45 N.J.L. 448 | N.J. | 1883
The opinion of the court was delivered by
The plaintiff in error was indicted for grand larceny at the May term of the Union Oyer and Terminer, the indictment charging her with having feloniously stolen certain goods and chattels as the property of Thomas W. Sloan, above the value of $20. She was tried before the Quarter Sessions of that county, convicted upon the trial, and sentenced to nine months’ imprisonment at hard labor. The property was levied upon by Sloan as the property of Catherine Adams, under an execution which Sloan held, as constable, against her; the constable allowed the goods to remain at the house of the plaintiff in error, the place of the levy, she being informed of the levy. Before the time for sale under the execution, the plaintiff in error took and disposed of the goods.
The case comes up on exceptions to the refusal of the court to charge as requested, and upon the charge as made. The assignments of error present the question whether larceny may be committed by the general owner of property in taking it from one who has the special ownership, without felonious intent in such taking.
It is impossible, under ordinary circumstances, for one to commit larceny in taking possession of his own property, and the general owner of goods, in their lawful possession, has full dominion and control over such goods; but it seems to be well settled in the law that larceny may be committed by a man stealing his own property, if the taking be animo furandi, or with a fraudulent design to charge the bailee with the value of it. There is a passage found, ás early as the time of the Year Books, in which it is said “ if I bail to you certain goods to keep, and then retake them feloniously, that I should be hung for it, and yet the property was in me.” This passage is found repeated in all the leading criminal treatises, but
The next exception is as to what the court did charge on the subject of ownership. By the bill of exceptions it appears that the court said that by virtue of the execution and levy “ the constable became the owner of the goods levied upon until sold by him, and that if she took the goods, or assisted anyone else in the taking, she is guilty.” The part of the charge contained in this bill of exceptions is all we have of it. It would seem to be a sufficient statement of the law defining the rights which the constable acquires in virtue of a levy. It was made by the court in answer to the objection that the true ownership was not alleged in the indictment, and as respects
This case fails in resemblance to that of Palmer v. People, 10 Wend. 166, in this important feature: Palmer was convicted of having feloniously stolen property of one Jennings, who, as constable, had levied upon property by virtue of an execution against Palmer. The goods, by the officer’s consent, remained with Palmer, who subsequently sold the shingles and charged the constable with having taken them away, and brought suit against him for their value upon that false allegation. This proof was held sufficient, on the ground that it charged a felonious taking of his own property, with intent to charge the constable with the value of it, bringing the ease within the rule above stated as the ground of criminal liability. In this charge is found the broad proposition that any sort of taking or conversion by the general owner of property left in her possession by a constable possessed of the rights which a levy gives him, is a criminal act, and that of larceny. No
Whether the judge in other parts of his charge qualified the-expressions in the opinion excepted to, we have no means of knowing; the charge is not before us. We have nothing but this pointed statement of his views of the law. We must assume that this embraced his entire instruction to the jury upon the legal requisites of guilt, and it was erroneous in a way that must have prejudiced the defendant in her trial. I think the judgment, for this error, should be reversed and a new trial ordered.