Commonwealth v. O'Malley , 97 Mass. 584 ( 1867 )

Hoar, J.

We are of opinion that there was no evidence to sustain the indictment for embezzlement, and that the' conviction was wrong. The defendant had been previously acquitted of larceny upon proof of the same facts ; and it is therefore of great importance, to him, if the offence committed, if any, was larceny, that it should be so charged.

To constitute the crime of embezzlement, the property which the defendant is accused of fraudulently and feloniously converting to his own use must be shewn to have been entrusted to him, so that it was in his possession, and not in the possession of the owner. But the facts reported in the bill of exceptions do not shew that the possession of the owner of the money was ever divested. She allowed the defendant to take it for the purpose of counting it in her presence, and taking from it a dollar, which she consented to lend him. The money is alleged to have consisted of two ten dollar bills, three five dollar bills, a two dollar bill, and a one dollar bill, amounting in all to thirty-eight dollars. The one dollar he had a right to retain, but the rest of the money he was only authorized to count in her presence and hand back to her. He had it in his hands but not in his possession, any more than he would have had possession of a chair on which she might have invited him to sit. The distinctian pointed out in the instructions of the court between his getting it into his bands with a felonious intent, or forming the intent after he had taken it, was therefore unimportant. The true distinction, upon principle and authority, is that stated by the cases upon the defendant’s brief, that if the owner puta his property into the hands of another, to use it or do some act in relation to it, in his presence, he does not part with the possession, and the conversion of it, mima furandi, is larceny. Thus in The People v. Call, 1 Denio, 120, the defendant took a promissory note to endorse a payment of interest upon it, in the presence of the owner of the note, and then carried it off, and it was held that he was rightly convicted of larceny, although he might have first formed the intention of appropriating it after it was put in his hands. So where a shopman placed some clothing in the hands of a customer, but did not consent that he should take it away from the shop till he should have made a bargain with the owner, who was in another part of the shop, his carrying it off was held to be larceny. Commmwealth v. Wilde, 5 Gray, 83. See also Regina v. Thompson, 9 Cox Crim. Cas. 244; Regina v. Janson, 4 Cox Crim. Cas. 82. In all such cases the temporary custody for the owner’s purposes, and in his presence, is only the charge or c ustody of an agent or servant; gives no right of control against the owner; and the owner’s possession is unchanged.

Exceptions sustained.