Weston v. United States

29 F. Cas. 823, 5 D.C. 492, 5 Cranch 492

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: November 15, 1838
• Status: Published

Opinion

Cranch, C. J.,

after stating the case, delivered the opinion of the Court, (Thruston, J., dissenting.)

The facts stated in a bill of exceptions are to be considered by the Court exactly as if they had. been found in a special verdict; for the Court tells the jury what the law is upon the facts to be found by them ; and the only difference is, that if a special verdict be found, the Court decides the law after the facts are ascertained by the jury; and in giving an instruction at the trial, the Court decides the law before the facts are found. And the Court, in giving an instruction, can no more infer any fact not expressly stated in the prayer, than they can infer any fact not expressly ■found in a special verdict.

A court cannot instruct a jury that certain facts constitute a certain offence, unless every essential fact necessary to constitute the offence be included in the statement. And every instruction given to the jury upon an hypothetical statement of facts, must be as strictly justified by the hypothesis, as an opinion given upon a special verdict must be by the facts found by the jury; and in neither case can the court infer any fact from the facts stated, or found. Every fact to be inferred from facts stated, must be expressly found or stated.

There is no definition of larceny, to be found in the books, which does not include the fact of a felonious intent, or the animus furandi, as an ingredient necessary to constitute the offence. No other intent can be substituted. An “ intention to obtain money under a fraudulent and false pretence,” “ meaning at the time to appropriate it to himself under this pretence,” is evidence from which the jury may, when connected with other circumstances, infer the animus furandi, but it is not the animus furandi itself. There may be a fraudulent intent to obtain money, which may not be a felonious intent. So there may be a taking of money by a man, with intention to obtain it under a fraudulent and false pretence, and to appropriate it to himself under that pretence, which might not be a felonious taking, or a taking animo furandi. An instruction that such a case is larceny, without finding the felonious intent, or the intent to steal, is not perfectly correct in law.

There is a great difference between an instruction to the j ury, and a demurrer to evidence. In the latter case the question is, whether the evidence, with the aid of all the inferences which the jury may lawfully make from the facts proved, is sufficient tó justify the jury in finding the defendant guilty. The same question arises upon a motion for a new trial on the ground that the verdict is against evidence.

In such cases, the judges have been in the habit of saying that such and such facts amount to larceny; when it is evidently their meaning, that the convictions were right, that is, justified by the evidence; or, in other words, that the evidence was sufficient to justify the jury in convicting the prisoner, because it justified them in finding the animus furandi.

It is in this way that all the English cases which have been so profusely cited, came before the courts. In all of them the question was, whether the jury could in law, find the prisoner guilty,, upon the evidence stated as in a demurrer to evidence ; and, of course, leaving the jury to draw all the inferences which they could lawfully draw from the facts given in evidence; and in almost every one of them the jury was left to find the felonious intent.

Not one of them was upon a bill of exceptions taken to an instruction to the jury by the court upon an hypothetical state of facts. In some of them the judges were of opinion that the facts stated justified the jury in finding the felonious intent, and, consequently, in finding the prisoners guilty.

The English cases, therefore,' do not apply to this part of the case now before this Court; which is not upon a demurrer to the evidence, nor on a motion for a new trial; but is upon a bill of exceptions to an instruction given by the judge, that certain facts, per se, are larceny, without finding a felonious intent, or the animus furandi; instead of instructing the jury that the facts stated were evidence from which the jury might infer that the original taking of the money by the prisoner was with the felonious intent to steal it, and that if they should so find, they might find him guilty of larceny, as charged in the indictment.

Upon this bill of exceptions, the question is not whether the evidence was sufficient to justify the general verdict of guilty. If such were the question, I should think there was no error as to that part of the instruction to which the defendant has excepted, for which we could reverse the judgment. But as the judge did not make it a condition of the instruction that the jury should find the felonious intent, or the animus furandi, we think there is error, in the instruction, for which the judgment should be reversed and a venire de novo awarded. '

2. The second objection to the instruction' is, that the facts stated in that part of it to which the defendant excepted, do not show that the taking of the money was without the consent of the owner.

Before the judge could correctly instruct the jury that the case slated constituted larceny, we think he should have inserted a condition that the jury should find from the evidence that the defendant took the money without the consent of the owner. The finding of facts from which that inference might be drawn, is not a sufficient finding to constitute the case stated, per se, larceny. Judgment reversed, and venire de novo awarded.