§ 528. 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, articles 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. (a) Intent.-To constitute the crime of larceny there must not only be a wrongful taking, but also a felonious intent. (McCourt v. People, 64 N. Y., 583.) The felonious intent is to be deducted from all the circumstances of the taking. (1 Wh. Cr. Cas., 397.) The question of felonious intent is for the jury. (Ellis v. People, 21 How. Pr., 356.) There must be a criminal or felonious intent to bring the defendant within this section. (People v. Grimm, 3 N. Y. Cr. R., 317.) Proof of larceny by the defendant of smaller amounts, is allowed to show intent. (People v. Reory, 4 N. Y. Cr. R. 1; Shipley v. People, 86 N. Y., 375.) Complainant sold temperance drinks in bottles, to which he retained title, and which, when emptied, were to be returned to him. Defendant was in the habit of obtaining such bottles and returning them to complainant when the latter called for them, on payment of two or three cents apiece. After being notified by complainant to cease such traffic, defendant obtained more bottles, and refused to deliver them to complainant unless paid as before. Defendant openly admitted his possession of the property, and asserted his right to hold it. Held, that there was not sufficient criminal intent to constitute larceny. (People v. Grimm, 3 N. Y. Crim. R., 317.) Defendant sought to show that he had obtained the bottles, charged to have been stolen, from customers to whom claimant had disposed of them. