that the paper writing produced by 
 the prisoner was a good and valid order for the payment of the 
 sum therein mentioned. The case of Eeg. v. Parker expressly 
 decides that this is a false pretense within the statute. Then 
 conies the main question : is it to be implied from the fact 
 proved that the prisoner made all or any of these false repre- 
 sentations? As regards the second and third false pretenses, 
 it is perfectly clear that the prisoner knew at the time when 
 he gave the checks that he had no authority to draw checks 
 
4:10 Phalen's Criminal Cases. 
 
 for the amounts specified therein, and that he well knew that 
 they would not be paid. Those false pretenses were, therefore, 
 proved, and the conviction must be affirmed. 
 
 Lush, J. I am of the same opinion. I also think that the 
 mere giving of a check does not convey a representation that 
 the drawer has money to the amount of the check in the banker's 
 hands, at the time of giving it. Many persons give checks ex- 
 ceeding their balance at the bank at the time, in the expectation 
 of their being able to pay in money to meet them before they 
 are presented. In this case the prisoner ordered and obtained 
 goods, saying he wished to pay ready money; invoices were 
 made out and discounts deducted, and prisoner gave checks 
 for the amount. I think that amounted to a representation 
 that the checks were equivalent to cash, and, therefore, that the 
 false pretense that the checks were good and valid orders for 
 the payment of money was proved. 
 
 Beett, J. I am of the same opinion. The learned common 
 sergeant in this case doubted, upon the decided cases, whether 
 in point of law a man who gives a check in payment, under 
 the circumstances before mentioned, does by the mere fact of 
 giving the check, without saying more than that he wishes to 
 pay ready money, makes either of the false pretenses alleged 
 in the indictment. The question reserved for us is, therefore, 
 pointed to that part of the necessary proof on the trial of an 
 indictment for false pretenses, the proof of a false represen- 
 tation of a fact which, if it had not been false, would have 
 been an existing fact. The common sergeant has pointed to 
 the fact on which he wants the opinion of this court. Now 
 the meaning of a representation to another person cannot de- 
 pend upon the state of mind of the person making the repre- 
 sentation, but must depend on what idea he conveys to the 
 mind of the other person. It is common knowledge that per- 
 sons have authority from a bank to draw checks to a consid- 
 erable amount, when they have no money at the bank. I am 
 of opinion, therefore, that the mere giving of a check does not 
 convey a representation that the drawer has money at the bank. 
 Then, as to the second false representation, that the prisoner 
 
Reg. v. Hazelton. 4:11 
 
 had authority to draw upoa the bank for the amount in the 
 checks. Now, if the giving of a banker's check does not 
 mean that, what does it mean? Then, as to the third false 
 representation, but for the case of Eex v. Parker, I should 
 have doubted whether the mere giving of a check was a repre- 
 sentation of an existing fact, that the check was a good and 
 valid order for the payment of money. 
 
 QuAiN, J. I am of the same opinion. I think that the 
 giving of the checks in this case amounts to a representation 
 that they were good and valid orders for the payment of the 
 sums therein mentioned, on the authority of Rex v. Parker, 
 which was decided by a majority of the judges. The only 
 difference in the facts is, that the prisoner in that case had no 
 funds at all at the -bank, whereas in this he had a few shillings. 
 
 Pollock, B. I am also of opinion that this conviction 
 should be affirmed. I think that* there was evidence that the 
 prisoner made the false representations thirdly charged, that 
 the checks when given were good and valid orders for the pay- 
 ment of the sums specified therein. 
 
 Conviction affirmed. 
 
 Note. — In Smith v. People, 47 N. Y., 303, it was charged, that the de. 
 fendant, with intent feloniously to cheat and defraud one Stark, did know- 
 ingly, etc., represent to him that a certain instrument in writing for the 
 payment of money, commonly called a bank clieck, which he then and 
 there delivered to him, purporting to have been drawn by one Smith, upon 
 the Ocean Bank of the city of New York, for the sum of $140, was a good 
 and genuine check, and that he, plaintiff in error, had money on deposit 
 in said bank, and said check would be paid on presentation, the said Stark 
 then and there believing the said false pretenses so made and used, as afore- 
 said, by the said Smith. 
 
 Gkover, J., said: "The only question is upon the indictment as to the 
 sufBciency of the representations to bring the case within the statute. They 
 clearly are. The substance is, that the money was on deposit in the bank 
 for the payment of the check upon presentation, in the usual course of busi- 
 ness, and that the check was, therefore, a good and available security to Stark 
 for the payment of the purchase-money for the cigars, then sold and deliv- 
 «red by Stark to him, in reliance upon these representations." 
 
412 Phaxkn's Ceiminal Cases. 
 
 State v. Jones. 
 
 (70 N. C, 75.) 
 
 False Pretenses. — Deceiving an agent in tlie execution of his appro- 
 priate business, wliich he is employed to transact, is the same as deceiving 
 the principal. 
 
 The indictment charges that the defendant, intending to 
 cheat and defraud one Collins, unlawfully, knowingly, etc., 
 sold him four barrels of light wood chips, billets of wool, and 
 dirt, covered on top with turpentine, for four barrels of mer- 
 chantable turpentine, for which he obtained ten dollars. 
 
 It appeared that defendant carried it to the store of Collins, 
 at the time in the keeping of his son, twelve years old, and 
 proposed to sell him the four barrels of turpentine, stating 
 that it was all right; that he, the son, "need not examine it, 
 but might take his word for it that it was good at the bottom 
 of the barrels as it was at the top;" that when the barrels were ' 
 emptied, they were found to contain a small quantity of tur- 
 pentine, the rest light wood chips, and dirt. 
 
 The defendant's counsel asked the court to charsre: 
 . " That unless the agent of Collins informed him of the 
 alleged false pretenses before he, the agent, delivered the goods 
 to the defendant, the jury cannot convict; 
 
 That if the jury think that the prosecutor had the means of 
 ■detection at hand, and did not use it, the jury cannot convict; 
 
 That if the jury think that there was a warranty, and that 
 the prosecutor relied upon that warranty, they cannot convict; 
 
 That the jury must believe that the prosecutor relied upon 
 
State v. Jones. US- 
 
 r 
 
 the false pretenses, believing them to be true, or they cannot 
 convict ; 
 
 That it is for the jury to say, whether or not, the prosecutor 
 had the means at hand to detect the fraud." 
 
 All of which instructions the court refused to give, and 
 charged the jury, that " if the defendant knowingly and inten- 
 tionally offered for sale and did sell, as charged in the indict- 
 ment, the turpentine, as merchantable, hard or scraped turpen- 
 tine, knowing the same to be fraudulently mixed with chips, 
 etc., he is giiilty; that the deceiving an agent' in the execution 
 of his appropriate business, which he is employed to transact,, 
 is the same as deceiving the principal ; and that if the jury are 
 satisfied from the evidence that the defendant was the active 
 agent in the transaction, and that he is guilty of unmistakable 
 and intentional fraud and deception, then they are to return a 
 verdict of guilty." 
 
 The jury found the defendant guilty. Defendant appealed 
 from a judgment rendered upon the verdict. 
 
 Settle, J. The doctrine of caveat emptor, upon which 
 the defendant relies, does not apply to the facts in the case 
 before us. 
 
 After the very thorough discussion of the crime of cheating- 
 by false tokens, pretenses, etc., and the citation of authorities,, 
 by Eeade, J., in State v. Phifer, 65 N. C. Eep., 321, it would 
 be useless to pursue the subject further. 
 
 The facts in the case fall clearly under the denomination of 
 our statute. Kev. Code, ch. 34, sec. 67. And notwithstanding 
 the objections urged by counsel to the charge of his honor, 
 we are of opinion that he submitted the case to the jury in as 
 favorable a light to the defendant as he had a right to expect. 
 
