Ingraham, J.:
An, information was laid before Joseph F. Moss, one of the city - ■‘magistrates, who proceeded to take the depositions of the witnesses - produced, from which the following facts appeared : That the New Y orle Life Insurance Company is a domestic corporation of which John A. McCall was president and the relator, Géórge W. Perkins, vice-president; that in November, 1904, there was an election for President of the United States, and Mr. Cornelius-N. Bliss w.as the treasurer of the Republican national committee; that Mr. Bliss came to the relator and informed him that' Mr, McCall, the president of the .New York Life Insurance Company, had promised him that the corporation would contribute the sum of $50,000 or so much thereof as might be necessary for the purposes-of the national campaign, and had requested Mr. Bliss to see the relator “in reference thereto; that at a . subsequent interview* with "Mr. McCall he informed -the relator that demands were being made upon him for political' contributions by the company which it did not "seem to ■ him it Would be for the interest of the company to make-; that, it Would make it easier for him to refuse such demands if the payment to the Republican national committee was not at -that time . made directly from the funds of the company; that Mr, McCall asked the relator tb see Mr. Bliss and tb make the payments per-' sotially, and said that he Would see that the matter was taken care of later on; that in pursuance of this request the relator advanced to Mr.- Bliss from -his own resources various sums amounting- to $48,500; that during the month of-December, 1904, the Subject [331]*331of the relator’s reimbursement for these advances was discussed between the relator and Mr. McCall, when it was concluded to take the matter up with the members of the finance committee, of which Mr. McCall and the relator were members; that subsequently, at a meeting of that committee at which the relator and McCall were present, McCall stated to tlie'committee that on behalf of the company he had promised Cornelius H. Bliss that the Hew York Life Insurance Company would give to Mr. Bliss, in his capacity as treasurer of the Republican national committee, and for use in the presidential campaign then in progress, a sum not to exceed $50,000, and that the relator had advanced to Mr. Bliss pursuant to said agreement the sum of $48,500; that McCall did not ask that the committee, as a committee, take official action upon this statement, but desired to inform the committee of the facts; that the matter was then discussed by the committee, but no vote Was formally taken and no entry made in the minutes of the committee of the transaction; but it was the expressed opinion of those present that Mr. McCall should cause Mr. Perkins (the relator) to be reimbursed for the sums advanced out of the funds of the Hew York Life Insurance Company; tliat some time after this meeting, and on the 30th of December, 1904, the treasurer of the Hew York Life Insurance Company drew a check payable to the order of Messrs. J. P. Morgan & Co. for $48,702.50 ; that on that .day there was a charge on the. books of account of the company to the “ Hanover office account charged.— Treasury Department. Cheque to J. P. Morgan & Co.,” and in the ledger, “ By order of President, $48,702.50;” that these entries were made by the bookkeeper in the form usually employed in the books of the company where disbursements were made upon the 'order of the president and in the accustomed form of entering transactions by the company ; that the relator had no control over the funds of. the company, had no knowledge of its books and gave no order to the company in relation to this transaction ; that this check was subsequently collectéd by J. P. Morgan & Co., and the proceeds placed to the credit of the relator.
Upon these depositions the magistrate issued a wárrant for the arrest of the relator charging him with the crime of grand larceny in the first degree. Under that warrant the relator was arrested. [332]*332He immediately sued out a writ of habeas corpus and a writ of certiorari^ claiming that on these facts he was not. guilty of a crime. The court at Special - Term, upon the return to .these writs, held that a crime was charged, dismissed the writs and remanded the -relator to custody, and from the order entered thereupon the relator appeals to this court. " . ?
Upon this appeal the Only question that, has been argued "is whether oil these facts- the relator was guilty of a crime. In the discussion of this question It must be understood that we are not now concerned with the civil responsibility of the. relator to the company . What -is said relates solely to the question whether or not the relator is guilty of the crime of grand larceny, for which he was in custody when these writs were obtained.
