Commonwealth v. Barry, 125 Mass. 390

Commonwealth v. Barry

125 Mass. 390 | Mass. | 1878

Lord, J.

We do not understand that the presiding justice intended, by the language used, to instruct the jury that the temporary possession referred to in the instructions was, in itself, an asportation. It does not appear that the question, whether there was an asportation at or before the changing of the checks, was raised at the trial, or that the attention of the court was called to that subject. An asportation at that precise time was unimportant. The real question was, whether the defendant then, feloniously and with intent to steal, set in motion an innocent agency, by which the trunk and contents were to be removed from the possession of the true owner, and put into the defendant’s possession, and by means of such agency effected the purpose; and the temporary possession and control, to which the court referred, must be understood to mean such possession and control as enabled the defendant to execute the device by which, through such innocent instrumentality, he should become possessed of the property.

There was evidence tending to show that the defendant and Briggs were acting in pursuance of a common purpose, and that he acts of each were the acts of both; and, inasmuch as no question was raised upon this subject, it is taken to be true, that what one did was the act of both, and that the subsequent actual possession of the trunk by Briggs was the possession of the defendant. It will be seen, therefore, that, by the instructions of the presiding judge, the jury were authorized to find the defend ant guilty of larceny, if, in the mode stated, he or his confederate in action obtained possession of the trunk and its contenta

*393This, as we understand, has been the law from the earliest period : “ There is no occasion that the carrying away be by the hand of the party accused, for if he procured an innocent agent to take the property,” by means of which he became possessed of it, “ he will himself be a principal offender.” 3 Chit. Grim. Law, 925. It is held to be a larceny “if a person, intending to steal my horse, take out a replevin, and thereby have the horse delivered to him by the sheriff; or if one, intending to riñe my goods, get possession from the sheriff, by virtue of a judgment obtained without any, the least color or title, upon false affidavits, &c., in which cases, the making use of legal process is so far from extenuating, that it highly aggravates the offence, by the abuse put on the law, in making it serve the purposes of oppression and injustice.” 1 Hawk. c. 33, § 12. 1 Hale P. C. 507. Chissers’ case, T. Raym. 275. Wilkins’ case, cited in 1 Hawk. c. 33, § 22 ; S. C. 1 Leach, (4th ed.) 520. It will thus be seen that an asportation may be effected by means of innocent human agency, as well as by mechanical agency, or by the offender’s own hand.

The case has been argued as if it was intended by the presiding justice to rule that the jury must find that, at the instant of the exchange of the checks, there was such an actual manual change in the possession as of itself to be an asportation. We do not so understand the instruction. An asportation at that time was unimportant. The real question was, whether the defendant at that time, feloniously and with intent to steal, set in motion an innocent agency, by which the trunk and contents were to be removed from the possession of the true owner, and put into the defendant’s possession, and whether such purpose was actually accomplished. If, before the trunk had been started, the scheme had been detected, the offence of the defendant would have been an attempt to commit larceny, and doing an act towards the commission of it, but failing in the perpetration ; but, as soon as the asportation was complete, for however short a distance, the offence of larceny was committed, such asportation having been caused by him, by fraudulent means, and through an innocent agent, unconscious of what, in fact, he was doing. As soon as the trunk was placed on board the cars, checked, with the corresponding check in the possession of tho *394defendant or his confederate, the trunk and its contents were in the possession and control of the defendant or his confederate, and it is immaterial of which. Nor is the time when the actual manual possession came into the hands of the parties important, they having all the time the constructive possession and the real control of it.

The instructions prayed for by the defendant’s counsel were properly refused, because they wholly omitted all reference to the purpose and intent of the defendant in what he did, and all reference to the fact that the defendant was an accomplice of Briggs, or that the actual subsequent possession by Briggs was, or might be, the possession of the defendant. The request to instruct the jury that, upon the whole evidence, they would not be warranted in finding the defendant guilty, was also properly refused. Exceptions overruled.