13 Gratt. 803 | Va. | 1856
delivered the opinion of the court:
This case presents for decision the question, whether the goods, of the larceny of which the prisoner was convicted, were taken by him against the will or without the consent of the owner.
Larceny, at common law, is the taking and carrying
If the prisoner had fraudulently converted to his own use a piece of plate, or other thing delivered to him for his accommodation as a guest in the tavern of the pi’osecutor, we have seen that he would have been guilty of larceny. If he had so converted to his own use a book handed to him to read for his amusement while he continued to be such guest, there can be no doubt he would have been guilty of larceny. Why does not the same principle apply to this case, in which the prisoner fraudulently converted to his own use a gun delivered to him “to shoot some robins” for his amusement while he continued to be such guest ? Is it because the gun was not to be used in the house? The rule under consideration does not require the property to be used in the house of the owner. Suppose the prosecutor had accompanied the prisoner when he went over the road to shoot the robins, and the gun had been converted in the presence of the prosecutor: Or, suppose the gun had been handed to the prisoner to shoot some robins in full view of the house, and that, instead of shooting them, he had walked off with the gun and converted it to his own use: Would he not, in either case, have been guilty of larceny? But the rule does not require that the property should be converted in the presence or the sight of the owner. Nor indeed does it require that the relation of master and servant, or landlord and guest, should exist between the owner of the property and the person converting it. No writer has
A difficulty sometimes arises in the application of the rule to other cases. Generally, though not always, where property is delivered to a person' who is not a servant or guest of the owner, or a member or visitor of his family, and to be used elsewhere than in the
Being of opinion that the delivery of the property by the prosecutor to the prisoner did not amount to a bailment, it is of course unnecessary to consider whether the evidence was sufficient to warrant the jury in finding.that the felonious intent existed at the time of such delivery; or whether, if such delivery
We are of opinioiTTEat there is no error in the judgment, and that it be affirmed.
The certificate of facts shows that the delivery of the property, of the theft whereof the-prisoner has been convicted, was made to him by the owner. In order, therefore, to vindicate the judgment of the Circuit court, it must, I apprehend, be shown, either that the delivery was fraudulently procured by the prisoner with a felonious intent, at the time, to convert the property to his own use, or that the purposes and uses with and for which the delivery was made, were of a nature so restricted and special as to leave the legal possession of‘ the property, notwithstanding the delifei'y, still exclusively in the owner, and to place the prisoner, on his subsequent conversion of the property, in the same predicament as if he had then acquired the possession, against the consent of the owner, and with a felonious design.
It must be conceded that the conduct of the prisoner is well calculated to produce the impression that he came to Sweeney’s with some bad design. It does not seem uncharitable to found, on the various false statements which he made to Sweeney about himself, his business, his plans, and his relationship and connexion with others, and his subsequent conduct in the conversion of the property of Sweeney, the suspicion that he was on the look-out for a favorable opportunity to practice some fraud on Sweeney, or perhaps to perpetrate a larceny of some of his goods. It must, however, I think, be also conceded that the conduct of the prisoner, in making these false- statements, is not irreconcilable with the idea that he designed and
The verdict of the jury, it is true, especially in respect to what it must be taken to say relative to the prisoner’s motives and designs, is entitled to great weight. Still, after allowing to the verdict the fullest weight authorized by the practice now prevailing in this court, I have been unable to discover, in the cer
Can it be sustained on the second ground ?
There can, I apprehend, be no doubt that when the delivery of goods is fairly obtained on hire or loan, no subsequent wrongful conversion of them pending the contract will amount to larceny.
There are, it is true, many cases in the English courts holding that when the purpose of the hiring or loan for which the delivery was made had ended, felony might be committed by a conversion of the goods. This doctrine, so far as it eould be invoked here, was, however, fully considered by the judges in the case of Rex v. Banks, 1 Russ. & Ry. Cr. Cases 441, and decided to be wrong.
It appeared that the prisoner had borrowed a horse for the purpose, as he said, of carrying a child to a surgeon. Whether he carried the child thither did not appear; but the day following, after the purpose for which he borrowed the horse was over, he took the horse in a different direction, and sold it. The jury (it is stated) thought the prisoner had no felonious intention when he took the horse; but as it was borrowed for a special purpose, and that purpose was over, when the prisoner took the horse to the place where he sold it, the judge presiding at the trial submitted it to the consideration of the judges whether the subsequent disposing of the horse, when the purpose for which it was borrowed was no longer in view, did not in law include in it a felonious taking. Upon consideration, the judges were of opinion that the doctrine on the subject asserted in previous cases was not correct. They held that if the prisoner had not a felonious intention when he originally took the horse, his subsequent withholding and disposing of it did not
I have seen no subsequent decision, in which the authority of this case has been questioned: And in the 2d vol. of Russell on Crimes, p. 57, the author, after citing the case, declares upon the force of it, that! it is now settled, that when the owner parts with the possession of goods for a special purpose, and the bailee, when that purpose is executed, neglects to return, and afterwards disposes of them, if such bailee had not a felonious intention when he originally took the goods, a subsequent withholding and disposing pf them will not constitute a new felonious taking, nor make him guilty of felony.
