Anthony M. Dignowitty v. The State, 17 Tex. 521

Wheeler, J. The two grounds mainly relied on for reversing the judgment are, 1st. The charge of the Court; 2nd? The overruling the motion in arrest of judgment. Simple larceny is defined to be “ the felonious taking and carrying away, of the personal goods of another.” (4 Bl. Com. 239.) The felonious quality consists in the intention of the prisoner to defraud the owner, and to apply the thing stolen to his own use. (Id. 232 n.

(8) Am. from 18th London ed.; Arch. Cr. Pr. and Pl. 362 n. (1) 6 edit, by Waterman.) If, therefore, the intention of the accused was, as stated in the charge, to benefit himself, by depriving the owner of the property, it was felonious. As to the motive, though the charge does not use the word felonious in defining the crime, yet it requires the jury to find the intention of the accused to have been such, as necessarily to constitute the taking felonious, if the act of taking was such, as, under the circumstances to constitute the crime of larceny. Was it such?

There can scarcely be a possible doubt, that the intention of the accused, in asking to see the paper, was, to get possession of it, that he might destroy it. But the charge of the Court assumes, that it was not essential, to constitute the crime, that the felonious intent should have existed at the time the accused received the paper from the hand of the witness. And such is the law.

The felonious intent is an essential ingredient in the crime of larceny ; and it must exist at the time of the taking ; for no subsequent felonious intention will render the previous taking felonious. (Ib.) But where the offender lawfully acquired the possession of goods, but under abare charge, the owner still retaining his property in them, the offender will be guilty of larceny at Common Law in embezzling them. The principle is thus stated by Mr.

Russell, in treating of the cases where it appears the goods were taken by delivery or consent of the owner : “ It may, in the “ first place, be observed, with respect to those cases where the “goods are obtained by delivery, that, if it appear that, al- “ though there is a delivery by the owner in fact, yet there is “ clearly no change of property nor of legal possession, but the “ legal possession still remains exclusively in the owner, larceny “ may be committed exactly as if no such delivery had been “ made.” (2 Russ. on Cr. 21.) And the doctrine is illustrated by many adjudged cases.

Thus, if a master deliver property into the hands of a servant for a special purpose, as to leave it at the house of a friend, or to get change, or deposit with a banker, the servant will he guilty of felony in. applying it to his own use ; for it still remains in the constructive possession of the owner. (2 Bl. Com. 229, n. (3) and numerous cases there cited ; Whart. Am. Cr. L. 572, 2nd edit.) So in the case cited by the Attorney G-en’l. (The People v.

Call, 1 Denio, 120,) where the holder of a promissory note, having received a partial paymant from the maker, handed it to him to endorse the payment, and he took it away and refused to give it up, it was held that the possessisn remained in the owner, and that his subsequent conversion, being found to be felonious, was larceny ; that it was not essential that the felonious intent should have existed when the prisoner received the note. “ If it came “ upon him after the note had been received, and while he was “ making the endorsement, or subsequently, (the Court said) and was carried into effect by converting the property to his “ own use, it was larceny.” (Id. 124.) It was said, “ as every larceny includes a trespass, the t&k- “ ing must be from the possession of another.

But here it is neces- “ sary to discriminate carefully between what constitutes, in law “ a possession of property, and that which amounts only to its “ care and charge.” (Id. 123,) '■ Where one having only the “ care, charge or custody of property for the owner, converts “ it animo furandi, it is larceny, the possession, in judgment of “ law, remaining in the owner until the conversion.” (Whart. Am. Cr. L. 572.) The principle is certainly applicable and was rightly applied to the present case. The owner handed the paper to the accused, at his request, merely that he might see it.

She did not intend to part with the possession. Nor, in judgment of law, was she divested of the possession, while the paper remained, for a mere temporary purpose, in the hand of the accused. He merely had the privilege of taking it, for the purpose of inspecting it in her presence. And though it seems impossible to doubt that his intention, in applying to see it, was, that he might destroy it, yet that was not essential to constitute the crime. It was equally larceny if he conceived the intention afterwards, and at the very moment when he did the act.