Under sections 148 and 149 of the Code Of Criminal Procedure, when an information is laid before a magistrate, charging -the ■ commission of a crime, he must examine on oath the witnesses produced, whosp depositions- must set forth the facts stated by the prosecutor and his witnesses.tending to establish the commission of the crime and the guilt of the defendant, and section 156 provides that if the magistrate is satisfied therefrom that the crime complained of lias been committed, and that there is reasonable ground to believe that the defendant has committed it, lié must issue a warrant of arrest. If, upon the facts stated in the depositions, no crime has been committed,, or there is.fiot reasonable, ground to believe that the defendant has committed it, the warrant is improperly issued and the defendant cannot be held under it. (Hewiit v. Newburger, 141 N. Y. 538.)
The crime charged is grand larceny in the first degree, under sections' 528 and 536 of the Penal Code. The- former, section provides“ A person who, with the intent- to deprive or defraud the true owner of his pro2ierty, or of the use and benefit thereof, or to. appropriate the same to the use of the taker, or of any other .person, *, * * having-in his possession, custody or control, as a bailee, servant, attorney, agent, clerk, trustee,' or officer of any person, association or corporation, or "as a public officer,-or as a- .person authorized by agreement,, or by competent authority, to .hold' or take sucli possession-, custody or. control, -any money, property; evidence ,of debt' or contract, article of [333]*333value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof, steals such property and is gúilty of larceny.” And as bearing upon the construction to be given to section 528, section 548 provides that, “ upon an indictment for larceny, it is a sufficient defense that the property was appropriated openly and avowedly Under a claim of title preferred in good faith, even though such claim is untenable.” Section 530 defines grand larceny in the first degree.
It is evident that there are two essential elements which must appear to justify a conviction for this crime: First, it must appear that the person charged intended to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to> appropriate the same to the use of the taker, or of any other person, and that the property was not appropriated openly and avowedly under a'claim of title, preferred "in good faith, even though such claim is untenable; and, second, it must appear that the person charged with the crime had in his possession, custody or control, as bailee, servant, attorney, agent, clerk, trustee or officer of a person, association or corporation, the money or property appropriated. Bearing in mind these two necessary elements, the question presented is, whether the deposition taken before the magistrate justified him in issuing a warrant against the relator.
The act of the president of this corporation in making a contribution to one of the political parties of the United States to aid in the election of its candidate for President, is the act which it is claimed was the misappropriation of this money of the corporation, which was the foundation of this charge. In considering the nature of this act, it must be borne in mind that such a contribution by a corporation was not prohibited by law. It is claimed, however, that the payment of money was ultra vires of the corporation, and, therefore, beyond its legitimate or authorized power. We may assume the correctness of this claim; but the money that was disposed of being the money of the corporation, if the contribution had been made by an order of the corporation itself, or with the assent of those constituting the corporation, no officer of the corporation would have been liable for making the contribution. That principle is established in this State béyond controversey. (Bissell v. [334]*334M. S. & N. I. R. R. Cos., 22 N. Y. 258.) In that ease it is-said, in speaking of contracts of corporations ultra vires: “ Undoubtedly such engagements may have the vices which sometimes infect the contracts of individuals.- They may involve a malum in se or .a malum prohibitum, and may be void for any cause which would avoid the contract of a-natural person. But where no such- vices exist, and the only defect is one of power, the contract cannot be void because it is illegal or immoral.” And the learned court then cites as an example the act of a bank making a contribution for -charity,, with- no. authority to engage in benevolent enterprises, and says: “ A subscription made by authority of the board of directors and under the corporate seal for.the building of a church or college or an almshouse would be clearly ultra vires, but it would not. be illegal; ” and after other illustrations-of the same character, continues : “ To apply the word illegality ’ to such transactions,, is to confound things "of a totally different nature. It is only private interests which are affected by them; and there is no statute or . rulé of the common law by which they become public offences.” This case has been followed by Bath Gas Light Co. v. Claffy (151 N. Y. 24) ; Moss v. Cohen (158 id. 240), and Holmes v. Willard, (125 id. 75).
