goods, and to say that they were not equal to that which they really were As yet, I find no case in which a mere misrepresentation at the time of sale of the quality of the goods has been held to be an indictable offense." Shirley, Lead. Crim. Cas. 66.

The intent with which the alleged false pretense is perpetrated, is always a question of fact for the jury, and is an essential ingredient of the charge. The evidence must disclose the intent to the satisfaction of the jury. Trogdon v. Com. 31 Gratt. 872; People v. Kendall, 25 Wend. 399, 37 Am. Dec. 240; Brown v. People, 16 Hun, 535; Parmelee v. People, 8 Hun, 623.

In Reg. v. Mills, 1 Dears. & B. C. C. 205, the prisoner was charged with obtaining money by the false pretense that he had cut sixty-three fans of chaff, when in fact he had only cut fortyfive. It appeared by the evidence that the prisoner was employed to cut chaff at twopence per fan, and that on making the false pretense alleged in the indictment, he demanded 10s. 6d. from the prosecutor. The prosecutor had previously seen the prisoner remove eighteen fans from an adjoining place and add them to the heap which he pretended he had cut, but, notwithstanding this knowledge, he paid the prisoner the amount he demanded. It was held that there ought not to be a conviction, because the money had not been obtained by means of the false pretense.

"The test is," says Cockburn, Ch. J., "what is the motive operating on the mind of the prosecutor which induced him to part with his money? Here the prosecutor knew that the pretense was false, he had the same knowledge of its falseness as the prisoner. It was not the false pretense, therefore, which induced the prosecutor to part with his money; and if it is said that it was parted with from a desire to entrap the prisoner, how can it be said to have been obtained by means of the false pretense?"

It must always appear in evidence on an indictment for obtaining goods by false pretenses, that the prosecutor parted with the goods upon the faith of the false pretense alleged.

46

CHAPTER LII.

LARCENY.

§ 445. Larceny Defined.

446. Larceny Includes False Pretenses and Embezzlement.
447. Distinction between Larceny and False Pretenses still
Preserved.

448. Felonious Intent must be Shown.

449. Every Larceny must Include a Trespass.

450. Corpus Delicti must be Shown.

451. What may be Shown when Identity is in Question.

452. Recent Possession of Stolen Property may be Shown.

453. Evidence of other Similar Offenses.

454. Case of Reg. v. Thomas Considered.

455. Evidence of Value.

456. New York Rule as to Name of Party Defrauded.
457. Review of Miscellaneous Authorities.

§ 445. Larceny Defined.-"A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either,

"1. Takes from the possession of the true owner, or of any other person, or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or writing; or secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind; or,

"2. Having in his possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association, or corporation, or as a public officer, or as a person authorized by agreement, or by competent authority, to hold or take such possession, custody, or control, any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof;

"Steals such property, and is guilty of larceny." N. Y. Penal Code, § 528.

Larceny, by the common law, is defined to be "the felonious taking and carrying away of the personal goods or property of another." Johnson v. People, 113 Ill. 99.

§ 446. Larceny Includes False Pretenses and Embezzlement. The definition of the term larceny has now been broadened so as to take within it the offenses formerly known as false pretenses and embezzlement. And as between them and the common law offense of larceny, a distinction remains which must be observed in the presentation by indictment. People v. Dumar, 106 N. Y. 502. And we think the change exists only in the definition, and does not go to the legal effect except so far as it is produced by the terms of the statute. And that as relating to those offenses which have been given the name of larceny by the statute, the consequences in respect to the property taken continue the same as they were before. The principle upon which the distinction in that respect rested, was that larceny at common law was the act of feloniously taking property, which was without the consent of the owner, while obtaining it by false pretenses was produced by the consent and delivery of it by the owner to the fraudulent vendee, and when so delivered with the intent at the time being to part with the title and invest it in the latter, the effect of a common law larceny was not given to it, so as to defeat the title of a bona fide purchaser for value. Zink v. People, 77 N. Y. 114, 33 Am. Rep. 589.

The same reason for this rule exists now as before the application of the extended definition. in Benedict v. Williams, 48 Hun, 123.

