57 Iowa 651 | Iowa | 1882
The defendant Rose filed an information before a justice of the peace of Hardin county, accusing the plaintiff Bruley of the crime of larceny. A warrant was issued and served by the defendant Waid, as special constable. A bearing having been bad, Bruley was discharged. He brings this
It is undisputed that he took the horses from Rose’s farm in Hardin county, and removed them to Butler county, where he was using them at the time he was arrested. The evidence is quite strong that at the time of the settlement Bruley delivered the horses to Rose as security; and we think that there was at least slight, evidence tending to show that Bruley, if lie had obtained the consent of Rose to his taking the horses at the time he took them, obtained such consent under a pretense of desiring to use them for a short time for a specific purpose, bat without the design of using them for such purpose, or of returning them, but of depriving Rose of his security. Bruley, it appears, was at the time living with his family on Rose’s farm. After the settlement, according to the testimony of two witnesses, he represented that he desired to use the horses to go to one Hayden’s early the next morning, a distance of about eight miles, in a westerly direction, and Rose consented that he might take the horses for that purpose, and no other. The same night Bruley took the horses and started easterly, with his
“The plaintiff was arrested upon a charge of larceny. He was not guilty of the crime charged, but it was not essential that he should have been guilty to exculpate the defendants of the responsibility of the prosecution.”
The defendants excepted to so much of the instruction as states that Bruley was not guilty of the crime charged.
The action of the justice of the peace in discharging Bruley is not conclusive evidence of Bruley’s innocence; and if he was guilty he is not entitled to recover in this action. Parkhurst v. Masteller, ante, p. 474. If there was any evidence tending to show that Bruley was guilty of larceny, then it was error to instruct the jury that he was not guilty.
The plaintiff contends that a pledgor cannot be guilty of larceny of the thing pledged, and especially after he has obtained possession of the thing by the pledgee’s consent.
Larceny consists in stealing, taking, and carrying away the property of another. Code, § 3902. It is said by the plaintiff that the title to a pledge remains in the pledgor, and that the interest of the pledgee in the thing pledged is not property.
There is, however, what is known as a special property, distinguishable from the general ownership. The doctrine is elementary that a bailee has a special property in the thing which is the subject of the bailment. Belden v. Perkins, 78 Ill., 449; Woodman v. Nottingham, 49 N. H., 347. A pledge is a species of bailment, and the rule as to a special property in the thing which is the subject of the bailment, in such case, is especially applicable thereto. Lyle v. Barker, 5 Binney, 457; Hoys v. Riddell, 1 Sandf., 248.
It may be conceded that as a general rule possession is an essential element of a pledge. Schouler on Personal Property, 513. It was held, indeed, in Bodenhammer v. Newson, 5 Jones (N. C.), 107, that a pawnee by giving up the thing pawned, though for a special purpose, loses his lien as between himself and the pawnor. See, however, as holding a different doctrine, Hutton v. Arnett, 51 Ill., 198; Haynes v. Reddell, 1 Sandf., 248. What the rule is in the absence of any deception or false pretenses we need not determine. Rose consented only that Bruley should take the horses for the purpose of going to Hayden’s, and the evidence was such that the jury would have been justified in finding that Bruley had no intention of using the horses for that purpose. Besides, the actual taking was in the night prior to the morning upon which he was to have the horses to go to Hayden’s. In no sense could Rose be deemed to have released his lien at that time.
Having determined that, if the horses were pledged to Rose, as there was, evidence tending to show, he had acquired a special property in them, and had not released his lien at the time they were taken, it only remains to be determined whether if the taking was with the felonious design of depriving Rose of his security Bruley was guilty of larceny. Our attention has been called to no case where it has been directly held that larceny of a thing pledged can be committed by the pledgor. But where a person has a special property in a thing which has been stolen, the property, in indictment for larceny, may be laid in the special or general owner. State v. Quick, 10 Iowa, 451; State v. Somerville, 21 Maine, 586; 3 Green-
In People v. Stone, 16 Cal., 369, it was held that a bailor may be guilty of stealing his own property, if his intent was to charge the bailee with the property. See, also, Palmer’s Case, 10 Wend., 165. We are satisfied that a pledgor may be guilty of stealing the thing pledged, and that there was evidence tending to show that Bruley committed such crime.
In our opinion the court erred in instructing the jury that Bruley was not guilty of larceny.
Reversed.