There was no evidence before the magistrate that this corporation had not authorized -the contribution. The only evidence on the subject was the" deposition of the treasurer of the corporation that “ for many years the president of the company had exercised the power of ordering disbursements out of the-eompany’s funds upon his sole- personal authority,and, as far as lam aware, his right to do this had never been challengedand of one of the vice-presidents, of ' the corporation that “ said McCall, by virtue of his office, had power to make' disbursements known as- disbursements upon executive order.” It cannot, I think, be disputed, but that this act of making such a contribution to one of the political parties, not being prohibited by law, would have been perfectly lawful if made by an individual. Ho law and no declared public policy prohibits' the making of contributions to political parties, except for certain specified purposes stated in section 41 n of the Penal Code. - That being So, it follows that if the corporation had made this contribution, the illustration of Chief Judge Comstock in Bissell v. M. S. [335]*335& N. I. R. R. Cos.. (supra) would apply — that “ to apply the word ‘ illegality ’ to such transactions, is to confound things of a totally different nature. It is only private interests which are affected by them ■; and there is no statute or rule of the common law by-which they become public offences.” It would seem, therefore, to follow that, without some proof that the corporation itself did not authorize this transaction, or that the president had no authority to make such a contribution on behalf of the corporation, there was no evidence that a crime had been committed. When an unlawful and ¡criminal intent is essential, it is necessary to aver the unlawful and criminal intent which constitutes the crime. (Hewitt v. Newburger, 141 N. Y. 538 ; People v. Stevens, 109 id. 159.).
, The relator, however, was not the officer wlio made the contribution. The president of the company having the power, according to the evidence, to order disbursements out of .the company’s funds, his right to do so never having been challenged, informed a subor- ■ díñate officer of the company (the relator) that he had made an arrangement to make this contribution on behalf of the company, and requested the relator to make such a contribution out of his own funds, for which he was to he reimbursed by the company. Acting under this authority the relator paid the money to carry out the .obligation assumed' by the president on behalf of the company. There is no allegation that the relator had any knowledge that the president was not authorized by the corporation to make tins contribution. There is no act proved tv justify the inference that the" relator had any knowledge that the president of the company was acting without lawful authority to make the contributionno allegation that the president of the company had any intent to deprive this corporation of its' money for the use.of the relator, ór for any other purpose; and no. allegation and no fact alleged to justify an inference that in carrying out this transaction at the request of the president of the corporation, the relator had any intent to defraud the company, or to deprive it of its property, or to violate the law.
To one of the depositions upon which this warrant was granted there is a letter of the relator to the district attorney, stating his connection with the transaction, in which he says : “ When I made the advances above mentioned, and when I was reimbursed therefor, it never occurred to me that there could be any question as to the [336]*336propriety of such expenditure, which I believed to be for the benefit of the "company.” This admission of the relator being used as an admission, there being no fact alleged to justify the inference that the.relator had a" criminal intent in carrying out, on behalf of the company, the obligation which had been- entered into by.its president, there was no charge of a criminal intent, the only evidence - being .that the relator acted in good’ faith, flor is there an allega-' tion that the relator had the possession of or the control over the money of the corporation, or that the money he received" was in his possession, custody or control, as a bailee, servant, attorney, agent clerk, trustee or officer of the corporation, or that he appropriated any money of "the corporation which was in his possession or under - his control. The president of the corporation having incurred op its behalf a liability to repay this money to the relator, at a meeting of the finance committee of which the relator and the president were members, stated the facts to the committee', informed them of his promise to.Mr. BlisS and his arrangement with the relator by which the relator-had advanced the money to carry out that promise, and expressed to the finance committee his bpinion that the relator' should be reimbursed from the funds of the company. There is no statement that the relator advocated such repayment or in any way used his position .to obtain it. The matter was discussed • with the finance committee. lío formal action was taken by the committee, “ but it was the expressed opinion of those present that Mr. McCall should cause Mr. Perkins to be reimbursed for the sums so advanced out of the funds of the Hew York Life Insurance C.ompany.” There was thus no secrecy about the transaction. Before the company had disbursed a dollar of its money the facts were stated to the finance committee, and all of those present acquiesced in the suggestion that the president should repay to the relator what he had advanced.- Subsequent to this transaction the president of the company delivered to the firm of which the relator was a partner a cheek for the amount of the advance made, which was received by J: P. Morgan & Co. and by them credited to the relator.
