People v. Civille , 5 N.Y. Crim. 530 ( 1887 )

Brady J. (dissenting)

The appropriation of money held by an agent or trustee to his own use, is not a larceny under the provisions of section 528 of the Penal Code, unless it be done with the intent to deprive or defraud the owner of his property or the use or benefit thereof. The mere appropriation or use of the money may be an innocent exercise of dominion if the intention exist, to pay or restore it. It is the •animus furandi which creates the crime—the intention to make an absolute appropriation as contradistinguished from a temporary use without any design to defraud the owner or to deprive him of his property.

The intent—the quo animo is the ruling element of crime, and the section mentioned recognizes it in the language employed: “A person who with intent to deprive,” etc. If

the legislature meant that the mere use of money not his own by an agent although not with evil intent, constituted larceny, they would not have used the language employed and referred to.

The defendant was therefore entitled to the following charges : “ That if the jury believe that the defendant re.

ceived the $75, intending to account for it as usual and subsequently failsd to pay it over, because of hopeless insolvency, there would be no criminal intent.”

“ That if the defendant collected the rents for his clients :and deposited them with other funds in his bank, intending in good faith to account for the same at the end of each month and fails to do so through inability, he is not guilty of larceny.”

He was also entitled to the following :

“ That in a case of this nature evidence of good character becomes a very important element, and in close cases may very properly create that reasonable doubt which would entitle the defendant to an acquittal.”

The learned Recorder said in answer to this as to others that he would not charge other than as charged.

His observations about the evidence of good character were as follows:

“ The defendant has introduced evidence tending to show that he has heretofore borne a good character, five or six witnesses have testified to that effect. Evidence of good character is to be considered by you with all other evidence in the case, and you are to give it just such weight as you think it justly and properly entitled to and no more. In a doubtful case in my judgment evidence of good character is entitled to very great weight; and in a case where the reasonable doubt, to which I will call your attention shortly, would not otherwise exist, where evidence of good character is introduced it will sometimes create in the minds of a jury, that reasonable doubt, to the benefit "of which a person charged with the commission of crime is entitled to. But in weighing evidence of good character and considering it, the jury should also take into consideration the fact that men of highest character have been known to commit the very worst criminal of-fences.” .

This was not a correct expression either of the law or the facts of the case. What evidence was there that men of the highest character had been known to commit the very worst-criminal offences. And why therefore should the jury weave that into their deliberations ? What authority exists for any such ruling ?

If the word “ reputation ” had been used it would have been more felicitous, although equally erroneous, as the statement of a legal rule. The defendant was entitled to an absolute charge of the value of good character wholly separate and apart from any other man’s reputation or evil deeds. The effect of the charge was to deprive the defendant of all benefit inasmuch as it intimated however unintentionally, if it did not declare that men of good character might nevertheless commit the worst of crimes and. the defendant was one of the men. In this case the question of character was important, and the defendant should not have been deprived of the full extent of the rule which was even broader than claimed by the defendant’s counsel.

I think that injustice has been done in this case and that the judgment should be reversed and a new trial ordered.

Judgment affirmed.