 There is no error. 
 
 Judgment affirmed. : 
 
INDEX. 
 
 ABANDONMENT OF CRIME. 
 
 Whatconstitutes, State V.Davis, 146; Waters v. People, 153 ; Com. 
 V. Luckis, 266 ; R. v. Lapire and note, 333. 
 
 ABILITY TO REPAY. 
 
 When no defence to a charge of embezzlement, or olDtaining 
 money by false pretenses. State v. Leicham, 49; State v. 
 Walton, 135 ; State v. Thatcher and nale, 392. 
 Where a defence, Kribs v. People, 76. 
 ABSENCE OF DEFENDANT. 
 
 From trial, when not error. Schlinger v. People, 386. 
 
 ACCOUNTS. 
 
 Falsifying in embezzlement. Ker v. People, 25 ; Goodhue v. Peo- 
 ple, 113; Borkv. People, 133. 
 ACQUITTAL OB CONVICTION. 
 
 When a bar to subsequent prosecution. State v. Hennessey, 334 ; 
 Lowe V. State, 337; Wilson v. State, 333; Irwin v. State, 334; 
 People V. McCloskey, 336 ; Rhoons v. State, 340. 
 ADULTERER. 
 
 When guilty of larceny of goods taken by absconding wife. R. 
 V. Harrison, 316 ; Reg. v. Harrison, 317. 
 AGAINST THE STATUTES. 
 
 Of embezzlement. Ker v. People, 35 ; U. S. v. Taintor, and note, 
 44 ; State v. Foster, 54 ; People v, Dalton, 59 ; Queen v. Ful- 
 ker, 81; People v. Sherman, 91; U. S. v. Hartwell, 93; State 
 V. Boody, 128 ; Lowenthal v. State, 138 ; Reg v. De Banks, 176. 
 
 Not against the statute of embezzlement. Simco v. State, SO ; Webb 
 V. State, 33 ; Kribs v. People, 76 ; State v. Kent, 78 ; Queen v. 
 Negus, 80; People v. Allen, and note, 83; Com. v. Berry, 109; 
 Warmouth v. Com., and note, 143 ; Nichols v. People, 183. 
 
 Of false pretenses. Skiff v. People, 858 ; Jones v. State, 373 ; State 
 V. Stanley, 383 ; People v. Smith, 388 ; State v. Thatcher, 893 ■ 
 Reg. V. Hazelton, and note, 401 ; State v. Jones, 413. 
 
 Not against the statute of false pretenses. People v. Haynes, 383 • 
 People V. Jacobs, 355 ; Keller v. State, 361 ; Com. v. Grady' 
 369 ; State v. Anderson, 371 ; People v. Williams, and note< 
 880 ; Kellogg v. State, 384. 
 (415) 
 
416 Index. 
 
 AGAINST THE WILL. 
 
 Taking or converting, when considered to be. U. S. v. Taintor, 
 and note, 44; People v. Dalton, 59; People v. Sherman, 91; 
 Davis V. State, and note, 1-16; AVaters v. People, 153; Wurphy 
 V. People, 157;R. V. Slowly, 168; Loomisv. People, and note, 
 171; R. V. Paradice, 182; Nichols v. People, 183; Reg. v. 
 Middleton, 189; R. v. Leigh, 309; Williams v. State, 310. 
 
 Not against the will. R. v. Bazely, 14; Webb v. State, 32; State t 
 Kent, 78; People v. Allen, and note, 83; Com. v. Berry, 109; 
 Warmouth v. Com., and note, 142; R. v. Leigh, 809; Williams 
 V. State, 310. 
 AGENT, BAILEE, OPPICER, SERVANT. 
 
 Who are such, within the terms of the statute. Ker v. People, 
 25; State v. Foster, 54; People v. Dalton, 59; People v. Hus- 
 band, 70; Queen v. Foulkes, 87; People v. Sherman, 91; 
 U. S. V. llartwell, 92; Leople v. Hennessey, 99; State v. 
 Boody, and note, 128; Lowenthal v. State, 138. 
 
 A single act of employment may constitute agency. State v. 
 Foster, 54 ; Reg. v. De Banks, 176. 
 
 The relation may exist without contract. People v. Dalton, 59 ; 
 Queen v. Foulkes, 87. 
 
 An agent of an agent is within the term. People v. Dalton, 59 ; 
 Queen v Foulkes, 87 ; People v. Hennessey, 99 ; State v. Wal- 
 ton, 135 ; Murphy v. People, 157 ; State v. Jones, 413. 
 
 Where the terms have received a more restricted application. 
 R. V. Bazely, 13 ; State v. Kent, 78 ; Queen v. Negus, 80 ; People 
 V. Allen, and note, 83 ; Com. v. Berry, 109 ; Warmouth v. Com., 
 142; Reg. V. De Banks, 176; R. v. Paradice, 182; Nichols v. 
 People, 183. 
 
 Receiving money contrary to his duty, not within the statute of em- 
 bezzlement. Gaddy v. State, 52 ; Queen v. Negus, 80. 
 
 A tax collector, when an officer, within the statute. People v. Hen- 
 nessey, 99; State v. Boody, and note, 128; Snappv. Com., 144. 
 
 The question whether a person is an agent, clerk, officer, or ser- 
 vant, should be left to the jury. Queen v. Negus, 80 ; Reg. v. 
 De Banks, 176. 
 
 It is the duty of the court to construe a written contract creating 
 agency. Webb v. State, 22 ; State v. Leioham, 49. 
 
 A written contract, creating agency, may be varied by a parol 
 agreement. Webb v. State, 22. 
 AGREEMENT. 
 
 Written, when varied by parol. Webb v. State, 22. 
 
 To be construed by the court. Webb v. State, 22 ; State v. Lei- 
 cham, 49, 
 
 To pay ready money, violation of when larceny. Reg, v. SJowly, 
 168; Loomis v. People, and note. 171. 
 
 To repay borrowed money, when not within the statute of false 
 pretenses. Kellogg v. State, 384. 
 
Index. 417 
 
 AGREEMENT— Continued. 
 
 Whereby its terms defendant gets possession, but no title to prop- 
 erty, lie cannot be convicted of obtaining property by false 
 pretenses. State v. Anderson, 371. 
 
 ALLEGATION. 
 
 When sufficient to charge embezzlement. TJ. S. v. Hartwell, 93 ; 
 
 Goodhue v. People, 113; State v. Boody, and note, 138. 
 When not sufficient to charge embezzlement. Kribs v. People, 18 
 Gaddy v. State, 53 ; Carter v. State, GO ; Reside v. State, C8 
 People V. Allen, 83; U.S. v. Hartwell, 93; Com. t. Cerry, 109 
 Warmouth v. Com., 143; McCann v. U. 8., 144; Nichols v. 
 People, 183. 
 
 When sufficient to charge the obtaining of property by false pre- 
 tenses. People V. Jacobs, 355 ; Skiff v. People, 358 ; State v. 
 Stanley, 383 ; State v. Thatcher, 393. 
 
 When not sufficient to charge the obtaining of property by false 
 pretenses. Keller v. State, 301 ; Com. v. Grady, 309 ; Jones v. 
 State, 373 ; Maranda v. State, 354 ; 
 
 When sufficient to charge larceny. Waters v. People, 153 ; Mur- 
 phy V. People, 157 ; Nichols v. People, 183 ; Lowe v. State, 
 833 ; Irwin v. State, and note, 334; Williams v. State, and note, 
 338; State v. Penn, 348; Goodallv. State, People v. Campbell, 
 398. 
 