Upon the argument it was-claimed by the learned district attorney that the crime for which the relator was sought to be held was .committed when he received from the corporation, the money to reimburse him for the claim that he had against the corporation [337]*337based upon the payment of his own money to fulfill an obligation incurred by the president of the corporation on its behalf. But the relator had paid his money on behalf of the obligation entered into-by the president of the corporation on its behalf. He certainly was entitled to claim that he should be reimbursed this money, and the receipt of the money of the corporation in payment of this claim, whether well founded or not, is by the provision of section 548 of the Penal Code a sufficient defense to the charge. It is, however, I think a complete answer to this'claim that the money which was received by the relator was not money that he had in his “ possession, custody or control ” as a bailee, servant, attorney, agent, clerk, trustee or officer of the corporation. At no time did this relator appropriate any money of the corporation- which was in his possession, custody or control as its officer or trustee.
It is claimed, however, that, as this money was in the possession, custody or control of McCall as president of the-company, and as McCall’s intention was to make this political contribution, which was an appropriation of the property of the company for the use of a person other than the true owner, and as the relator aided and abetted in the appropriation.of the money, he was a principal under section 29 of the Penal Code. That section pro.vides that “ A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, * * * is a principal.” But, as before stated, the . evidence before the magistrate was not sufficient to prove that McCall had committed a crime. But assuming that McCall made this arrangement for the contribution without authority from the corporation, the evidence does not establish that the relator- aided and abetted in the commission of the offense, if one was committed. He was not the moving party in making the contribution. It was not done by his command, inducement or procurement. His connection with it was in obeying a request of the president, so far as appears, in entire good faith and with no possibility of any personal advantage or benefit.
In Bouvier’s Law Dictionary (Vol. 1 [Rawle’s Rev.], p. 125), “Aiding and Abetting” is said, to be “ the offence committed by those persons who,, although not the direct perpetrators of a crime, are yet present at its commission, doing some act to render aid to [338]*338the actual perpetrator .thereof. * * * A principal in the second degree is he who is present, .aiding and abetting the fact to be done. . * * * Actual presence. is not necessary; it is sufficient. to be so situated as' to come readily to the. assistance, of his fellows,” .It. is stated generally in the American and English Encyclopaedia of Law (Vol. I [2d ed.], p. 264), that “in order that a person may be guilty as an' accessory before, the fact,, it is necessary, first, that, he should have shared the criminal or mischievous design of the principal, felon : and, second, that that design should have been substantially. effected through his incitement thereto; ” and, at page' 265, “ thb guilt, of an accessory before' the fact consists in his having incited to a crime afterwards accomplished.” As I understand, if the essential element in aiding and abetting in' the commission of a crime is taking an "active part, with a criminal intent, to commit .the crime. Certainly the act of the. officers and-employees of this .cor- " poration, in obeying the order of the president and preparing and delivering the check in repayment of money advanced by the relator, was not aiding and abetting, in the commission of a.crime;. In People v. Peckens (153 N. Y. 5.85), in speaking of section - 29 of the Penal Code, it is said: “It is expressly provided' by statute, that a, person who advises or procures the commission of a crime.' may be indicted and convicted thereof, although he was. absent when it was . committed! (Penal Code,. § 29.) Indeed, such'was the law as it previously-existed, the general rule being that what one does or procures to be done through the agency of another is to be regarded as done by him.” It was McCall who directed the payment of the money of the corporation; and the officers or employees of the company who'obeyed his direction in making that payment, without . intent to do.moré than carryout the instructions of. the. president of the corporation, were not, as 1 view it, responsible for the act.
I think, therefore, that it does not appear from these depositions before the magistrate, that a crime had been committed, or that there - , was reasonable. ground to believe that the .defendant 'was. guilty thereof; ,and the order appealed from should be reversed and the relator discharged, ■ ■ .. " , t
McLaughlin, J. (concurring):
Larceny, as defined in section 528 of the Penal Code, includes, every act which was larceny at common law and' in addition such [339]*339acts as formerly constituted false pretenses and embezzlement. (People v. Miller, 169 N. Y. 350.) The distinction between larceny at common law, embezzlement and false pretenses, as the same were formerly known, is clear and well defined. (1) If a person honestly and in good faith received possession of personal property in trust and thereafter converted the same to his own use, he was guilty of embezzlement. (2) If he obtained possession of the property by fraud — the owner intending, nevertheless, to part with the title as well as the possession—-then the ofíense was obtaining property under false pretenses. (3) If the possession, however, were wrongfully or fraudulently obtained, without the owner’s consent and without color of right, and with a felonious intent of converting it to the. use -of the taker or another,-then the ofíense was larceny.
