Commonwealth vs. James White & another, 11 Cush. 483

Merrick, J. There appears to be no legal objection to the conviction of the defendant. The questions of fact which arose upon the trial were submitted to the jury, under suitable and accurate instructions in matters of law. The wrongful taking of goods by a party with an intent to assume them as his own, or to convert them to his own use, is a trespass merely. And in many cases the subsequent fraudulent appropriation and conversion of goods, the possession of which has been rightfully obtained, does not constitute a felony. Rosc. Crim. Ev. 472, 478; Arehb. Grim. Pl. 186.

But if a person by committing a trespass has tortiously and unlawfully acquired possession of personal property belonging to another, and. afterwards conceives the ptirpose of fraudulently depriving the owner of it, and in pursuance of that design, with a felonious intent, carries it away and converts it to his own use, he thereby commits, and is guilty of the crime of larceny. 1 Hale P. C. 507; 2 East P. C. 662; Regina v. Riley, 1 Dears. C. C. 149. This is the effect and substance of the explanation and statement of the law, made by the presiding judge upon the trial.

While the defendant was on his way to North Bridgewater, and also during the time of his return, until he fraudulently determined to appropriate and convert the horse to his own use, and until he did some act in execution of that purpose, he was only a trespasser; but he made himself a thief as soon as he drove or led away the horse, or made any disposition of him, with such a felonious intent. This, indeed, is not strenuously denied by his counsel, * who relies, in the defence, much more upon the objection, that no larceny was committed before the arrival of the defendant at Brighton in the county of Middlesex.

But it is clear that the crime had been fully committed at an earlier period.

The jury must have found, under the direction of the court, that the defendant formed the determination to take the property to Brighton and there dispose of it as his own, before “ the horses were shifted; ” and that he drove on in execution of that design until the horse became “ disabled by a fall.” Here, then, while the defendant was still in the county of Bristol, are developed the existence of all the elements of the crime of larceny; the unlawful taking, the ' felonious intent, and the fraudulent conversion of the property to his own use.

Upon such proof, a conviction was inevitable, and the verdict against the defendant must therefore be affirmed. Exceptions overruled.