Commonwealth v. Doane , 55 Mass. 5 ( 1848 )

Dewey, J.

The position taken by the counsel for the defendant assumes, that the facts testified to by the witness introduced on the trial were such as would authorize the jury to find, that the defendants received the possession of the pig iron by a purchase from the mates of the bark Ida; or, if not by a sale, that the taking was with the privity of the officers of the bark; and thereupon a question is raised, whether a larceny could be committed by the officers of the bark, of pig iron not in boxes, or bound up in parcels ; the counsel for the defendant contending, that in case of possession by a bailee or common carrier, there could be no larceny of the property unless there was an actual breaking open of a cask, or bundle, and a withdrawal of a part from the mass committed to his charge. If it were necessary to examine with particularity this doctrine of conversion by a bailee, and to ascertain the acts that would give a decisive character to such conversion, as properly falling within the class of cases denominated a mere breach of trust, or that of larceny, I apprehend no doubt could arise, as to the instructions here given being sufficiently favorable to the case of one standing in the relation of a bailee of goods:

Treating the case as one of a charge of larceny by the officers of the bark, the court instructed the jury, that if the officers of the bark fraudulently converted to their own use the whole of the iron, such conversion would not be larceny in them, or persons in privity with them ; but if they had separated a portion from the mass, and had retained the portion so separated, for the purpose of fraudulently converting the same to their own use, and had so converted it, this would be a larceny in them and those acting in privity with them ir such acts. This was an instruction sufficiently favorable b the defendants, if they had connected themselves with the officers of the bark, and if the officers (meaning by this designation the mates) could properly have been considered as the bailees of this property. But the greater difficulty, on the part of the defendants, in sustaining their defence upon the distinction between cases of breach of trust aiid larceny, arises from the fact that the defendants were not bailees, or standing in any such relation to this property. One of them had no connection with the bark, even as one of the crew. It is not a case, therefore, raising any question of the technical distinction between larceny and breach of trust. No foundation was laid for raising that question.

Independent of the question already stated, arising upon the general instructions of the presiding judge, it is further, however, insisted, that a new trial should be granted for certain alleged erroneous rulings, as to the competency of evidence offered by the defendants. 1st. As to the evidence offered to prove a custom for the officers of vessels to appropriate to themselves a small part of the cargo. The proposed evidence was objectionable: 1. Because the defendants were not officers of the bark, and therefore the custom was inapplicable to the case, if it would have furnished a justification to the officers of the bark, had they been on trial for the offence. 2. But such a custom could not be sustained as a legal custom. It wants the elements of a legal custom. A custom to take another man’s property and convert it to one’s own use, without consent, or giving an equivalent, is a custom bad on its face, and cannot be supported. Nor was the second question proposed to be put to the witness competent evidence. The inquiry was, whether instances had not fallen under the observation of the witness of mates of vessels having appropriated parts of cargoes under a claim of right, and, if so, what was the claim. It surely will not be contended, that the fact, that similar offences have been committed by others, would constitute any legal defence for the parties charged in the present case, and to that extent the question was clearly incompetent.

If it were intended to raise the question, how far it would be competent to show that such rights had been claimed by other mates, with a view to show that this was taken under a supposed right or claim of title, and not feloniously, the question, if the mate had been on trial, might have become material and pertinent; as such practice, and such claim by others, standing in the same relation to the property, might have laid a foundation for the argument, that there was no felonious intent, and that a party taking the property under a claim of right, though a mistaken one, might place his defence upon that ground. But the defendants could not sustain a defence upon this ground, as they stood in no such relation to this property, and could have asserted no right under such custom.

If the defendants could show a bona fide purchase by them of this property, that would have availed them without any such proof of acts of other mates. If they did not purchase the property of any body, but feloniously converted the same to their own use, then the proposed evidence could not avail them, if in the case.

We perceive no ground for sustaining any of the excep tions taken, and they are therefore overruled.

Judgment is to be rendered on the verdid,