Do the acts set out in the depositions — including the letter of the defendant upon which the warrant was issued — establish prima facie that the crime of larceny as now defined by the section of the Penal Code referred to, has been committed, and was there reasonable ground to ■ believe that the defendant committed it? This is the real and substantial question presented by the appeal. Unless it can be answered in the affirmative, then the order appealed from should be reversed, the writ sustained, and the relator discharged, because in that event the magistrate did not have jurisdiction to issue a warrant. To justify a magistrate in issuing a warrant for the arrest of a .person he must first be satisfied, from the facts presented to him, that a crime has been committed, and then, that there is reasonable ground to believe that the person for whom the warrant is asked committed it. (Code Crim, Proc. § 150.) This has been held by numerous authorities. (Swart v. Rickard, 148 N. Y. 264; Hewitt v. Newburger, 141 id. 538 ; McKelvey v. Marsh, 63 App. Div. 396.) And it- has alsp been held that where the facts are stated wholly upon- information and belief and the ground of the belief and" the source of the information are not given, that this is insufficient to confer jurisdiction upon a magistrate to issue a warrant. (People v. Cramer, 22 App. Div. 189; Warner v. Perry, 14 Hun, 337 ; Blodgett v. Race, 18 id. 132 ; People ex rel. Kingsley v. Pratt, 22 id. 300 ; People v. Olmsted, 74 id. 323.)
[340]*340. If ' the 'facts set out in the depositions upon which the warrant ■here; was issued be construed in the most liberal way consistent with a judicial determination, I am of the. opinion that such facts do not establish: that the crime of grand larceny in the first'degree has been committed, as the same.'is defined by.se.ctions 528 and 530 of. the Penal Code. First. Such facts certainly do not estaba lish' larceny as defined by the common law. The defendant had a right to give.pf his own funds to the chairman of the Bepubr lican national committee. There was no statute prohibiting such contribution, and such act was not, in and of itself, a crime. The relator made the contribution at the request .of the president of the ■insurance.company, with the express understanding"that it would repay him. Having made the -contribution, relying upon this' ’ understanding, he then had a claim against the insurance company for the amount advanced, and it is entirely immaterial, so far as ■ the question here presented is concerned, whether or not such claim could have been enforced in a civil action. The claim existed, and if, in satisfaction of it, the defendant received from the- insurance company the amount called for, in ■ good.faith, such reception.and . thei;eafter,retention did not constitute larceny. Of this there can be no doubt because the statute_ pi'óvides that upon an indictment for larceny (and the sufficiency of the depositions must be tested in the same way that the sufficiency of an indictment would be) it is a sufficient defensé that the property was appropriated openly and ' avowedly under a claim of title preferred in good faith, even,though the claim, were untenable. ■ (Penal Code, § 548 ; People v. Ouley, 7 N. Y. St. Repr. 795.) The money belonging to the insurance company, if appropriated, was appropriated “ openly and, avowedly by the relator, after all the facts had been stated to the finance committee, to, reimburse him for the money which he had previously advanced. ■ It was not stealthily taken, nor was there anything secreti ve about it. The f.act that the check was drawn payable to the order of J. P. Morgan & Co., and so entered on the insurance company’s books, is of no importance because it does no't appear that the relator had , anything to do with the .drawing óf the check, or had any knowledge of the entry in the company’s books. Besides, the check: was concededly for the purpose of reimbursing the relator for moneys which he had previously advanced. The finance committee knew [341]*341that the president was about to repay the relator for this advance out "of the funds of the insurance company by what is termed “ executive order.” There is not a single fact stated in the depositions '- from which a jury would have the right to find—and if they did it would be the duty of the court to set aside the finding—that the, relator-in receiving the money in satisfaction of his claim, feloniously inten'ded to deprive the insurance company of it; on the contrary, the only inference which can fairly and legitimately be drawn from such facts is that he believed he had a right to take it in satisfaction of his.claim. The depositions are defective in'that they do not show a felonious intent or any facts from which such intent can fairly be inferred.
