4 Mo. 461 | Mo. | 1836
Opinion of the court delivered by
Norton was indicted for horse stealing, in the circuit court of St. Louis county. A verdict was found him, and judgment thereon; and he brought the case here by a writ of error. On the trial, the prosecution gave in evidence, that in the city of Saint Louis, one Gordon kept a livery stable. That on the 19 th or 20th of March 1836, Norton came to the stable of Gordon the witness, on Friday and hired of him a horse saddle and bridle, to go to St. Charles on the next day and to return the next day. That on Saturday, Norton came to the stable and got the horse and started off on the horse; and that Norton never returned the horse nor came back to give any account of the same. That about the first July afterwards, about night, some three weeks before the trial, the witness Gordon, went-to his boarding house and sat down, and Norton came in, walked by and ran nearly over witness: had on entirely different clothes then, from those he had on when he got the horse: had
For Norton the plain tiff in error, Mr. Risque contends, that if Norton obtained the horse on a hireing bona fide, without any intent to steal him when delivered, but af-terwards conceived the intent to steal the horse and did do so,it amounted to a mere breach of trust: to prove this doctrine correct, he cites 2 vol. E. P. of the crown, 655, 688, in which last case, Ashurst Judge, says that whenever there is a real bona fide contract and delivery, and afterwards the goods are converted to the parties’ own use, that is not felony. It is also contended by the counsel, that in this case, by the delivery to Norton, he had a special property in the goods, and the conversion of the same after the delivery to his own use, could not be felony; and cites 1st vol. Hale’s P. C. 504, 6, 8; 2 vol. E. P. 0. 552, 685-6, 7, 655; also, Archbold’s crim. law, 187; 2nd vol. Russell on crimes, 441, and 2 vol. E. P. C. 655. These authorities seem to establish this doctrine, that if there be a delivery of goods, by a hireing and the hireing-is found to be a mere device to get possession of the goods, and the bailee converts the goods to his use, it will-be larceny: but if when the delivery was made there was no intent existing in the miud of the bailee to convert the same to his use, but he afterwards conceived the design and did so, this would not be larceny, but a breach of trust. Mr. Bird, the prosecuting attorney, replies to these arguments, the late enactment of the general assembly, R. code, sec. 42, p. 179, which says: “If any carrier or other bailee, shall embezzle or convert to his own use, or make way with or secrete, with intent
This statute appears to us. to justify the instruction the court gave. Mr. Allen for Piorton, however contends, that this statute is subject to construction, and argues that the section is not to be extended to any bai-lee, but carriers and such as receive goods in boxes, packages &c.; and that the provision was only made to alter the rule of the common law, which provides that if a carrier of goods break open a package or box, and take a part of the goods out and convert , to his use, it will be larceny; but that if he will use or sell the whole package or box, it will only be a breach of trust. We admit that the common law would hold it to be larceny when a package was broken and a part of the goods only taken out and used; but why it should not also be larceny if the whole package were disposed of with a view to defraud the owner, is a thing not well understood by this court. We admit that' the statute does alter that rule of common law, and that it most clearly makes the conversion of goods by carriers, felony, though they convert or embezzle the whole package or box, without breaking the same. But we cannot agree with the counsel that the legislature intended to go no farther. Whether it be wise or unwise to extend the law to all bailees, is not a question for us to decide, if it be clear from the acts they have done that they have done so. That the legislature did not mean only to embrace common carriers, is to us apparent from the form of the enactment. , They say if any carrier or other bailee shall convert or embezzle any goods, property, &c.; though he break not the box or package in which he received the same, he shall be holden guilty of larceny. If only carriers were intended to be braced, why the words “or other ‘ bailee” should been inserted, no reason has or can be given. These words can have no effect according to-the argument, unless the'goods &c. should be delivered in a box or package, and as some things can be so contained and delivered, and some cannot, it is insisted that the statute only applies to those which can be and are so contained and delivered. In our opinion, the legislature intended to make it larceny in all bailees to embezzle and convert.
:‘JudgávWash absent.