 When not sufficient to charge larceny. State v. Hennessey, 234 ; 
 Wilson T. State, 327; Williams v. State, and note, 338; Simp- 
 son V. State, and note, 343; State v. Lymus, 306. 
 
 When sufficient to charge larceny as bailee. State v. Foster, 54 ; 
 Carter v. State, 06 ; Reside v. State, 68 ; Reg. v. De Banks, 176. 
 
 When sufficient to charffe larceny from the person. Com. v. 
 Luckis, 366 ; King v. State, 269. 
 
 When sufficient in burglary. State v. Lymus, 306 ; Beall v. State, 325. 
 See Averment; Indictment. 
 ANIMALS. 
 
 When the subject or larceny. People v. Campbell, 298 ; State v. 
 Lymus, and note, 306. , 
 
 Description of, in indictment. Simpson v. State, and note, 243. 
 
 Care and management of , is sufficient proof of ownership. Crockett 
 V. State, 347 ; Ware v. State, 363. 
 
 The rule that larceny cannot be committed by finder of lost goods 
 does not apply to cattle. People v. Kaatz, 297. 
 
 False representations as to the soundness of, is within the statute 
 of false pretenses. State v. Stanley, 382. 
 ANIMUS PURANDI. 
 
 When sufficiently proved. U. S. v. Taintor, and note, 44 ; People v. 
 Dalton, 59; State v. Davis, 146; Waters v. ^People, 153; 
 Murphy v. People, 157; R. v. Slowly, 168; Loomisv. People, 
 and note, 171 ; Baker v. State, 179 ; R. v. Middsleton, 189 ; State 
 V. Fenn, 248 ; Com. v. Titus, 394. 
 
 27 
 
4:18 Index. 
 
 ASPORTATION. 
 
 When sufBoiently proved. State v. Davis, and note, 14G ; Murphy 
 V. People, 157 ; Com. v. Luokis, 256 ; R. v. C'herry, and note, 
 264; Flynn v. State, 272; R. v. Lapire, and note, 322. 
 ASSENT. 
 
 Of owner to the taking or conversion, when a defence. Webb v. 
 State, 22; U. S. v. Taintor, and note, 44; People v. Hennessey, 
 99 ; Williams v. State, 310. 
 ASSIGNMENT OP COUNSEL. 
 
 When presumed to be competent. Murphy v. People, 157. 
 ATTEMPT TO COMMIT LARCENY. 
 
 When sufficiently proved. R. v. Cherry, 264 ; Com. v. Luckis, 269 ; 
 R. V. Lapire, and note, 322. 
 AUTREFOIS ACQUIT AND CONVICT. 
 
 When a bar to subsequent proceedings. People v. Hennessey, 224; 
 Wilson V. State, 237 ; Lowe v. State, 238 ; Irwin v. State, 284 ; 
 People V. McCloskoy, 230 ; Rhoons v. Com., 240. 
 AVERMENTS. 
 
 When divisible. People v. Haynes, 333;.SkifEv. People, 358; 
 
 State V. Thatcher, and note. 393. 
 Descriptive must be proved, although unnecessarily particular. 
 Reside v. State, 08 ; Williams v. State, and note, 238 ; Simp- 
 son V. State, and note, 243 ; Ware v. State, 262. 
 Of description in general. Reside v. State, 68 ; Goodhue v. State, 
 
 113; State v. Boody, and note, 128; Goodall v. State, 237. 
 Of ownership. Ware v. State, 26; People v. Hennessey, 99; Cory 
 V. State, and note, 105; Boody v. State, and note, 128; 
 Crockett v. State, 247 ; State v. Fenn, 248 ; State v. Topeke, 257 ; 
 Beall V. State, 325. 
 Of value.. Reside V. State, 68; Goodhue v. People, 112; Boody v. 
 State, and note, 128 ; Williams v. State, and note, 238 ; Simp- 
 son V. State, and note, 343 ; Ware v. State, 262. 
 See Allegation ; Indictment. 
 
 B 
 
 BAILEE. 
 
 Larceny by. People v. Dalton, 59 ; Reside v. State, OS ; Murphy 
 
 V. People, 157 ; Reg. v. De Banks, 170 ; Nichols v. People, 183. 
 
 Indictment must set forth the character of bailment. Kribs v. 
 
 People, 18; Simco v. State, 20; People v. Allen, 83; Com. v. 
 
 Berry, 109; McCann v. U. S., 144. 
 
 BAILMENT. 
 
 What constitutes at common law. Gaddy v. State," 53; State v. 
 Poster, 54 ; Kellogg v. State, 382. 
 
 See Agent, Clbkk, Officer, Servant. 
 BANK CHECK. 
 
 Falsely representing a bank check to be good, when within the 
 statute of false pretenses. Rex v. Lara, 883 ; Reg. v. Hazelton, 
 and note, 401. 
 
Index. 419 
 
 BANK CHECK— Continued. 
 
 How described in indictment. Williams v. State, 238; State v. 
 Pierson, 308. 
 BANK OFFICEEB. 
 
 ■\Ylien liable for misapplying funds of a bank. U. S. v. Taintor, 44 ; 
 II. S. V. Hartwell, 93. 
 BAR. 
 
 To further prosecution, what constitutes. State v. Hennessey, 
 334; Wilson v. State, 337; Lowe v. State, 283; Irwin v. State_ 
 234; People v. McCloskey, 23G; Ware v. State, 263. 
 BILLS, BONDS, NOTES, SECURITIES. 
 
 When the subject of larceny or embezzlement. Ker v. People, 
 25; Reside v. State, 08; Goodhue v. People, 113; Bork v. 
 People, 13;5 ; Lowe v. People, 341 ; Simpson v. State, 343 ; State 
 V. Stevens, 343 ; People v. Fallon, 346 ; State v. Fenn, 348. 
 BOLD LIES. 
 
 When not within the statute of false pretense. People v. Haynes, 
 333; People v. Williams, 380; Jones v. State, 378; Com. v. 
 Grady, 369. 
 BREACH OF TKUST. 
 
 Distinguished from larceny, 1, 3, 3. R. v. Bazely, 13; Ker v. 
 People, 18 ; Simco v. State, 20 ; People v. Dalton, 59 ; People 
 V. Hennessey, 9'J; Com. v. Berry, 109; Warmouth v. Com., and 
 note, 143 ; Hill v. State, 151 ; Murphy v. People, and note, 157 ; 
 Loomis V. People, and note, 171; R. v. De Banks, 176; R. v. 
 Lavander, 181; R. v. Paradice, 183. 
 BULK. 
 
 Breaking bulk, when larceny. People v. Dalton, 59 ; Nichols v. 
 People, 183. 
 BURGLARY. 
 
 An ofEence against the habitation. Martinez v. State, 314. 
 Lawful owner of premises must J)e named in indictment. Beall v. 
 
 State, 325. 
 In the night time, must be clearly proved. Waters v. State, and 
 
 note, 328. 
 Breaking, without taking something of value, no burglary. State 
 
 V. Lymus. 
 Possession of stolen goods, when evidence of burglary. State v 
 Walker, 331 ; State v. Graves, 392 ; Waters v. State, and note, 338.' 
 Stealing goods hanging outside of building, not burglary. Mar- 
 tinez v. State, 314. 
 Conviction of larceny no bar to a posecution for burglary. People 
 McCloskey, 336. 
 
 C 
 
 "CARE," "CUSTODY," "KEEPING," "POSSESSION." 
 
 Terms defined. R. v. Watson, 13; R.v. Bazely, 14; Ker v. People, 
 25; U. S. v. Hartwell, 93; People v. Hennessey, 99; Com. v. 
 Berry, 109; Warmouth v. Com., 143; R. v. Lavander, 181; R. 
 V. Paradice, 183. 
 
