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Zink . People.

property absolutely, and not merely with the temporary possession of it, the result is the same; for by reason of the consent there is still no trespass, therefore no larceny." So it was held where the prisoner was the prosecutor's servant, his duty being, in the absence of the clerk, to purchase on his master's behalf any kitchen-stuff brought upon the premises for sale. On one occasion, he falsely pretended to the clerk he had bought some stuff for a sum named, which sum he demanded, and it was paid out of his master's funds. The court held, that as the money was voluntarily parted with, and was not to be returned, the transaction was not larceny, but false pretenses (Reg. v. Barnes, 2 Denison C. C. 59; S. C., 1 Eng. L. & Eq. 579).

In the case before us, there was no expectation on the part of Schelly that the malt should be returned.

Again, larceny implies a changing of property, and to be effectual must deprive the owner not only of the possession but the property. If, therefore, the consent of the owner is to a transfer of title, however that transfer is to be brought about, there can be no larceny.

In this case the jury might have found, had the question framed by the prisoner's counsel been submitted to them, that Schelly sent the malt to Zink, intending Zink should sell the same, and convey a title to the purchaser. In view of such a finding, if the rule is as we have above suggested, there would be not larceny. It should be observed that no person was indicated as the one to whom Zink should sell, but he had general authority.

Schelly was parting with the property, expecting at some future time to receive from Zink the proceeds.

In Ross v. People (5 Hill, 294), a conviction for larceny was reversed, because, says CowEN, J., "the goods were delivered by the owner with the intention to sell them," and this although the pretended purchaser "obtained them by false pretenses, and a design

Zink v. People.

To the same effect is

ab initio not to pay for them."
Mowrey v. Walsh (8 Cow. 238), and the ground on which
People v. McDonald was placed by this court, in 43 N.
Y. 61, sustains the view we have endeavored to present.

The court say in that case, "If the prosecutor had intrusted the draft to the prisoner for the purpose of getting the gold, and the latter had obtained it and converted it, it would not have been larceny, because the prosecutor would have had no possession but that of the prisoner. . . . . It is quite clear that the prosecutor never intended to intrust either the draft or the gold with the prisoner." On the other hand, in the case before us, it is clear that Schelly did intrust the malt to Zink, in the fullest and most unreserved manner. He intended to part with its possession and control, and never expected its return. And, indeed, we might add also that it was disposed of in precisely the manner he expected it would be, though with a somewhat different result.

The learned counsel for the defendant in error, in support of the conviction, relies upon Hildebrand v. People (1 Hun, 19); Weyman v. People (4 Id. 511); Lewis v. People (67 N. Y. 322); Smith v. People (53 Id. 111).

We think there is a clear distinction between those cases and the present.

In Smith v. People (supra), the prisoner called upon a wife and informed her that her husband had been arrested, and had sent him to her to get some money for his discharge. She gave him some jewelry to pawn, and give the ticket and money to the husband. He did neither, and his story was false. He was indicted for larceny, and the conviction sustained, the court saying: "The owner did not part with the property in the chattels, or transfer the legal possession. The accused had merely the custody, the possession and ownership remaining in the original proprietor.

Zink . People.

"The rule is, that when the delivery of goods is made for a certain, specific and particular purpose, the possession is still supposed to reside, not parted with, in the first proprietor.

"A distinction is made between a bare charge or special use of the goods, and a general bailment; and it is not larceny if the owner intends to part with the property and deliver the possession absolutely, although he has been induced to part with the goods by fraudulent means. If by trick or artifice the owner of property is induced to part with the custody or naked possession to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but right of property also, the offense of the party obtaining them will not be larceny, but that of obtaining goods by false pretenses."

Hildebrand v. People was not considered in the supreme court, but on review this court say: "We do not think the prosecutor should be deemed to have parted either with possession or a property in the bill. It was an incomplete transaction, to be consummated in the presence and under the personal control of the prosecutor. There was no trust or confidence reposed in the prisoner, and none intended to be. The delivery of the bill and giving change were to be simultaneous acts, and until the latter were paid the delivery was not complete. The prosecutor laid his bill upon the counter, and impliedly told the prisoner he could have it upon delivering to him $49.90. Until this was done, neither possession or property passed, and in the meantime the bill remained in legal contemplation under the control, and in the possession of the pros ecutor."

In the Weyman Case (4 Hun, 511), the question came up. On a memorandum order certain articles

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Zink . People.

were applied for "for the purpose of showing a customer, and enabling him to select which, if either, he would take, and if he accepted either, the money and the other articles were to be returned."

In Loomis v. People (67 N. Y. 322), the court say, it cannot be deemed that the prosecutor intended to part with the possession or the ownership of the money. It was handed over for a particular purpose with no intention to loan it, or surrender the title, and it was only in case of its loss that other money was to be procured upon the check. Great importance is attached to the fact that it was passed over for a temporary purpose, and the learned judge who delivered the opinion says, the case is on the border line. While considering the distinction between larceny and false pretenses, he says: "It will be observed that the intention of the owner to part with his property is the gist and essence of the offense of larceny, and the vital point upon which the crime hinges and is to be determined."

None of these cases determine or indicate any principle upon which the conviction in the case before us can be sustained.

In all of them the property was placed in the hands of the wrong-doer for a specific purpose. In none of them was the legal possession changed, nor was there an intention to part with the title or interest in the property.

In the case before us the prisoner lawfully acquired the absolute possession of the property, a title, by the voluntary act of the prosecutor, a special property in it, and right of possession even against the prosecutor, because, in accordance with the very terms he prescribed, Zink paid freight upon its carriage.

In none of the cases referred to can the property be said to have been intrusted to the prisoner: here it The prosecutor reposed confidence in him,

was.

VOL. VI.-28

Whitney v. Daggett.

trusted the property to him for sale to such a person as he might elect, intended to part with his title, and never expected to see the malt again. He intended to part with his property before he received the money; the two events were not to be simultaneous. His consent to the transfer of the property was full and without conditions, and in such a case there can be no larceny, although the consent was obtained by fraud. We think the exception to the charge of the trial judge was well taken, and that he should have charged as requested by the prisoner's counsel.

Therefore, the judgment of the supreme court, and the conviction, should be reversed and a new trial granted.

All the judges concurred.

WHITNEY v. DAGGETT.

Brooklyn City Court; Special Term, May, 1879.

COSTS.-JURISDICTION OF JUSTICE'S COURT.

In any action of the subject-matter of which a justice of the peace has no jurisdiction, plaintiff's right to costs is not impaired merely because he recovers less than $50.

This action was brought by William B. Whitney, et al., against Albert Daggett, late sheriff of Kings county, for failing to execute an order of arrest in a civil action, and for falsely returning that the defendant in said order could not be found. Plaintiff recovered a verdict of $25, and the question presented is, which party is entitled to costs?

William B. Hurd, Jr. (Fisher, Hurd & Voltz, attorneys), for plaintiff.

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