149 P. 956 | Mont. | 1915
delivered the opinion of the court.
On November 1, 1913, the defendant was charged by information in the district court of Silver Bow county with grand larceny as bailee. A trial upon his plea of not guilty resulted in his conviction of petit larceny and his sentence to a term of six months in the county jail. He has appealed from the judgment and an order denying his motion for a new trial.
The charging part of the information is as follows: “That at the county of Silver Bow, state of Montana, on or about the 9th day of July, A. D. 1913, and before the filing of this information, the said defendant then and there having in his possession, custody, and control, as bailee of Browne & Flannigan Company, a corporation, certain personal property, to-wit, money, in amount and of the value of $1,000, lawful money of the United States of America, did willfully, unlawfully, knowingly, fraudulently, intentionally, and feloniously appropriate said money to his own use, with intent in him (the said defendant) then and there to deprive and defraud the true owner, the said Browne & Flannigan, a corporation, of its said property, and of the use and benefit thereof, and to appropriate the same to his (the said defendant’s) own use.”
Several contentions are made in defendant’s behalf, among them that the verdict is contrary to the evidence. We shall notice this contention only, for the record discloses a state of facts upon which a conviction of either grand or petit larceny cannot be sustained. There is no material conflict in the evidence. The testimony of the state’s witnesses tends to show
The court adopted the theory that if the story of the transaction, as narrated by the state’s witnesses, was true, the defendant became the bailee of Browne & Flannigan Company and was guilty of larceny; but that otherwise the transaction was a loan and the defendant was entitled to acquittal. That this theory is erroneous is clear, when we note the legal distinction between a bailment created by the mere loan of a thing to be returned, and a loan for exchange. A bailment of this class is the holding of possession by one person of personal property for a temporary purpose, subordinate to the title of another, who, as between the parties, has the right of possession when the purpose of the bailment has been accomplished. (4 M. A. L., p. 71.) By accepting the property, the bailee does not acquire title, but acknowledges the bailor’s title, and assumes, with reference to the subject of the bailment, a position of trust and confidence, and this relation continues until the thing loaned is returned to the bailor or has been lawfully accounted for. (Pulliam v. Burlingame, 81 Mo. Ill, 51 Am. Rep. 229.) The bailee has a special property in the thing as against strangers, but as against the bailor no right, except such as he has acquired under the terms of the contract, and, when the purpose of the bailment has been served, this right ceases, and he is bound to return the thing to the bailor. A loan for exchange is defined by the statute as a “contract by which one delivers personal property to another, and the latter agrees to return to the lender a similar thing at a future time, without reward for its use.” (Rev. Codes, see. 5201.) “By a loan for exchange, the title to the thing lent is transferred to the borrower, and he must bear all its expenses, and is entitled to all its increase.” (Section 5203.) The subject of the loan thus becomes the property of the borrower, and he assumes, under the contract, not a position of trust and confidence with relation to the thing borrowed, but merely the obligation to repay the lender in kind at the time fixed by the contract. The
The obligation assumed by defendant to Browne & Flannigan Company was therefore not that of a bailee but of a mere debtor. That he accepted the check with the understanding that its proceeds were to be devoted to one purpose, and then devoted them to a different purpose, thus violating faith to the company, is not of importance in determining the question whether he became criminally liable. The title to the money having passed to him, his appropriation of it to a use, other than that for which it was advanced, did not amount to a conversion of it, without which he could not commit larceny under the statute. (Rev. Codes, sec. 8642.) For under the second subdivision of this section, under which the charge in this case was preferred, title to the subject of the larceny must be vested in a person who, for the time being, has intrusted its custody or control to the person who is charged with having misappropriated it. However reprehensible, therefore, the conduct of the defendant may have been, he was not guilty of larceny. The trial court should have directed his acquittal.
It may be remarked that, under the facts disclosed in this
The judgment and order are reversed, and the cause is remanded to the district court, with directions to discharge the defendant.
Reversed and remanded.