State v. Ruffin

Sep 24, 1913
Versions:
Hoke, J.,

after stating tbe case: At common law it was regarded as an essential feature, of tbe crime of larceny tbat tbe party charged should have acquired possession of tbe property against tbe will of tbe owner and ordinarily with intent to steal at tbe time. Tbe taking considered necessary to make out tbe offense involved the idea of a trespass on tbe possession of tbe owner, either actual or constructive. Tbe principle was held to include cases where possession was acquired from tbe owner animo furandi, by trick or fraudulent contrivance. S. v. McRae, 111 N. C., 665; People v. Miller, 169 N. Y., 339, reported with instructive editorial note, 88 Amer. St. Reports, 546. And convictions were upheld when tbe party charged bad only tbe cus- . tody of tbe property, tbe constructive possession remaining with tbe owner. Instances of this occurring when a servant or employee intrusted by tbe master with goods or money for a specific purpose, in breach of this purpose appropriates same to bis own use with felonious- intent. S. v. Jamis, 63 N. C., 528.

There is high authority for tbe position tbat tbe conviction in tbe present case .could'very well be sustained on tbe ground tbat defendant bad only the care or custody of tbe property, and not tbe possession. Murphy v. People, 104 Ill., 528; Walker v. State, 9 Ga. App., 863.

We áre not called on to determine whether this view is in accord with our decisions more directly relevant to tbe question presented, the defendant not being tbe servant or employee of tbe prosecutor (S. v. Copeland, 86 N. C., pp. 692-695; S. v. England, 53 N. C., 399; S. v. Martin, 34 N. C., 157), being of opinion tbat on tbe record the defendant has been properly con-vietéd, whether considered originally as bailee or only as custodian. It is tbe well established principle tbat “a bailee who breaks bulk and'appropriates tbe goods or a "part of them to bis own use with felonious intent is guilty of larceny.” 18 A. and *418 E., p. 479; Robinson v. State, 1 Coldwell, 122; S. v. Fairclough, 29 Conn., 47; Rex v. Jones, 32 Amer. Com. Law, 474; Rex v. Jenkins, 38 Eng. Com. Law, 27.

In Fairclough’s case, supra, citation is made from my Lord Golee as follows: “If a bale or pack of merchandise be delivered to carry to one at a certain place, and be goetb away with the whole pack, this is no felony; but if he open the pack and take anything out, animo furgndh, this is larceny.” 3 Coke’s Inst., p. 417.

In Robinson’s case, supra, the principle was applied where the prosecutor left his room and trunk unlocked in charge' of defendant, who in prosecutor’s absence opened the trunk and took money out of it with felonious intent.

And again in Rex v. Jones, supra, to a case where defendant broke open a letter intrusted to him to mail and abstracted money from same, the very case we have here, and is recognized as the correct position in S. v. England, supra, an authority to which we were referred by counsel.

There is-no error, and the judgment is affirmed.

No error.