State v. Humphrey

Poland, J.

The respondent’s counsel claim that, as the horse and Wagon came into his possession by the consent of Jennison, the owner, he was not guilty of the crime of larceny, although such consent was obtained by his own false and fraudulent pretence that he wished to hire the same to go to St. Albans merely, when in fact he intended thus to get possession of the property, and then to convert the same to his own use, and wholly deprive the owner of his property. The argument upon this point it founded upon the common definition of larceny, as given in the elementary books, that it is the felonious taking the property of another, without his consent and against his will, with intent to convert the same to the use of the taker.

It is said that in this case the taking was not without the consent and against the will of the owner, and therefore not a felonious taking.

But as is said by Mr. Archbold, “ this must be understood as meaning merely the absence of all free and voluntary consent upon the part of the owner to the party taking his goods and appropriating them to his own use.” Where the consent of the owner to the taking has been obtained by fraud and deception by *572 inducing him to believe that the taker wishes to obtain the property for an honest aiid temporary purpose, when in fact the design is to wholly deprive him of it, and where no consent would have been given if the real purpose had been diselosedy this is not regarded as any assent by the owner, and*the taking for the purpose and design of the taker is against the will of the' owner. A consent thus obtained is wholly nugatory, and the taking may be regarded as tortious, and the taker as a trespasser, both civilly and criminally.

The only authorities cited in support of this view, are Felter v. State, 9 Yerger 398, and some cases preceding that in the Stateof Tennessee. Those cases adopt the reasoning of the respondent’s counsel to the fullest extent. But the law is fully estaba lished otherwise in England, and so far as we are able to learu, in every State in the Union except Tennessee. It is so laid down by every elementary book on criminal law. It has been repeatedly so held in this State on trials in the county court, and has been regarded as so well settled as to have never before, to our knowledge, been brought before the supreme court. Indeed, in the Tennessee case it is declared to be a doctrine peculiar to that State, and admitted to be against the doctrine of the English courts and the other States. The general current of decision on this subject seems to us also to be founded upon the plainest principles of natural justice and good sense, and we do not think there is any occasion to abandon what has been so long regarded as a fixed rule of law in this State.

2. It is claimed that when the felonious taking is under a pretence of hiring or borrowing the property, the offence is not complete until the taker has converted the property by selling or disposing of it.

This certainly is not necessary in ordinary cases of larceny where possession of the property is obtained without the knowledge or consent of the owner. It is sufficient in such cases to show that the taker has obtained possession of the property and that the property is severed from the possession of the owner. Even when the thief is arrested upon the premises of the owner of the stolen goods, it is held that the offence is complete. This ingredient of the offence certainly is not included within the ordi *573 nary definition of larceny, that only requires a taking, etc.,’ “ with intent to convert the same to the use of the taker,” not that an actual conversion should be proved. It does not become necessary to decide in the present case whether the offence is complete before the property has been carried beyond, or put to any other use than that contemplated by the pretended and fictitious bailment. We do not see upon principle why it is not, as soon as the possession is obtained from the owner, provided the fraudulent and felonious intent be proved, for that very taking is of itself a conversion.

Practically, however, this becomes unimportant because in all this class of cases the evidence of the subsequent conduct and acts of the party, in making a different use of the property from that contemplated by the pretended hiring, and appropriating the property to his own use, furnishes the evidence that the original intent was felonious, and that the hiring or borrowing was a mere device to obtain the possession from the owner, and an ■opportunity to steal the property.

We have been referred to notes of decisions in the United States Griminal Digest of Lewer v. Corwin, 15 Serg. & Rawle, 93 , and State v. Lindenthall, 5 Rich. (S. C.) 237, in which it is stated to have been held that when one obtains possession of another’s goods by false representations, with the fraudulent intent to convert them to his own use, and does convert them to his moa use, it is larceny. We have not seen the cases, and do not know how far they warrant the doctrine of the note, that there must be an actual conversion by the fraudulent bailee to constitute the crime of larceny. The notes of these decisions do not seem to support the idea that the conversion must be by a sale of the property.

The facts proved in this case show an actual conversion by the respondent. Even if the hiring had been bona fide, and without any fraudulent design, the subsequent driving the horse and wagon from St, Albans to Shelburn, was an.actual conversion ■of the property by the respondent, and trover could have been maintained without any demand and refusal. Those cases therefore do not seem at all to conflict with the ruling of the court below in this case.

*574 The only case cited which seems to support the view, that there must be an actual disposal of the property in order to constitute the offence, is Regina v. Brooks, 8 C. & P. 295, 34 E. C. L., 396. That case is merely a nisi prim ruling of the late Ch. J. Tindal, whose nisi prius opinion we concede to be entitled to as much weight as that of any single judge.

In that case the defendant hired a horse and gig in London, to go to Windsor to be gone two days. Instead of going to Windsor he went in the opposite direction to Rumford, where he offered the horse and gig for sale, but was unable to effect a sale because his appearance and manner excited so much suspicion, and upon such suspicion he was there taken into custody ; Ch. J. Tindal directed an acquittal. The only reason stated by the reporter is as follows : “ Here has been no actual conversion of the property, only an offer to sell.”

The case seems to be identical almost in its facts with Spencer’s case, 1 Lew. 197, before Bayley, J. and Armstrong’s case, 1 Lew. 195, before IIolroyd, J., in each of which it was submitted to the jury to say if the original design in obtaining the property was to steal it, and if so, it was held that it was larceny.

Mr. Greaves, the English editor of the recent edition of Russell on Crimes, one of the most eminent of modern crown lawyers, treats the case of Regina v. Broohs as erroneous, and as conflicting with the other decisions in the English courts. We are unable to find that that case has been followed either in England or in this country. The reason given that there was no conversion of the property is unfounded, for the driving the horse and gig to another place was clearly a conversion. We feel justified in wholly disregarding the authority of that case, as opposed to both authority and reason.

The result of such a doctrine would be, that when property is thus obtained by a fraudulent device, the taker could never be convicted of larceny so long as he only kept the property for his own use, however effectually he might have deprived the owner of his property. The absurdity of the result is a sufficient answer to the proposition itself.

The exceptions are, therefore, overruled.