Ross v. People

5 Hill & Den. 294

• Court: New York Supreme Court
• Decided: May 15, 1843
• Status: Published

Opinion

By the Court, Cowen. J.

Several of the English cases hold that, though goods be obtained by false pretences and with a design, ab initio, not to pay for them, yet, being delivered by the owner with an intention to sell them, the pretended purchaser is not guilty of larceny. This distinction was followed in Mowrey v. Walsh, (8 Cowen, 238,) and must he adhered to. No doubt such a sale is a nullity; that it involves the moral guilt of larceny ; and that it is difficult to distinguish it in principle from larceny. Were the question, therefore, res nova in this court, I, for one, would follow the decision in Rex v. Campbell, (1 Mood. Cr. Cas. 179.) The decisions are, however, the other way, even in England, with the single exception of that case; and they have long been followed here. There is nothing so palpably absurd in this as to warrant our overruling them.

Judgment reversed.

(a)

See the remarks of Cowen, J. in Cary v. Hotailing, (1 Hill, 311, 315.)