of larceny because the prosecutor had voluntarily divested himself without the least expectation of its return.

It is idle to speculate upon the reasoning which inspired this decision. Suffice it to say that it has been unqualifiedly condemned by a court of very high repute in this country.

It is an error to suppose that the doctrine of the case of Reg. v. Thomas had been adopted by the New York court of appeals. In the case of Hilderbrand v. People, 56 N. Y. 394, 15 Am. Rep. 435, where this court is supposed to have adopted that rule, the plaintiff in error had been convicted of stealing a $50 bill handed him to take out ten cents in payment for a glass of soda. The prisoner put down a few coppers upon the counter, and, when asked for the change, took the prosecutor by the neck and shoved him out of doors and kept the money. The prisoner was convicted, and the conviction was affirmed by this court. The case of Reg. v. Thomas was cited and relied upon by the prisoner. The facts of the two cases differed, and, after criticising the case of Reg. v. Thomas as a nisi prius case and not authoritative for that reason, the court pointed out the difference between the facts of the case then being considered, without overruling or affirming the doctrine of Reg. v. Thomas.

In Loomis v. People, 67 N. Y. 329, 23 Am. Rep. 123, the case of Reg. v. Thomas, was again referred to, and this court there declared that the weight of authority was decidedly opposed to the doctrine of that case, and again affirmed a conviction in which that case was relied upon as an authority for reversal. The decisions of this court have been uniformly against the doctrine of Reg. v. Thomas. In People v. McDonald, 43 N. Y. 61, this court held that: "If money or property is delivered by the owner to a person for mere custody or for some specific purpose, the legal possession remains in the owner, and the criminal conversion of it by the custodian is larceny." Again in Smith v. People, 53 N. Y. 111, 13 Am. Rep. 474, it was said by Allen, J., that "when the delivery of goods is made for a single and specific purpose the possession is still supposed to reside, not parted with, in the first proprietor." The rule of Reg. v. Thomas was never adopted by this court, is not good law, and should be disregarded.

455. Evidence of Value.-Without proof of the value of stolen property, there can be no conviction of larceny; and unless the record shows that there was such proof, the court will set

aside a conviction, although the error was not pointed out by the counsel; and this, notwithstanding the property stolen was currency as the United States silver certificates. It is always necessary to prove the value of the property alleged to have been stolen, in order to determine the grade of the offense and the penalty to be imposed; and in the absence of any evidence upon the subject of such value, the court must presume it to be nominal merely. But where the punishment of the offense charged does not depend on the value of the articles taken, proof of value is unnecessary, and the jury may ascertain whether or not the articles are of any value by inspecting them. Rapalje, Larceny & Kindred Offenses, § 140, citing Ware v. State, 33 Ark. 567; Whitehead v. State, 20 Fla. 841; Radford v. State, 35 Tex. 15; Hall v. State, 15 Tex. App. 40; Moore v. State, 17 Tex. App. 176; State v. Krieger, 68 Mo. 98; Simpson v. State, 10 Tex. App. 681; Powell v. State, 88 Ga. 32; Stokes v. State, 58 Miss. 677; People v. Griffin, 38 How. Pr. 475; Com. v. Burke, 12 Allen, 182.

The value of an article stolen is its market value; and evidence that it is worth $20 to its owner, and worth nothing to anybody else, does not show its market value to be $20. To be of the market value of $20 it must be capable of being sold for that sum at a fairly conducted sale,—at a sale conducted with reasonable care and diligence in respect to time, place and circumstances, for the purpose of obtaining the highest price. Locke v. State, 32 N. H. 106; State v. Ladd, 32 N. H. 110; State v. Goodrich, 46 N. H. 186; Cocheco Mfg. Co. v. Strafford, 51 N. H. 481; State v. James, 58 N. H. 67.

If the value, as alleged in the indictment, be the same as proved upon the trial, the verdict of guilty, as alleged in the indictment, is proper. If the value alleged in the indictment should be different from that established from the evidence, the jury, in rendering a verdict of guilty, may find and state with their verdict the amount of loss resulting from the offense, etc. This view, as to the effect of a general verdict, appears to me to be sustained by the reasoning in the case of Williams v. People, 24 N. Y. 405. It is true that the question was not raised in that case, but it would appear to follow from the argument employed. In Wisconsin, however, the question appears to have been settled in the case of State v. White, 25 Wis. 359, in which it was held that a general verdict of guilty is a finding of the truth of all the ma

terial averments in the indictment, including the averment of value when value is material. To the same effect also is the case of Schoonover v. State, 17 Ohio St. 294.

In charging a larceny of several articles of the same kind, it is not necessary to state the number nor to allege the value of each article. It is sufficient to allege a larceny of divers of the articles of an aggregate value. This is a common mode of charging larceny of bank-notes and of coin. Com. v. Hussey, 111 Mass. 432; Com. v. Stebbins, 8 Gray, 492; Com. v. Grimes, 10 Gray, 470, 71 Am. Dec. 666; Com. v. Gallagher, 16 Gray, 240; Com. v. Butts, 124 Mass. 449; Com. v. Collins, 138 Mass. 483.

§ 456. New York Rule as to Name of Party Defrauded.— Formerly, before the adoption of the code of criminal procedure, it was the inflexible rule that the name of the person in whom property was laid, although matter of description, must be proved according to the indictment. But the rule is now changed by the code of criminal procedure. N. Y. Code Crim. Proc. § 293.