420 Index. 
 
 CAKRIER. 
 
 Breaking bulk by, when larceny. Nichols v. People, 183. 
 CASH. 
 
 Agreement to pay ready cash, violation of, when larceny. K. v. 
 Slowly, IGS; People v. Loomis, 171. 
 CAUTION. 
 
 Must be exercised by the prosecutor in false pretenses. People v. 
 Haynes, 333; Skiff v. People, 358; Com. v. Grady, 369; Peo- 
 ple V. Williams, 380. 
 "CUSTODY," "CARE," "KEEPING," "POSSESSION." 
 
 Terms defined. R v. Watson, 13; R v. Bazely, 14; Kerv. People^ 
 25; U. S. V. Ilartwell, 9i; People v. Hennessey, 99; Com. t. 
 Berry, 109; R. v. Lavander, 181 ; R. v. Paradice, 18 J. 
 CHANGE. 
 
 Fraudulently converting money delivered for the purpose of being 
 " changed," when larceny. Murphy v. People, and note, 157 ; 
 Reg. V. Bird, 163. 
 CHEAT. 
 
 At common law, what constituted, 330 ; R. v. Wheatly, 331 : Rex 
 V. Lara, 332 ; People v. Haynes, 3S3. 
 CHECK. 
 
 Falsely representing a bank check to be good, when within the 
 statute of false pretenses. R. v. Lara, 332 ; State v. Lara, 232 ; 
 Reg. V. Hazelton, 401. 
 CLAIM OF RIGHT. 
 
 "When a defence to a charge of embezzlement. Webb v. State, 23 ; 
 State V. Leicham, 49 ; People v. Husband, 70. 
 
 CLERK, AGENT, BAILEE, OFFICER, SERVANT. 
 
 Who will be considered as such under the embezzlement statute. 
 Ker V. People, 25 : People v. Dalton, 59 ; Queen v. Foulker, 
 87; People v. Sherman, 91; U. S. v. Hartwell, 92; People v. 
 Hennessey, 99 •, Boody v. State, and note, 128 ; Lowenthal v. 
 State, 138. 
 COERCION. 
 
 Quinlan v. People, 320 ; Com. v. Wood, 320. 
 COIN. 
 
 How described in an indictment. Williams v. State, and note, 388. 
 COMMISSION. 
 
 One entitled to, not guilty of embezzlement for converting whole 
 amount. State v. Kent, and note, 87. 
 COMMISSION MAN. 
 
 When liable for converting the proceeds of sales. Wright v. 
 People, 73. 
 COMMON LAW. 
 
 What constituted larceny at; 1, 2, 3, 11. 
 
 R. V.Watson, 13; Kribs v. People, 18; Com. v. Berry, 109; 
 Warmouth v. Coiti., 142; State v. Davis, 146; R. v. Humphrey, 
 168; Loomis v. People, and note^ 171 ; R. v. Lavander, 181 ; li. 
 
Indkx. 421 
 
 COMMON LAW— Continued. 
 
 V. Paradice, 182; Nichols v. People, 183; Queen v. Middle- 
 ton, 189. 
 Not larceny at common law ; 1,3,3,11. R. v, Bazely, 13 ; Kribs v- 
 
 People, 18 ; State v. Foster, 54 ; People v. Dalton, 59 ; People v. 
 
 Allen, and note, 83 ; People v. Sherman, 91 ; People v. Hen- 
 nessey, 99. 
 -CONSENT. 
 
 Of owner, when a defence to a prosecution, for embezzlement or 
 
 larceny. Webb v. State, 22 ; Cory v. State, 105-107 ; State v. 
 
 Walton, 135; Williams v. State, 310; R. v. Harrison, 310. 
 When not a defence. U. S. v. Taintor, 44; R. v. Harrison, 817. 
 CONSPIRACY. 
 
 Where one enters into a conspiracy to defraud another, and is 
 
 himself defrauded, he cannot complain People v. Williams, 
 
 and note, 3iS0. 
 Money obtained by, when larceny. People v. Loomis, 171. 
 CONSTRUCTION. 
 
 Penal laws must be strictly construed. IT. S. v. Hartwell, 92. 
 CONTRACT. 
 
 To be construed by the court. State v. Leicham, 49. 
 
 Written, may be varied or changed by parol. Webb v. State, 22 ; 
 
 McCanu v. U. S., 144. 
 Made or obtained through fraud voidable, not void. Kellogg v. 
 
 State, 382. 
 CONVERSION. 
 
 When sufficiently proved. U. S. v. Taintor, 44 ; State v, Foster, 54 ; 
 
 People V. Dalton, 59; People v. Husband, 70; Queen v. 
 
 Foulkes, 87; People v. Sherman, 91; U. S. v. Hartwell, 93; 
 
 Goodhue v. People, 112; State v. Boody, and note, 128; Reg. 
 
 V. De Banks, 170 ; Baker v. State, 179 ; R. v. Lavander, 181 ;' R. 
 
 V. Paradice, 183 ; Nichols v. People, 183 ; Reg. v. Middleton, 189. 
 Not sufficiently proved, R. v. Watson, 13; R. v. Bazely, 14; Webb 
 
 V. State, 22 ; Carter v. State, 00 ; Wright v. People, 73 ; Kribs 
 
 V. People, 70; State v. Kent, 78; Queen v. Negus, 80; People 
 
 V. Allen, and note, 83. 
 CONVICTION. ' , 
 
 When a general verdict of guilty will sustain. Goodhue v. People, 
 
 112; Murphy V. People, 157. 
 When a bar to subsequent prosecution. State v. Hennessey, 224; 
 
 Wilson V. State, 227; Lowe v. State, 283; Irwin v: State, 234; 
 
 People V. McCloskey, 230 ; Ware v. State, 202. 
 CORPORATION. 
 
 Must be legally created, in order to sustain a prosecution for em- 
 bezzlement. Cory V. State, 103. 
 When included in the embezzlement statute. People v. Hen. 
 
 nessey, 99; State v. Boody, and note, 128. 
 When sufficiently alleged and proved. Cory v. State, and note, 105. 
 
422 Index. 
 
 COEPOEA.TION— Continued. 
 
 Distinction between public and private corporation. State v, 
 
 Boody, 128. 
 Townships and school districts are public corporations. State v. 
 Boody, and note, 128. 
 COUNTERFEIT. 
 
 Money, when presumed to be. Reside v. State, 08 ; State v. Stevens, 
 243 ; People v. Fallon, 246. 
 COUNTS. 
 
 For larceny andembezzlementmaybeioined. Kerv. People, 55; U. 
 S. V. Taintor, 44; U. S v. Hartwell, 93; Murphy v. People, 157. 
 Larceny of several different articles may be included in one count- 
 Hennessey v. State, 224; Wilson v. State, 227; Lowe v. State^ 
 233 ; Irwin v. State, and note, 234. 
 COUNTY OFFICERS. 
 
 When liable underthe embezzlement statute. Goodhue v. People, 
 112; State V. Boody, and note, 128. 
 COUNTY RECORDS. 
 
 Recitals in, not evidence in criminal prosecutions. Goodhue v. 
 People, 112. 
 CREDITOR. 
 
 When liable to prosecution, for collecting a debt by fraud. People- 
 V. Smith, 388. 
 "CUSTODY," "CARE," "KEEPING," "POSSESSION." 
 
 Terms distinguished from each other. R. v. "Watson, 13; R. v. 
 Bazely, 14; Kerv. People, 25; U. S. v. Hartwell, 92; Com. v. 
 Berry, 109; VVarmouthv. Com., 142; R. v. Lavandar, 181; R. v. 
 Paradice, 182. 
 
 D 
 
 DAY TIME. 
 
