State v. Watson , 41 N.H. 533 ( 1860 )

Doe, J.

Tbe facts and tbe instructions given to tbe jury, in this case, are substantially the same as in Hex v. Aickles, East PL Cr. cb. 15, sec. 106. Aickles bad agreed to discount a bill for one Edwards. Edwards delivered tbe bill to Aickles, and referred bim to one Wells, wbo bad accepted tbe bill, and wbo was present, to satisfy himself that tbe acceptance was genuine. Wells declared it to be bis acceptance, and Aickles said to Edwards, if be would go witb bim to Pulteney Street, be would give bim tbe cash. Edwards replied that it was not convenient for bim to go, but that one Croxall, his clerk, would go witb bim, and conclude tbe business. Croxall went witb Aickles to bis lodgings, in Pulteney Street, where Aickles showed bim a room, and desired bim to wait while be fetched tbe money, saying it was only about three streets off, and be should be back again in a quarter of an hour. Aickles went away witb tbe bill and did not return. Tbe court left the case witb tbe jury, to consider, first, whether they thought the prisoner had a preconcerted design to get the note into bis possession, with an intent to steal it; and next, whether Edwards intended to part witb tbe note to tbe prisoner, without having the money paid first. The jury found tbe affirmative of tbe-first, and tbe negative of tbe second question, and concluded that tbe prisoner was guilty; and upon reference to all tbe judges, they held tbe conviction proper. Edwards did not give Aickles credit for tbe property of tbe bill, and that being the case, he could no more be said to have parted witb tbe property therein, nor, as it seems, witb tbe legal possession, than tbe tradesman could be said to do, who, being desired by a person coming into bis shop, to let bim see some cravats, put tbe goods into bis hands, and being asked tbe price, which he mentioned, tbe thief offiered less, and ran away with the goods, without paying for them. Abraham Chisser’s Case, T. Raym. 275. “This,” says Raymond, ^was felony; first, because be should be said to have taken these goods with a felonious intent, for the act subsequent, namely, bis running away with them, explained bis intent precedent; secondly, because, although the goods were delivered, yet they were not out of the owner’s possession, by the delivery, till the property was altered by the perfection of the contract, which was but inchoate, and never perfected between the parties; and when the prisoner ran away with the goods, it was as if he had taken them up, lying in the shop, and had run away with them. If credit be given for property, for ever so short a time, larceny cannot be committed by converting it. Where the delivery is by way of pledge or security, the property in the thing pledged remains in the owner, and, therefore, larceny may be committed of it, if such delivery were obtained fraudulently and with intent to steal. ”fi

The inquiry as to the owner’s intention is, whether, in making the delivery, he intended to part with the property, or only with the possession of the thing delivered. || If he parted with the property to the prisoner, by whatever fraudulent means he was induced to give the credit, it cannot be larceny. Where persons, led by fallacious appearances held out to them by a prisoner, or those with whom he was acting in concert, have given him credit for goods, which, without such fraud, he would never have obtained, and of which he previously intended to cheat the owners, and the property was intended to be transferred to the identical person to or for whom the delivery is made, this does in no case amount to larceny, because, however fraudulent the intent may be, there is no trespass in the taking, without which there can be no larceny or robbery. Where such credit is obtained by false pretenses, the legislature have supplied a particular remedy.# Where, by the delivery, a special property, and, consequently, a legal possession, apart from any felonious intent of the receiver, would be transferred, if it be found that such delivery were fraudulently procured, with a felonious intent to convert the property so acquired, the taking amounts to larceny. /, It is peculiarly the province of tbe jury to determine with what intent any act is done; and though, in general, he who has a possession of any thing, on delivery by the owner, cannot commit larceny thereof, yet this ’must be understood, first, where the possession is absolutely changed by the delivery, ar d next, where such possession is not obtained by fraud and with a felonious intent. For if, under all the circumstances of the case, it be found that a party has taken goods from the owner, though by his delivery, without any intention on his part to pass the property, and with an inient, on the part of the receiver to steal, such taking amounts to larceny. East Pl. Cr., ch. 16, secs. 102, 103, 105, 106, 108, 112. Rex v. Oliver, 4 Taunt. 274; R. & R. 215; Rex v. Williams, 6 C. & P. 390; Regina v. Small, 8 C. & P. 46 ; Rex v. Rodway, 9 C. & P. 784; Commonwealth v. Wilde, 5 Gray 83. Pear’s Case is the leading case on thb subject. East Pl. Cr., ch. 16, sec. 112. In Park’s Case, East Pl. Cr., ch. 16, sec. 103, the goods were delivered to the prisoner, who paid for them with worthless bills; but the fact that the bills were worthless, was not discovered by the vendor at the time. It was clear that the property, as well as the possession, had been parted with, upon receiving that which was accepted as payment, though the bills afterward turned out to be of no value. The vendor intended absolutely to change the ownership, and pass the title at the time of the delivery.

It is claimed that the verdict is against the evidence, upon the question of Hilton’s intention. Hilton testified that, when he gave the gold to the respondent’s brother, he did not expect to receive it back again, but expected to receive the silver up stairs. Hilton’s expectation related wholly to what the respondent and bis brother would do. He supposed that the respondent had the silver, that he and his brother would go up stairs and give him the silver, and keep the gold, according to agreement. His opinion or belief, as to what they would do, is not conclusive evidence of his own intention. If he had been asked what his intention was — whether he intended to part with his property in the gold until he should receive the silver — whether he intended, on delivery of the gold, immediately, unconditionally, and irrevocably to assign, relinquish and abandon all his right, title, and interest in it — he might have given answers that would have acquitted the prisoner; but if it had been supposed that he would give such answers, he would probably have been asked such questions. Upon all the evidence, it was competent for the jury to find that Hilton’s intention was not such as would entitle the respondent to an acquittal.

The instructions and ruling of the court were correct.

Judgment on the verdict.