The constitutionality of this provision was recognized without question in People v. Poucher, 1 N. Y. Crim. Rep. 544; and was upheld by a divided court in People v. Johnson, 4 N. Y. Crim. Rep. 591.

The constitutionality of similar statutory provisions has been recognized without question by the highest courts of several of the states. Mulrooney v. State, 26 Ohio St. 326; Com. v. O'Brien, 2 Brewst. 566; Haywood v. State, 47 Miss. 1.

§ 457. Review of Miscellaneous Authorities.-If property is parted with voluntarily upon contract, the offense is not larceny. Penal Code, § 528; People v. Morse, 3 N. Y. Crim. Rep. 104; Zink v. People, 77 N. Y. 114, 33 Am. Rep. 589; People v. Cruger, 102 N. Y. 510, 55 Am. Rep. 830; Mowrey v. Walsh, 8 Cow. 238; Andrews v. Dieterich, 14 Wend. 31; Ross v. People, 5 Hill, 294; Smith v. People, 53 N. Y. 111, 13 Am. Rep. 474; Thorne v. Turck, 94 N. Y. 90, 46 Am. Rep. 126; People v. Baker, 96 N. Y. 340; Kelly v. People, 6 Hun, 509; Cowen, Crim. Dig. 320.

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 the right of property also, the offense of the party obtaining them will not be larceny, but that of obtaining goods by false pretenses. Ross v. People, 5 Hill, 394; Lewer v. Com. 15 Serg. & R. 93; 2 Russell, Crimes, 28.

In prosecutions for larceny and receiving, several articles may be joined in a count, and the proof of one of them will sustain the indictment. A nolle prosequi may be entered on a portion of a divisible count, even after verdict. If several articles are embraced in a count for larceny, and one of them is sufficiently described and the others are not, it is not necessary to quash the indictment. In such case, it is proper to amend by striking out the articles defectively specified, or to enter a nolle prosequi as to them. Indeed, to quash an indictment on such ground might effectually defeat justice, as where the statute of limitations would be an answer to a new bill for the larceny of the article which was adequately described in the quashed indictment. A defective description of an article in a divisible count for larceny is analogous to a bad count in an indictment. In the latter case a general verdict will be supported, and referred to the good counts unless it appear that evidence was received which was admissible only under the bad counts. Com. v. Johnson, 133 Pa. 293.

Where an indictment for grand larceny charged the act constituting the crime thus, that defendant "unlawfully and feloniously did steal, take and carry away" the property described. Held, that the indictment could not be sustained by proof that the defendant obtained possession of the property from the owner upon a sale on credit induced by false and fraudulent representations. People v. Dumar, 106 N. Y. 502.

The statute defining larceny is not a rule of pleading, but a guide to the conduct of the trial, prescribing the proofs requisite to a conviction; and an indictment charging larceny in the common law form, if sustained by evidence, justifies a conviction for larceny committed in any of the ways now known to the law. People v. Enoch, 13 Wend. 176, 27 Am. Dec. 197; People v. White, 22 Wend. 176; Fitzgerrold v. People, 37 N. Y. 413; Kennedy v. People, 39 N. Y. 245; Cox v. People, 80 N. Y. 500; People v. Conroy, 97 N. Y. 62.

Where the owner of personal property entrusts it to another,

to procure a loan thereon, and the latter procures the loan as authorized, his omission to account for, or appropriation of the proceeds of the loan will not sustain an indictment against him for larceny of the property. People v. Cruger, 102 N. Y. 510,

55 Am. Rep. 830.

Evidence of embezzlement will not support a conviction of larceny. Com. v. Simpson, 9 Met. 138; Com. v. King, 9 Cush. 284.

In People v. McDonald, 43 N. Y. 61, it is said: "If money or property is delivered by the owner to a person for mere custody, or for some specified purpose, the legal possession remains in the owner, and the criminal conversion of by the custodian is larceny. A familiar illustration of this rule is the case of servants entrusted with the care of property belonging to their masters." In Smith v. People, 53 N. Y. 111, 13 Am. Rep. 474, it was said by Allen, J.: "The rule is, that when the delivery of goods is made for a single and specific purpose, the possession is still sup posed to reside, not parted with, in the first proprietor."

In theft, general or from the person, the taking must be without the consent of the owner, or, though lawful (with consent) the possession of the property must be obtained by some false pretext, or with intent to deprive the owner of the value of the property and appropriate it to the use of the taker, with an actual appropriation. If there be consent to the taking, and this con sent is not obtained by false pretext, or there is no intent to deprive the owner of the value, accompanying the taking, there can be no theft. Graves v. State, 25 Tex. App. 333.

"If a man find goods that have actually been lost, or are reasonably supposed by him to have been lost, and appropriates them, with intent to take the entire dominion over them, really believing, when he takes them, that the owner cannot be found, it is not larceny. But if he takes, with like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny." Baker v. State, 29 Ohio

St. 184.

In Com. v. Uprichard, 3 Gray, 434, 63 Am. Dec. 762, the property had been stolen in the province of Nova Scotia, and thence carried by the thief into Massachusetts. The defendant was convicted of larceny, charged to have been committed in the latter state. This conviction was set aside by a unanimous court,