Smith v. . People of the State of N.Y.

53 N.Y. 111, 1873 N.Y. LEXIS 377

• Court: New York Court of Appeals
• Decided: June 3, 1873
• Status: Published

Opinion

Allen, J.

The accused obtained the custody of the chattels and money of the prosecutor from his wife by a fraudulent device and trick, and for a special purpose, connected with the falsely represented necessities 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 felonious intent with which he received them. This constitutes the crime of larceny. The owner did not part with the property in the chattels, or transfer the legal possession. The accused had merely the custody; the possession and ownership remaining in the original proprietor. The proposition is elementary that larceny may be committed of goods obtained from the owner by delivery, if it be done ammo furandi. (Per Cowen, J., Gary v. Hotailing, 1 Hill, 311; Am. Crim. Law, by Wharton, § 1847, et seq.; Reg. v. Smith, 1 C. & K, 423; Reg. v. Beaman, 1 C. & M., 595; Reg. v. Evans, id., 632.)

The rule is, that when the delivery of goods is made for a certain special and particular purpose, the possession is still supposed to reside, not parted with, in the first proprietor. It is stated that if a watchmaker steal a watch delivered him to clean, or if a person steals clothes delivered for the purpose of being washed, or guineas delivered for the purpose of being changed into half guineas, or a watch delivered for. the purpose of being pawned, the goods have been thought to remain in the possession of the proprietor, and the taking them away held to be a felony. (1 Hawk., P. C., 33, § 10; 2 Russell on Crimes, 22.) A distinction is made between a bare charge or special use of the goods, and a general bailment ; and it is not larceny if the owner intends to part with the property, and deliver the possession absolutely, although he has been induced to part with the goods by fraudulent means. If by trick or artifice the owner of property is induced to part with the custody or naked possession to one who receives the property cmimo furcmdi, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but the right of property also, the offence of the party obtaining them will not be larceny, but that of obtaining goods by false pretences. (Ross v. People, 5 Hill, 294; Lewer v. Commonwealth, 15 S. & R., 93; 2 Russell on Crimes, 28.) Here the jury have found the intent to steal at the time of taking, which is all that is required to constitute larceny, where the mere possession is obtained by fraud or trick. (Wilson v. People, 39 N. Y., 459; People v. Call, 1 Den., 120; People v. McDonald, 43 N. Y., 61.)

, The conviction was right, and the judgment must be affirmed.

All concur.

Judgment affirmed.