 Evidence as to time, when sufficient. Waters v. State, and note, 328. 
 DEAD BODY. 
 
 Goods stolen from, how described, in the indictment. State v. Do- 
 peke, 257 ; Beall v. State, 325. 
 DEAD PER^ON. 
 
 Property left by, how described. Crockett v. State, 247 ; Beall v. 
 State, 325. 
 DEFECTIVE COUNTS. 
 
 What constitutes, in indictment. Ker v. People, 25 ; Cory v. State, 
 105; Waters v. People, 153; Slurphy v. People, 157; State v. 
 Hennessey, 223 ; Lowe v. State, 233 ; Irwin v. State, 234. 
 DEFENDANT. 
 
 Presence of at trial. Schlinger v. People, 280. 
 DEFINITION. 
 
 Of larceny, 145; of robbery, 321 ; of false pretenses, 330; of the 
 terms, "agent," "clerk," "servant," "employer," "employ- 
 ment," "master," "care," "charge," "custody," "keeping," 
 "possession." 1, 2. U. v. Watson, 13; R. v. Bazely, 14; State 
 V. Foster, 54 ; Com. v. Berry, 109 ; Lowenthal v. State, 133 ; War- 
 
Index. 423 
 
 DEFINITION— Continued. 
 
 mouth V. Com , 142; B. v. Lavandar, 181 ; R. v. Paradice, 182; 
 Reg. V. Jliddleton, 189 ; Kellogg v. State, 384. 
 DEFRAUD. (See Intent.) 
 DEMAND. 
 
 Evidence of, when sufficient. Wright v. People, 73 ; Goodhue v. 
 People, 112; State v. Ring, 134. 
 DEMURRER. 
 
 To indictment for embezzlement. State v. Boody, 128 ; State v. 
 
 Walton, 135. 
 'To indictment for larceny. People v. Campbell, 305; State v. 
 
 Lymus, 306. 
 To an indictment for false pretenses. State v. Stanley, 382. 
 DESCRIPTION. 
 
 Must be proved, though unnecessarily particular. Reside v. State, 
 08 ; Williams v. State, and note, 238 ; Simpson v. State, and 
 nuie, 243 ; Ware v. State, 262. 
 In general, when sufficient. Goodhue v. People, 112; Bork v. 
 People, 133; State v. Ring, 134; State v. Walton, 135; Good- 
 ail V. State, 237. 
 DECEASED PERSON. (See Dead Body.) 
 DOG. 
 
 When the subject of larceny. People v. Campbell, 298; State v. 
 Lymus, 300. 
 DOMESTIC ANIMALS. (See Animals) 
 DOUBLE OFFENCES. 
 
 What constitutes, in embezzlement. Ker v. People, 25 ; Goodhue 
 
 V. Peoisle, 112. 
 What constitutes, in larceny. Waters v. People, 153 ; State v. Hen- 
 nessey, 22 1 ; Wilson v. State, 227 ; Lowe v. State, 232 ; Irwin 
 V. State, 234. 
 DUPLIC;ITY. 
 
 In indictment for embezzlement. Ker v. People, 25 ; U. S. v. 
 
 Ilartwell, 93; Goodhue v. People, 112. 
 In indictment for larceny. Waters v. People, 153; Murphy v. 
 People, 157; State v. Hennessey, 224; Wilson v. State, 237; 
 Lowe V. State, 232 ; Irwin v. State, 234. 
 DWELLING HOUSE. 
 
 Of deceased person, how described. Beall v. State, 325. 
 Larceny from, what constitutes. Martinez v. State, 314. 
 
 E 
 ELECTION. 
 
 Where prosecution ought to make. Ker v. People, 25 ; Goodhue 
 V. People, 112; State v. Hennessey, 224. 
 EMBEZZLEMENT. 
 
 Distinguished from larceny ; 1, 2, 3, 10, 11. R. v. Bazely, 13; Kribs 
 V. People, 18 ; Simco v. State, 20 ; People v. Allen, and note, 
 
4:24: Index. 
 
 EMBEZZLEMENT— Continued. 
 
 83 ; Com. v. Barry, 109 ; Warmoutli v. Com., 143 ; R. v. Lav- 
 ander, 181 ; R. v. Paradioe, 183. 
 
 Where the above distinction has not been observed. Ker v. People, 
 35 ; State v. Foster, 54 ; People v. Dalton, 59 ; People v. Sher- 
 man, 91 ; People v. Hennessey, 99; People v. Bork, 133; Low- 
 enthal v. State, 138. 
 EVIDENCE. 
 
 When sufficient to sustain a conviction of embezzlement. Ker v. 
 People, 23 ; State v. Leicham, 49 ; State v. Foster, 54 ; People, 
 V. Dalton, 59 ; People v. Husband, 70 ; Queen v. Foulkes, 87 ; 
 People V. Sherman, 91 ; Lowenthal v. State, 138 
 
 When not sufficient to sustain a conviction for embezzlement. 
 R. V. Weston, 13 ; R. v. Bazely, 1 4 ; Simco v. State, .30 ; Webb v: 
 State, 33 ; Gaddy v. State, 52 ; Queen v. Negus, 80 ; People v. 
 Allen, and note, 83 ; People v. Hennessey, 99 ; Com. v. Berry^ 
 109 ; Warmouth v. Com., 143 ; McCann v. U. S., 144 ; Nichols v! 
 People, 183. 
 
 Not sufficient to convict a commission man for converting proceeds 
 of sales. Wright v. People, 73 ; State v. Kent, 78. 
 
 When sufficient against a banli: officer for converting funds of bank. 
 TJ. S. V. Taintor, 44; TJ. S. v. Hartwell, 93; Cory v. State, 103. 
 
 When sufficient against a county or township officer for misappro- 
 priation of funds. People v. Hennessey, 99 ; Goodhue v. 
 People, 113 ; State v. Boody, and ?U)te, 128 ; Snapp v. Com., 144. 
 
 When sufficient to sustain a conviction of larceny by agent, bailee, 
 clerk or servant. R. v. Watson, 13 ; Com. v. Berry, 109 ; War- 
 mouth V. Com., 143; Loomis v. People, and note, 171; Reg. v. 
 Da Banks, 17ti; R. v. Lavander, 181; R. v. Paradice, 183; 
 Nichols V. People, 183. 
 
 When not sufficient to sustain ii conviction of larceny against an 
 agent, bailee, clerk ,or servant. R. v. Bazely, 14 ; Kribs v. 
 People, 18; Simco v. People, 30; Gaddy v. State, 53; Carter v. 
 State, 06. 
 
 Of intent to steal, or embezzle, vrhen sufficient. U. S. v. Taintor. 
 and jiote, 44; People v. Dalton, 59; People v. Husband, 70; 
 State V. Boody, and note, 13S ; State v. Davis, 146 ; State v. 
 Fenn, 148; Waters v. People, 153; Murphy v. People, 157; 
 R. V. Slowly, 103 ; Loomis v. People, 171 ; Reg. v. Middleton, 189. 
 
 When not sufficiently proved. State v. Hill, 131 ; R. v. Leigh, 309. 
 
 Of recent possession of stolon property when sufficient to convict. 
 Murphy v. People, 157 ; Webb v. State, and note. 283 ; Schlinger 
 V. People, 3S6 ; State v. Graves, 393. 
 
 When recent possession of stolen property not sufficient to convict. 
 AVatkins v. State, 374 ; People v. Noregea, 276 ; Smith v. State, 
 277 ; Waters v. State, 328. 
 
 Of intent to steal lost goods, when sufficient. Baker v. State, 179 ; 
 Com. V. Titus, 394 ; People v. Swan, and note, 395. 
 
