25 Del. 71 | New York Court of General Session of the Peace | 1910
charging the jury:
Gentlemen of the jury: — The indictment under which this case is tried, describes the defendant as the bailee of the property of Clara Earl, and charges that as bailee he embezzled and fraudulently converted the same to his own use. The state represents that Clara Earl gave $5 to the defendant with instructions to have it changed; that the defendant accepted the money for that purpose, but instead of having it changed, he kept it and fraudulently converted it to his own use. The defendant claims that if the money was in fact so given to him, he had no recollection either of receiving or misappropriating it, as he was at the time under the influence of liquor to an extent that not only robbed him of any recollection of the transaction, but made him incapable to form an intent to commit crime.
At common law as well as in this state, larceny has been defined to be the wrongful taking and carrying away of the personal property of another with a felonious intent to convert it to the taker’s own use, without the consent of the owner. State v. Kavanaugh, 4 Penn. 131, 53 Atl. 335. In this definition of the crime of larceny there are two gaps through which have escaped many wrongdoers who have taken and converted to their own use the
In this case the defendant is charged with embezzlement of money in his capacity as bailee, to sustain which the state must prove to you beyond a reasonable doubt, first, that the defendant was the bailee of property belonging to Clara Earl, which was the subject of larceny; and, second, that as such bailee he embezzled or fraudulently converted same to his own use.
A bailment in such a case consists in the delivery of some personal property, the subject of larceny, by one person to another, to be by him held or handled according to the purpose of the delivery, upon a contract, express or implied, that after the purpose has been
If you find that the state has established against the defendant the elements of the crime of embezzlement as they have been defined to you, beyond a reasonable doubt, by which is meant not a vague, fanciful or speculative doubt, but such a substantial doubt
The defendant neither admits nor denies that he received and converted to his own use the money intrusted to him; but defends on the ground that he was so intoxicated at the time the offense is alleged to have been committed, that he is mentally unable to recollect what transpired, and was mentally incapable of forming the intent necessary to make his act criminal.
Drunkenness as a defense has been well considered and long settled in the criminal law of .this state. To meet that defense in this case, it is sufficient for us to state to you that voluntary intoxication constitutes.ne ther excuse for, nor palliation of crime; nevertheless, in cases in which a specific or particular intent or purpose is an essential or constituent element of the offense, as in embezzlement, intoxication becomes a matter for consideration and is competent evidence on the question, whether, by reason thereof, the defendant was incapable of forming and entertaining such an intent or .purpose at the time the act was perpetrated. Therefore, if you find that the defendant was intrusted with the money of the prosecuting witness and converted it to his own use, but at the time was rendered by intoxication incapable of forming an intent to defraud the owner thereof, then the crime of embezzlement has not in point of fact been committed by him, and your verdict should be not guilty. If, however, you find that the defendant was at the time drunk, and that his mind was subject to hallucinations, exhilaration and other stimulating or depressing effects of intoxicants, nevertheless, if he retained a mental capacity to distinguish between right and wrong with reference to the particular act charged, and was mentally able to form and did form the fraudulent intent to defraud the prosecuting witness of her money, then your verdict should be guilty. State v. Hurley, Houst. Cr. Cas. 28, 36; State v. Thomas, Houst. Cr. Cas. 511, 526, 529; State v. Bowen, Houst. Cr. Cas. 91, 96; State v. Kavanaugh, 4 Penn. 131, 53 Atl. 335; State v. Di Guglielmo, 4 Penn. 336, 55 Atl. 350; State v. Jack, 4 Penn. 470, 475, 58 Atl. 833; State v. Truitt, 5 Penn. 466, 62 Atl. 790; State v. Adams, 6 Penn. 178, 65 Atl. 510.
Verdict, guilty.