The distinction, although fine, is quite clear, between larceny and obtaining money under false pretenses. Thorne v. Turck, 94 N. Y. 95, 46 Am. Rep. 126, citing Loomis v. People, 67 N. Y. 329, 23 Am. Rep. 123.

447. Distinction between Larceny and False Pretenses still Preserved.-The distinction between larceny and false pretenses is a very nice one in many instances. In some of the old English cases the difference is more artificial than real, and rests purely upon technical grounds. Much of this nicety is doubtless owing to the fact that at the time many of the cases were decided larceny was a capital felony in England, and the judges naturally

leaned to a merciful interpretation of the law out of a tender regard for human life. The distinction between larceny and cheating by false pretenses is well stated in Russell, Crimes (5th Am. ed.) 28. After an exhaustive review of the cases the learned author says: "The correct distinction in cases of this kind seems to be that if, by means of any trick or artifice, the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner part with not only the possession of the goods, but the right of property in them also, the offense of the party obtaining them will not be larceny, but the offense of obtaining goods by false pretenses." Com. v. Eichelberger, 119 Pa. 254.

There is still in the state of New York the crime of larceny, and the crime of obtaining property under false pretenses, with different definitions by statute, and subjecting the offender to different punishments; the one a misdemeanor, the other a felony. All distinction between them has been abolished in some of the states of the Union, but until the legislature interferes, the courts of this state have no right or power to disregard that distinction however technical it may seem. This distinction as we understand it is this: In larceny, the owner of the thing stolen has no intention to part with his property therein; in false pretenses, the owner does intend to part with his property in the thing, but this intention is the result of fraudulent contrivances. And one test we conceive to be this: Could the offender confer a good title upon another by the sale and delivery of the thing? I do not mean to apply this test to the case of money, but goods and chattels. If obtained by larceny it is clear he could not. Bassett v. Spofford, 45 N. Y. 388, 6 Am. Rep. 101. If obtained by fraud it is equally clear that he could, for in that case the property passes in the subject-matter. In the former case it does not.

§ 448. Felonious Intent must be Shown.-The felonious intent must exist at the time of taking or obtaining possession of the property, where the possession is obtained by means of false representation or pretense. Where, however, the offense consists in the secreting, withholding or appropriating, or where it consists in the appropriating of property by bailee, servant, attorney, agent, clerk, etc., it is only necessary that the felonious intent exists at the time of such secreting, withholding or appropriating

of the property, for in such cases the property stolen would be property in the possession of the party secreting, withholding or appropriating it. People v. Moore, 37 Hun, 84.

It has been my endeavor in a somewhat extended investigation of the rules of evidence required in crimes of this nature, to reproduce the most recent judicial comment upon the subject. A formidable array of authority has been critically examined; and my conclusion is that Chief Justice Leonard of the Nevada supreme court in the case of State v. Slingerland, 19 Nev. 135, has stated the conclusions of both reason and authority that underlie this entire topic of evidence of intent in cases of larceny. It should be borne in mind, that there is a studious attempt in certain quarters to engraft a refinement upon the law governing larceny, in order that it may appear that an essential ingredient of the offense is wanting where the taking of the property is shown to have been without a view to pecuniary profit, but rather in a spirit of malicious mischief. In reproducing Judge Leonard's opinion, my idea is, to dissipate the errors arising from this view; and show the inadmissibility of evidence tending to establish a mere malicious taking with a view to annoyance and vexation. His honor says, in commenting upon an instruction which was alleged to have been erroneous:

"The court instructed the jury that, if they believed beyond a reasonable doubt that the defendant took the property as alleged in the indictment, with the intent to permanently deprive the owner of the property, and without any intention to return the same, it was a felonious intent, and the defendant was guilty. It is claimed that this instruction is erroneous in stating that the crime of grand larceny may be committed, although the taker of the property alleged to have been stolen derives no benefit, and does not intend or expect to be benefited therefrom. If one of the essential elements of larceny is an intention to profit by the conversion of the property, then the instruction under consideration was incorrect. A court cannot instruct a jury that certain facts constitute a certain offense, unless every essential fact necessary to constitute the offense be included in the statement. Weston v. United States, 5 Cranch, C. C. 494. Although the authorities upon this question are somewhat conflicting, those sustaining the instruction greatly preponderate, and, in our opinion, they are upheld by good sense and sound reason.