Index. 425 
 
 EVIDENCE— Continued. 
 
 Of ownership, when sulBcient. Ker v. People, 25; People v. 
 
 Hennessey, 99 ; Cory v. State, and note, 105 ; State v. Walton, 
 
 135; Crockett v. State, 347; State v. Fenn, 248; Stater. Do- 
 
 peke, 257 ; Beall v. State, 335. 
 Of value. Reside V. State, 68; Goodhue v. People, 113; Barky. 
 
 People, 133 ; State v. Walton, 135 ; Williams v. State, and note, 
 
 238 ; People v. Fallon, 346 ; State v. Fenn, 248 ; State v. Do- 
 
 peke, 257. 
 Of larceny from the person, when sufficient. R. v. Thompson, 265 ; 
 
 Com. V. Luckis, 260 ; King v. State, 269 ; Flynn v. State, 273. 
 Of attempt to commit larceny, when sufficient. Com. v. Luckis, 
 
 266. 
 Of time in burglary, when sufficient. Waters v. State, 238. 
 Of larceny from a house, when sufficient. Martinez v. State, 314. 
 Of separate and distinct ofEences not admissible. Kribs v. People, > 
 
 76; Goodhue v. People, 112; Webb v. State, 283. 
 EXECUTOR. 
 
 When the ownership of property should be laid in. Crockett v. 
 
 State, 247; State v. Dopeke, 257; Ware v. State, 262; Beall v. 
 
 State, 325. 
 EXTRADITION. 
 
 Not a question of jurisdiction in trial court. Ker v. People, 35. 
 
 F 
 
 FALSE ACCOUNTS. (See AccotrNTs.) 
 FALSEHOODS. 
 
 When not within the statute of false pretenses. People v. Haynes, 
 333. 
 FALSE MEASURES AND WEIGHTS. 
 
 Use of an offence at common law, 330 ; R. v. Wheatly, 331 ; R. v. 
 . Lara, 833 ; People v. Haynes, 333. 
 FALSE PRETENSES. 
 
 Definition of, 330; Murphy v. People, 157. 
 
 What constitutes Loomis v. People, and note, 171 ; R. v. Middleton, 
 189 ; Skiff T. People, 858 ; Jones v. State, 373 ; State v. Stanley, 
 382 ; People v. Smith, 388 ; State v. Thatcher, 393 ; State v. 
 Jones, 412. 
 What acts are not within the statute of false pretenses. People v. 
 Haynes, 333 ; People v. Jacobs, 355 ; Keller v. State, 361 ; Com. 
 V. Grady, 359; State v. Anderson, 371 ; People v. Williams, and 
 note, 380 ; Kellogg v. State, 384. 
 Must relate to an existing fact. People v. Haynes, 333. 
 Must be such as would mislead a person of ordinary prudence. 
 
 People V. Haynes, 338; Com. v. Grady, 869. 
 May relate to quality, quantity, or nature. Stanley v. State, 383. 
 Loan of money obtained by, when within the statute. Kellogg 
 V. State, 384. 
 
426 Index. 
 
 FALSE PRETENSES— Continued. 
 
 Obtaining signatures to a note by, is witliiii tlie statute. State v. 
 
 Tliatciier, ii92. 
 Collecting a debt by, -within tlie statute. People v. Smitb, 388. 
 FEAR. 
 
 Must exist in robbery, 321. McCloskey v. People, 323. 
 FELONIOUS INTENT. (See Evidbkce, Intent.) 
 FEME COVERT. 
 
 Not liable for crime committed in presence of husband, 320. 
 
 QininUn v. People, 3?0; Com. v. Wood, 320. 
 Taliing husband's property with consent of, when not larceny. R. 
 
 Y. Harrison, Bllj. 
 Adulterer of, when guilty of larceny for taking property of hus- 
 band. Reg. V. Harrison, 317. 
 See HnsB.\ND and Wife ; Maeeied Woman. 
 FINDER OF LOST GOODS. 
 
 When guilty of larceny for converting them. Baker v. State, 179 ; 
 Com. V. Titus, 294 ; People v. Swan, and note, 295. 
 FORMER ACQUITTAL AND CONVICTION. 
 
 See AuTKBPOis Acquit and Convict. 
 FRAUD. (See Iniekt.) 
 FREEHOLD. 
 
 Property savoring of, when the subject of larceny. State v. Ber- 
 ryman, 242 ; People v. Williams, 242. 
 
 GAMBLING. 
 
 Inducing a person to lose money by, when larceny. I^oomis v. 
 People, and note, 171. 
 GOOD FAITH. 
 
 When a defence to a charge of embezzlement. U. S. v. Taintor, 
 and note, 44; Webb v. btate, 22; People v. Husband, 70. 
 GRAVE CLOTHES. 
 
 State V. Dopeke, 357 ; Beall v. State, 325. 
 GUESTS. 
 
 When guilty of larceny, for taking'goods from house ; 3, 3. 
 GUILT. 
 
 See Evidence, Intent, Possession. 
 
 H 
 
 HIGPIWAY. 
 
 Cattle lost on, not the property of finder. People "v. Kaatz, 397. 
 See PiNDEB OF Lost Goods. 
 HORSE. 
 
 How described in indictment. Simpson v. State, and note, 243. 
 False representations concerning the soundness of, when within 
 the statute of false pretenses. State v. Stanley, 382. 
 HOUSE. 
 
 Larceny from, when sufficiently proved. Martinez v. State, 815. 
 
Index. 427 
 
 HOUSE— Continued. 
 
 Ownership of, must be correctly alleged in burglary. Beall v. 
 State, 325. 
 HUSBAND AND WIFE. 
 
 Taking husband's property with consent of wife, when larceny. 
 
 R. V. Harrison, U16; R. v. Harrison, 317. 
 Where stolen property belongs to the wife of the alleged owner, 
 
 , there can be no conviction. Stevens v. State, and nvie, 319. 
 Where wife commits crime in presence of her husband, coercion 
 
 is presumed. Quinlan v. People, 330 ; Com. v. Wood, 320. 
 Where a husbind deserts his wife, she may prosecute as owner 
 for the larceny of his property. Ware v. State, a63. 
 See Markied Woman, Wife. 
 
 I 
 INDICTMENT. 
 
 When bad for duplicity. Ker v. People, 25 ; U. S. v. Hartwell, 92; 
 
 Goodhue v. People, 112; Waters v. People, 153; JIurphyv. 
 
 People, 157; State v. Hennessey, 324; Wilson v. State, 227; 
 
 Lowe V. State, 232; Irwin v. State, 234. 
 When sufficient to charge embezzlement. Ker v. People, 25; U. S. 
 
 V. Hartwell, 92; Goodhue v. People, 112; State v. Boody, and 
 
 note, 128. 
 When not sufficient to charge embezzlement. Kribs v. People, 18 ; 
 
 Gaddy v. State, 52 ; Carter v. State, CG ; IJeside v. State, 08 ; 
 
 People V. Allen, and note, 83 ; Com. v. Berry, 109 ; Warmouth 
 
 V. Com., 142; Nichols v. People, 183. 
 When sufficient to charge false pretenses. People v. Jacobs, 355 ; 
 
 Skiffl V. People, 258 ; State v. Stanley, 382 ; State v. Thatcher, 392. 
 When not sufficient to charge false pretenses. Keller v. State, 
 
 309; Com. V. Grady, 369; Jones v. State, 373; Maranda v. 
 
 State, 334. 
 When sufficient to charge larceny. Waters v. People, 153 ; Murphy 
 
 v.People,157;Goodallv. State,237;Lowev. State, 333; Willi- 
 ams v. State, 238; State V. Fenn, 248; People v. Campbell, £98. 
 When not sufficient to charge larceny. State v. Hennessey, 324 ; 
 
 Wilson v. State, 227 ; Williams v. State, and note, 238; State v. 
 