It is certainly true, as counsel for the appellant have insisted, that there are cases where the taking amounts to no more than a trespass ; as where a man takes another’s goods openly before his face, or before other persons, other than by apparent robbery; or having possessed himself of them, avows the fact before he is questioned ; and where the prisoners entered another’s stable at night, and took out his horses and rode them a considerable distance, and left them at an inn, and were afterwards found pursuing their journey ¡.on foot,— on a finding by the jury, that the prisoners took the horses merely with intent to ride, and afterwards left them, not intending to return or make any further use of them, it was held trespass and not larceny. (2 East, P.

C. 662 ; Whart. Am. Cr. L. 557.) In all cases of this description, where the circumstances are such as show that the taking was not with a felonious intent, it will amount to no more than a trespass.

But it is otherwise where the taking is accompanied by circumstances which demonstrate a felonious intention ; as in the present case ; the accused pro- • fessing a wish to see the witness alone ; Ms pretence that he wished merely to see the paper ; the destruction of it, in order to enable him to sell the property for a greater sum; his representation to the person to whom he immediately proposed to “ sell, that he had got back Ms bond from Mrs.

Francis,” evidently intending to suppress and conceal the fact that he had destroyed it against her will, and to create the impression that the contract had been cancelled and the bond given up by her consent. The charge of th¿ Court fairly-submitted to the jury the question of intention ; and the circumstances seem to demonstrate that it must have been fraudulent and felonious, beyond a doubt. At least, the jury were well warranted by the evidence in so finding. The charge required the jury to find that the intention of the accused was to benefit himself.

In this it was more favorable to the accused than, in strictness, he was entitled to ask. There can be no doubt that was his intention ; and upon the facts of the case the charge was very proper. But to constitute the felonious intent, it is not necessary that the taking should be done lucri causa ; taking with an intention to destroy will be sufficient to constitute the offence, if done to serve the offender, or another person, though not in a pecuniary way. (2 Russ, on Cr. 3, 6th Am. from 3d London edit: 4 Bl. Com. 232, n. (8); Arch. Cr.

Pr. and Pl. 362, n. (1.) The supposed insufficiency of the indictment, which was the ground of the motion in arrest of judgment, is in that it does not describe, with the requisite certainty, the instrument which was the subject of the larceny. This objection is not tenable. In larceny the particular quality of the thing, or terms of the contract stolen, do not enter into or constitute an ingredient in the offence. Particular descriptions of the articles stolen are not therefore held to be necessary ; if it be described specifically by the name usually applied to it, that will be sufficient.

Thus, in an indictment for stealing" a book, it was held sufficient simply to describe it as a book of a certain value, and that the title of the book need not be stated. (1 Miss. R. 377 ; Whart. Am. Cr. L. 430.) And in statutory offences, the description given in the law creating the offence, has, in general, been deemed sufficient. (Id. 131.) “ This doctrine (says “ Wharton) is founded partly on the fact that the prosecutor is not considered in possession of the

article stolen, and is not “ therefore enabled to give a minute description ; and partly be- “ cause, notwithstanding the general description, it is made cer- “ tain to the Court from the face of the indictment, that a crime “ has been committed if the facts be true.” (Ib.) The indictment describes the instrument by its specific designation in the statute. (Hart. Dig. Art. 523.) and contains all the further certainty of description, which the authorities, and precedents in simlar cases, would warrant the Court in requiring. (Ibid.

Precedents of Ind’ts, by Wharton, 196, 197, et seq.) Nor is the objection to the conviction tenable, that the proof did not sustain the averment in the indictment, of property in Mrs. Francis. The rule is, that where one person has the general and another a special property in the thing, the property may be averred in the indictment to be in either. (9 Tex. R. 115.) And it follows that proof of either a general or special property in the alleged owner, will be sufficient to warrant a conviction. The proof puts it beyond doubt that Mrs.

Francis had a property in the contract of value more than sufficient to support the conviction under the statute. (Hart. Dig. Art. 523.) The application for a new trial, resting on the unsupported affidavit of the party, was manifestly insufficient, though its force had not been impaired, by the counter affidavit, or by any thing appearing to the contrary of the matters deposed to by the accused. Nor was there error in receiving the counter affidavit. (Hyde v. The State, 16 Tex. R. 445.) There is no error in the judgment audit is affirmed. Judgment affirmed.