In McCourt v. People (64 N. Y. 583) the plaintiff in error stopped ; at the house of the prosecuting witness and asked his daughter, who was alone at the time, fo,r a drink of cider. She refused to let him have it, and - he thereupon opened the cellar door, went into the cellar, although forbidden by her to do so, and carried away a pail of cider. He was subsequently indicted, tried and- convicted for burglary and larceny. On appeal the judgment of conviction" Was reversed, the court holding that the evidence failéd to show that the accused entered the cellar with intent to commit a crime, and while there was evidence of an intent to obtain a drink of cider, and thus deprive the owner of his property, there was an absence of the circumstances ordinarily attending the commission of a larceny, and which distinguished it from a trespass, and all of the circumstances were consistent with the view that the transaction was a trespass merely.
In People v. Woodward (31 Hun, 57) the defendant was xfound guilty of grand larceny in stealing a horse from the owner’s stable and then killing it. At the conclusion of the trial the court was asked to instruct the jury that “ If, before the taking of the- horse, the intent was to take it and kill it, the crime would not be a felony, but an offense under the statute classed among misdemeanors, under the term of malicious mischief.” The instruction was refused'and on this ground-alone, the judgment was reversed and a new trial ordered. The case is cited with apparent: approval in People v. Bosworth (64 Hun, 78). In Devine v. People (20 Hun, 98), while a bartender was stooping to get a bottle, an outsider reached over the counter [342]*342and took money from a drawer. He made ño' effort- td secrete it, and thereafter returned-, it to the barkeeper,, saying lie took it for. fun-. He was subsequently indicted, tried and convicted,- but on appeal it was held that the judgment -could not-stand, inasmuch as ■there were no facts or circumstances which justified a finding of ■felonious intent. In Abrams v. People (6 Hun, 491) a- quantity of cloth was. delivered to Abrams to be made into .coats' and then returned. He made the coats and then sold them and absconded with the proceeds. It was'held that he was not guilty of larceny unless he intended at the time he received possession of the cloth to steal the coats. The relator, therefore, in receiving the money, did not commit larceny at common law.
- Second. Nor did he obtain possession of the money by false pretenses. It was not only voluntarily given to him by 'the' president of the insurance company, but it was received openly and avowedly to reimburse him Tor what he had previously advanced. The Case ’is devoid of every element from which it could be claimed possession was obtained by false representation. . ' . . ",/
Third. The only remaining inquiry, then, is, was the money' received in trust and thereafter converted to his own use?,' To this question, it seems to'me, theré Can be but one answer. It was not received in trust; on the contrary, it was received' to satisfy the relator’s claim. But it is urged by the People that the relator -was vice-president of the insurance company; was chairman of the finance committee, and as such was charged in law with the custody of the company’s property, for which reason it. was Ids duty when the same was received to turn it over to the treasurer, or the proper custodian of the fund." It undoubtedly' was the relator’s duty to see to it, so far. as he could, that the company’s property was preserved and used solely for corporate purposes, but this did not pre>ent him from receiving money from the corporation in satisfaction of a just claim, nor did it make- him guilty of larceny if he received money from the corporation in satisfaction of. an illegal claim .if he believed he had a right to receive it. ■ It may be, that the payment to the defendant was an vMt'ct, vires act, for which reason ' an action could be maintained by the corporation to reclaim- or réeóver such money, but if this be assumed, it does not show the defendant w-as guilty of larceny in receiving it, inasmuch as there [343]*343are no facts stated, from which, as we have already seen, a jury would be justified in finding a felonious intent, which is absolutely necessary before one can be found guilty of the crime of larceny. To say that the defendant’s intent is a question for the jury is simply begging the question. As a general proposition, the intent of a person committing, an alleged criminal act is for the jury, but if, in connection with the act which is alleged to be criminal, there are other facts and circumstances which negative the existence of a criminal intent, or are consistent with innocence, then a conviction cannot be had and it is the duty of the court to so hold as a matter of law w'liether the question be presented, as here, or on demurrer to an indictment, or on motion to discharge the defendant at the close of the People’s case.
1 am of the opinion, therefore, for the' reason stated, that the order appealed from should be reversed, the writ sustained, and the relator discharged.
Patterson, J., concurred.