 Lymus, 300. 
 When sufficient to charge larceny as bailee. State v. Foster, 54 ; 
 
 Carter v. State, 60 ; Reside v. State, 68 ; Reg. v. De Banks, 17G. 
 When sufficient to charge larceny from the person. Com. v. 
 
 Luckis, 260 ; King v. State, 269. 
 When not sufficient in burglary. State v. Lymus, 306 ; Beall v. 
 
 State, 335. 
 See Allbsation, Averment, Demorrer, Evidence. 
 INDORSE.\IENT. 
 
 AVhen sufficient to transfer note. • State v. Fenn, 248. 
 
 Falsely obtaining to note, within the statute of false pretenses. 
 
428 Index. 
 
 INTENT. 
 
 When guilty will tie presumed from act. U. S. v. Taintor, and note, 
 a ; State v. Davis, and note, UG ; Waters v. People, 153 ; Murphy 
 V. People, 157 ; R. v. Slowly, 168 ; Loomis v. People, and note', 
 171 ; Baker v. State, 179 ; Reg. v. Middleton, 189 ; State v. Fenn, 
 348 ; Com. v. Titus, 294 ; People v. Swan, 395. 
 
 When guilty, intent not presumed from act. It. v. Leigh, 309. 
 
 J 
 
 JEOPARDY. 
 
 See Acquittal and Conviction. 
 
 JOINT OFFENCES. 
 
 When two offences are committed at the same time. Ker y. 
 People, 35 ; Goodhue v. People, 113 ; Waters v. People, 153 ; 
 State V. Hennessey, 334 ; Wilson v. State, 337 ; Lowe v. State, 
 233 ; Irwin v. State, 384. 
 JUDGMENT. 
 
 When a bar to subsequent proceedings. 
 See Autrefois Acquit. 
 JURISDICTION. 
 
 The validity of extradition proceedings not a jurisdictional ques- 
 tion. Ker V. People, 25. 
 Of a court, ceases upon the making of an order for the change of 
 venue. Goodhue v. People, 113. 
 JURY. 
 
 To judge of the sufficiency of evidence. Ker v. People, 35-40 ; 
 People V. Husband, 70 ; Warmouth v. Com., 142 ; State v. Davis, 
 146 ; Waters v. People, 153 ; Murphy v. People, 157 ; R. v. Slowly, 
 168 ; Loomis v. People, and note, 171 ; Reg. v. De Banks, 176. 
 JUSTIFICATION. 
 
 In embezzlement. Webb v. State, 22 ; U. S. v. Taintor, and note, 
 44; People v. Husband, 70; Williams v. State, 310. 
 
 K 
 
 "KNOWINGLY." 
 
 An indictment in false pretenses must allege that the defendant 
 hnowingly made the false pretenses. Maranda v. State, 354. 
 KNOWLEDGE GUILTY. 
 
 In false pretenses must be. State v. Stanley, 383. (See Intent.) 
 
 li 
 
 LAND. 
 
 False representations, as to location or title, when within the statute 
 of false pretenses. People v. Jacobs, 355; SkifE v. People 
 358; Com. V. Grady,- 869. 
 LANDLORD. 
 
 Liable for embezzling goods of guest. People v. Husband, 70. 
 LARCENY. : 
 
 Definition of, 145; what constituted at common law, 1, 3, 8, 10, 
 11, Vi. State V. Davis, 146 ; Waters v. People, 153 ; Murphy v. 
 
.Index. 429- 
 
 LARCENY— Continued. 
 
 People, and note, 137 ; Reg. v. Slowly, 108 ; Loomls v. People,, 
 and note, 171 ; Baker v. State, 179; R. v. Lavandar, 181;. R. v. 
 Paradlce, 182; Nichols v. People, 183; Reg. v. Middleton, 189; 
 State V. Dopeke, 257; Com. v. Titus, 294; People v. Swan, 295_ 
 Not larceny at common law, 1, 2 3, 10, 11, 330. R. v. Bazely, 13 ;. 
 Kribs V. People, 18 ; Simco v. State, 20 ; People v. Dalton, and 
 note, 54 ; Zschocke v. People, 80 ; Com. v. Berry, 109 ; War- 
 mouth, and note, 142 ; R. v. Cherry, 264 ; R. v. Wheatly, 331 ;, 
 Rex V. Lara, 332. 
 LETTER. 
 
 Contents of, subject of embezzlement. Dalton v. People, 59. 
 LIVERY STABLE. 
 
 Conversion of horse, hired from, when larceny. State v. Davis, and. 
 note, 146. 
 LOST GOODS. 
 
 Larceny by finder of. Baker v. State, 179 ; Com. v. Titus, 294 ; 
 People V. Swan, 295. 
 LOST NOTE. 
 
 Contents of, when suflSciently proved. State v. Fenn, 248. 
 LUORI CAUSA. 
 
 When sufficiently proved. State v. Davis, 140 ; Reg. v. Middle- 
 ton, 189. 
 LYING. 
 
 When a false pretense within the statute. People v. Haynes, 333 ; 
 People V. Jacobs, 355; Skifi v. People, 358; Com. v. Grady,. 
 369 ; People v. Williams, 380 ; State v. Stanley, 382. 
 
 m 
 
 MALFEASANCE IN OFFICE. 
 
 When an offence within the statute. U. S. v. Taintor, 44 ; People 
 V. Allen, and note, 83 ; U. S. v. Hartwell, 93 ; Goohue v. People,. 
 112; State v. Boody,' and note, 128. 
 MARRIED WOMAN. 
 
 Taking husband's property with her consent not larceny. R. v. 
 
 Harrison, 3l6 ; R. v. Harrison, 317. 
 In larceny, is deemed the owner of her separate property. 
 
 Stevens v. State, and note, 319. 
 When presumed to act under coercion of her husband. Quinlanv. 
 
 People, 330 ; Com. v. Wood, 320. 
 When deserted by husband, is deemed to be the owner of all 
 
 property. Ware v. State, 263. 
 When husband is dead, is deemed to be the owner of personal 
 
 property. Crockett v. State, 247. 
 See Ownership, Dead Person, Husband and Wife. 
 MASTER AND SERVANT. 
 
 See Agent, Clebk, Officer, Servant. 
 MISFEASANCE IN OFFICE. 
 
 See Malfeasance in Office. 
 
430 Index. 
 
 MISTAKE. 
 
 When larceny to .retain money paid by. R. v. Middleton, 189. 
 MONEY. 
 
 Jiow described in indictment. TJ. S. v. Taintor, 44; People v. 
 Dalton, 59 ; Reside v. State, 6S ; Goodhue v. State. 112 ; State 
 T. Boody, and note, 128 ; Lowenthal v. State, 138 ; ^Villiams v. 
 State, and note, 3:^8 ; Simpson v. State, 243 ; People v. Fallon, 246. 
 Loan of obtained by false pretenses witMn the statute. Keller v. 
 State, 334. 
 MORTGAGE. 
 
 Representations as to mortgage on real estate, when not within the 
 statute of false pretenses. Keller v. State, 361 ; Com. v. 
 Grady, 369. 
 
 See PuoMissoRY Note. 
 MOTIVE. 
 
 See Intent, Knowingly, Knowledge. 
 
 NATIONAL BANK. 
 
 Officers of, when guilty of embezzlement. U. S. v. Taintor, 44; 
 U. S. V. Hartwell, 93; Cory v. State, 105. 
 
 O 
 
 ORDINARY CAUTION AND PRUDENCE. 
 
 See False Pretenses. 
 OWNERSHIP. 
 