So again, at page 21 of his second volume, the author says that there were decisions to the effect that when the delivery of goods is made for a certain special and particular purpose, the possession is still supposed to reside unparted with in the first proprietor. And that if a watchmaker steal a watch delivered him to clean; or if a person steal goods in a chest delivered to him with the key for safe custody; or clothes delivered for the purpose of being washed : In all these instances he says the goods taken have been thought to remain in the possession of the proprietor, and the taking of them away held to be felony. But (he adds) unless in these cases the privity of contract under which the goods were delivered, appeared by some means to have been determined, it seems difficult to distinguish them from the cases of a goldsmith to whom plate is delivered to work or to weigh; a tailor to whom cloth is delivered that he may make clothes with it; and a friend who is entrusted with property to keep for the owner’s use; in which cases an embezzlement or conversion of the goods by the party to whom they are delivered, has
It is argued here, however, that as the prisoner was the guest of Sweeney at the time when he acquired possession of the gun, though he took it not only by the consent but at the instance of Sweeney, he does-not stand on the same footing as if no such relation between the parties existed. It is argued that, because of such relation, and the character of the license given to him, he is to be treated as having the bare custody of the gun, and that the exclusive legal possession must still, notwithstanding such custody, be held to have remained with Sweeney.
As the main stress of the effort to sustain the conviction was laid on this ground, I have made it the subject of the fullest examination and consideration in my power. But I have been unable to discover in the authorities to which I have had access, any sufficient warrant for such distinction. It is true, in Hale’s Pleas of the Crown, vol. 1, p. 505, it is said that he that hath the care of another’s goods hath not the possession of them, and therefore may by his felonious embezzling of them be guilty of felony; as the butler that hath the charge of the master’s plate, the shep-. herd that hath the charge of his master’s sheep. ' The like law for him that takes a piece of plate set before him to drink in a tavern, &c. for he hath only a liberty to use, not a possession by delivery.
So in East’s Crown Law, vol. 2, p. 682, after citing instances in which-the delivery had been held to con- - fer the bare charge or custody, as distinguished from
I can perceive nothing in these declarations and illustrations of general principles, from which to infer that there is any thing in the relation between a transient guest and the inn keeper, with whom- he is staying, which places the guest on a footing of criminal responsibility, in respect to the goods of the inn keeper, different from that which would be occupied by any other person to whom goods might be delivered for a momentary purpose to be accomplished in the house, or in the presence of the owner. Thus Í apprehend, in the case of the piece of plate, if instead of being placed before the guest to drink, it were handed to a mere stranger to admire its style or workmanship, and then hand it back to the owner, the carrying it away by the stranger with a felonious intent would be as clearly a larceny as if the same act were done by the guest. So I suppose if an artisan or mechanic should go into a room of an inn, by the direction or permission of the owner to repair the furniture, and he should avail himself of the opportunity feloniously to carry away the furniture, the measure of his guilt would be the same with that of the guest who should wrongfully convert any article of the landlord’s furniture put in his room for his temporary use. And so again, in the familiar case (so often mentioned in the books) of one invited to try the paces of a horse in the presence of the owner, and going off with the horse, I apprehend that it would make no difference whether the wrong-doer were the guest of the owner or a mere stranger. In either case, there would be a larceny of the horse.
The same author shows, I think, conclusively, that this fiction of the supposed superintendence and consequent exclusive legal possession, by the owner, of goods entrusted to another for a special use, can have no application (except in the case of servants) when, by the terms of the delivery, the goods are to be used neither in the house nor presence of the owner. For at p. 564, after stating that the rule holds universally in the case of servants whose possession of their master’s goods by their delivery or permission is the possession of the master himself, he adds, that supposing the maxim well founded, it leads to an important difference between the case of servants and others: for if there be a delivery of goods by a master to his servant for a particular purpose, and he embezzle them, it amounts to felony, although there be no evidence of a prior felonious intent at the time he received the goods; because even after the delivery to him the” goods continued in the legal possession of the master and not of the servant; and therefore the act of converting them fraudulently is in law a tortious taking from the possession of the master. But it is otherwise in the case of a legal delivery to any other than a servant; for then unless such delivery were procured by fraud and the jury find a previous felonious intent to convert the goods, existing at the
There are several English decisions, (some of which were cited at the bar,) in respect to the conversion of cattle by parties employed to drive them to market, which may seem at first view to be in conflict with the general principle asserted by East. But in those cases and in cases of a like kind, where convictions have been sustained, it will be found that the judges (when they have assigned the reasons for their opinion) have generally if not invariably declared that they regarded the accused as having acquired the charge or custody of the property as servants. If, however, some of these cases may still be considered as having established exceptions to the general principle, it cannot, I apprehend, be affirmed of any of them, that they have gone to the extent of placing the possession of one to whom property has been loaned, on the footing of the charge or custody by a servant of his master’s goods, or that they assert any doctrine from which to deduce that a transaction, which would otherwise be defined as a bailment, becomes a mere charge, by the consideration that the party to whom the property is delivered, is the visitor or guest of the owner.
But if it were so that the relation in which the prisoner stood to Sweeney could affect the case, it would,'
The prisoner, without any violation of the terms or spirit of the license given him, might, in pursuit of his game, have gone to any place from which he could return before the expiration of the time when his return might be reasonably expected. And he might thus have lawfully placed himself and the property in his possession during such time entirely beyond the control or supervision of Sweeney. And there is nothing in the record from which we can infer he did not. During such period the dominion of Sweeney over his property was to a certain extent, by his own consent, necessarily suspended by his want of the present power either to resume the possession, or to demand it, and place the prisoner in the position of a wrong-doer on his refusal to return it.
The transaction seems to me, therefore, to have all the features of a loan. As such, it invested the prisoner with a legal possession. In the subsequent conversion of the property he was guilty of no trespass, and consequently of no felony.
I am of the opinion that the prisoner is entitled to a new trial.
Judgment affirmed, for the reasons stated in the opinion of Moncure, J.