105 Mass. 163 | Mass. | 1870
This is an indictment for larceny of a horse. At the trial, there was evidence tending to show that the defendant took the horse while trespassing upon his premises, with the intent to conceal it until the owner should offer a reward, and then to return it and claim the reward, or until the owner should be induced to sell it to him for a less price than its value.
The defendant requested the court to instruct the jury “ that if the defendant took the property when found trespassing upon his premises, with the intent to induce the owner to offer a reward, and then return the property and claim the reward, and not to deprive the owner wholly of it, then it would not be larceny ; also, that if the defendant took the property when found trespassing upon his premises, with the intent to induce the owner to part with his interest in his property at a price below its value, and not to deprive him wholly of it, it is not larceny.”
The court declined to give these instructions, but in substance instructed the jury, that if the defendant wilfully took the horse while trespassing upon his premises, either with the intent of concealing and retaining it until the owner should offer a reward, and then of returning it and receiving the reward, or with the intent of purchasing it from the owner at a price less than its value, and of concealing and retaining it until such purchase could be effected, such taking would be larceny.
We are of opinion that this ruling was correct. The fact that the horse was trespassing upon the defendant’s premises is immaterial, if at the time of the taking the defendant had the felonious intent necessary to constitute larceny. 2 East P. C. 659.
The question raised in this case has never been directly adjudged by this court. In Commonwealth v. Tuckerman, 10 Gray, 173, it was held that an indictment for embezzlement of money might be sustained, although the defendant had, at the time of the fraudulent conversion, the intent to restore the amount converted to the owner, and had property sufficient to secure its restoration. This decision is not conclusive of the case at bar, because, as the property embezzled was money, the act of
It may be difficult to reconcile all the decisions in England and this country, upon the question as to what intent makes a taking larceny, when the intent is not to deprive the owner wholly of his property.
In Rex v. Phillips, 2 East P. C. 662, the jury found that the defendants took the horses with the intent merely to ride them to Lechlade and to leave them there, and that they had no intent to return for them or to make any further use of them, and it was held to be a trespass and not larceny. There the intent was not to deprive the owner of his property in whole or in part, but merely to convert its use. The same point was decided in Rex v. Crump, 1 C. & P. 658.
In Rex v. Dickinson, Russ. & Ry. 420, the defendant took some articles of clothing belonging to a girl and carried them to a hay mow, where he had previously had unlawful connection with her, with the intent to induce her to come for them, in order that he might have opportunity for repeating the connection. It was held not to be larceny. Here was clearly no intent to deprive the owner of her property or any part of it.
In Regina v. Holloway, 2 C. & K. 942, and 1 Denison, 370, the defendant was indicted for stealing some dressed skins of leather; the jury returned a special verdict, “ that the prisoner took the skins not with intent to sell or dispose of them, but to bring them in and charge them as his own work and to get paid by his master for them.” The court held that it was not larceny. The skins had been dressed by another workman, and the purpose of the defendant was to cheat his master by obtaining pay for dressing them, and not to deprive him of the skins or their
We think these cases are distinguishable from the case at bar. The jury must have found, under the instructions given them in this case, that the defendant took the horse with the intent to conceal and retain it until he could obtain a reward from the owner, or until he could effect a purchase from him at a price less than its real value. The intent, in either contingency, was to deprive the owner of, and appropriate to his own use, a portion of the value of the property. We are of opinion that upon principle, and the weight of the authorities, the taking with such intent was larceny.
In The Queen v. Hall, 1 Denison, 381, the defendant took a quantity of tallow from his master, intending to sell it again to his master, and it was held to be larceny.
In Regina v. Manning, Dearsly, 21, and 14 Eng. Law & Eq. 548, the defendant clandestinely took a quantity of bags from his master’s warehouse, and placed them outside by the door, with the intent that an accomplice should receive pay for them as new bags furnished by him to the master; and it was held to be larceny.
In Regina v. O'Donnell, 7 Cox C. C. 337, the indictment was for feloniously taking a reward for restoring stolen property, being a mare. The chief justice of the common pleas ruled that “ if the defendant had got some person to take away the mare, with the intent of obliging the owner to pay a sum of money for the return of the mare, which in fact he knew he had no claim for, that was a felonious stealing of the mare; ” and the court of criminal appeal held that the ruling was correct.
The other exceptions taken by the defendant cannot be sustained. The questions put to the government witness in cross-examination, whether he had not offered in another case to suborn a witness, and whether he had not forged the name of the defendant and Francis D. Willard to certain notes, were inquiries
The defendant asked the court to instruct the jury, that there was no evidence that the defendant participated in or knew of the contract of sale of the horse to Mixter; the court gave the instruction with the addition “ unless the jury are satisfied from all the evidence in the case that the defendant was acting in concert with Mixter.” This instruction was sufficiently favorable to the defendant. The facts, that the defendant stole the horse, that Mixter soon after bought him at a small price, that Mixter and the defendant were shortly after together under the circumstances stated in the bill of exceptions, and that Mixter, after his purchase, at once and without difficulty, obtained possession of the horse, had some tendency to show that the two were acting in concert. Of its weight we are not to judge; but it was sufficient to go to the jury, and justified the ruling- excepted to.
Exceptions overruled.