 When in corporation it must have a legal existence. Cory v. State 
 
 and note, 105. 
 When in partners. Ker v. People, 25. 
 Care and management, sufficient Crockett v. State, 247 ; Ware v. 
 
 State, 263. 
 Of promissory note indorsed in blatak. State v. Fenn, 348. 
 Of property stolen from a grare. State v. Dopeke, 357 ; Beall v. 
 
 State, 3-35. 
 Of property of absconding husband, when in wife. Ware v. 
 
 State, 362. 
 Of wife's separate property. Stevens v. State, and note, 319. 
 Of property of deceased person. State v. Dopeke, 357 ; Beall v. 
 
 State, 325. 
 Of property belonging to several persons. State v. Hennessey, 
 
 234 ; Wilson v. State, 327 ; Lowe v. State ; Irwin v. State, and 
 
 note, 334. 
 
 P 
 
 PAROL EVIDENCE. 
 
 When the terms of a written instrument may be changed by. 
 Webb V. State, 33 ; State v. Leicham, 49 ; Kribs v. People, 76 ; 
 McCann v. U. S., 144. 
 
Index. 431 
 
 PARTNERS. 
 
 When not liable to a prosecution for embezzling partnership funds. 
 
 State V. Kent, 78. 
 Ownership of property in, how alleged. Ker v. People, 25. 
 PERSON. 
 
 The term, includes all persons except defendant. People v. Hen- 
 nessey, 99. 
 "PERSONAL PROPERTY." 
 
 What is included within the term. State v. Berryman, 242 ; People 
 V. Williams, 242 ; State v. Lymus, and note, 306 ; People v. 
 Campbell, 298. 
 PICKPOCKET. 
 
 Proof when sufficient to convict of. Com. v. Luckis, 206 ; Flynn 
 V. State, 272. 
 PIECE OF PAPER. 
 
 Value of. People v. Bradley, 308; State v. Jones, 308; State v. 
 Thatcher, 393. 
 POSSESSION OF STOLEN PROPERTY. 
 
 Evidence of. Watkins v. State, 274; People v. Noregea, 176; 
 Smith V. State, 277 ; State v. Walker, 281 ; Webb v. State, 283 ; 
 Schlinger v. People, 28G ; State v. Graves, 292. 
 PROCEEDS. 
 
 Of embezzlement or larceny, when there can be no conviction for 
 the embezzlement of. AVebb v. State, 22; Goodhue v. People, 
 112-12S ; Reg. V. Bird, 163; Reg. v. De Banks, 17G. 
 POST OFFICE ORDER. 
 
 Receiving and converting money paid on by mistake, when larceny. 
 Reg. V. MiddWton, 189. 
 PRESUMPTION. (See Intent.) 
 PROMISE. 
 
 To pay ready cash, violation of when larceny. Heg. v. Slowly, 
 168; Loomisv. People, 171. 
 PROMISSORY NOTE. 
 
 When sufficiently described in larceny. State v. Penn, 248. 
 Obtained by false pretenses within the statute. Jones v. State 
 
 373 ; State v. Thatcher, 392. 
 Substitution of the original note for one of equal value does not 
 change the nature of the contract. Jones v.' State, 373. 
 PUBLIC OFFICERS. (See Officers.) 
 
 PUBLIC RECORDS. 
 
 Recitals in when not evidence. Goodhue v. People, 112. 
 When " means at hand " for detecting fraud. Com. v. Grady, 369 ; 
 SkifE V. People, 358. 
 
 B 
 
 RECEIPT. 
 
 Value of, in larceny. State v. Lymus, and note, 306. 
 RECORD. (See Poblic Record.) 
 
-432 .Index. 
 
 RESTITUTION OF STOLEN PROPERTY. 
 
 State V. Hennessey, 138. 
 REPAY. 
 
 Ability to repay, no defence in embezzlement or false prtenses. 
 State V. Leicham, 49 ; State v. Thatcher, 393. 
 ROBBERY. 
 
 Definition of, 331 ; when sufficiently proved. R. v. Lapire, 333 ; 
 Plynn v. State, 373 ; McCloskey v. People, 333. 
 
 S 
 
 SECURITIES. 
 
 When the subject of embezzlement. Goodhue v. People, 113^ 
 State V. Boody, and note, 1 28. 
 SERVANTS. (See Agent, Cleek, Officer.) 
 STATUTES OP EMBEZZLEMENT. 
 
 English, not, similar to those of the American States. Ker v. 
 
 People, 35; State v. Foster, 54; Lowenthal v. People, 138. 
 What acts are included within. Ker v. People, 33 ; U. S. v. Tain- 
 tor, and note, 44 ; State v. Poster, 54 ; People v. Dallon, 59 ;. 
 People T. Husband, 70 ; People v. Sherman, 91 ; People t. 
 Hennessey, 99; Goodhue v. People, 113; State v. Boody, 138; 
 Lowenthal t. State, 138. 
 Not included within the statute. R., v. Watson, 13 ; R. v. Bazely, 
 14; Kribs v. People, 18; Simco v. State, 20; Webb v. State, 
 33; Com. V. Berry, 109; Warmouth v. "Com., 143; Nichols v. 
 People, 183. 
 See Embezzlement, False Pretenses, Lakcent. 
 STOLEN PROPERTY. (See Possession of Stolen Pkopekty.) 
 
 T 
 
 TIME. (See Night Time.) 
 
 TITLE. (See Public Records, Ownership.) 
 
 TOWNSHIP. 
 
 Officers of, when liable for misappropriating its funds. State v. 
 Boody, and note, 138. 
 
 T 
 
 VALUE OF PROPERTY. 
 
 Actual value must control in larceny. State v. Dopeke, 257. 
 Of promissory note. State v. Fenn, 248 ; State v. Thatcher, 393. 
 Of receipt for money paid. People v. Bradly, 308; State v. 
 
 Thatcher, 392. 
 False representations as to the value of land not within the statute 
 
 of false pretenses. Keller r. State, 361. 
 Of money how alleged. Reside v. State, 68 ; Goodhue v. People, 
 
 113; State v. Boody, and note, 138; Williams v. State, and note, 
 
 338 ; Simpson v. State, and note, 348. 
 Aggregate value when alleged must be proved. Ware v, State, 362. 
 
Indkx. 433 
 
 VARIANCE . 
 
 When fatal to a prosecution for embezzlement or larceny. R. v. 
 Watson, 13 ; R. v. Bazely, 14 ; Kribs v. People, 18 ; Simco v. 
 State, 30; State v. Kent, 78; Nichols v. People, 183; Goodall 
 V. State, 387 ; Simpson v. State, and note, 343 ; Ring v. State, 369. 
 
 When fatal to a prosecution for obtaining goods by false pretenses. 
 People V. Haynes, 338 ; People v. Jacobs, 355 ; State v. Ander- 
 son, 371 ; People v. Williams, 380 ; Kellogg v. State, 384. 
 VENUE. 
 
 Change of complete, when order is made for. Goodhue v. People, 
 113. 
 
 Upon a charge of obtaining property by false pretenses, the trial 
 must be had in the county where the property was obtained, 
 not where the contract was made. Skiff v. People, 358. 
 VERDICT. 
 
 General verdict of guilty when good. Murphy v. People, 157 ; 
 State V. Hennessey, 334; Wilson v. State, 337; Lowe v. State, 
 833 ; Irwin v. State, and note, 334. 
 VIOLENCE. 
 
 When sufficient in robbery. R. v. Lapire, 333; McCloskey v. 
 People, 333. 
 
 WIDOW. 
 
 The owner of personal property left by her husband. Crockett v. 
 State, 247. 
 
 WIFE. 
 
 See Husband and Wife, Married Woman.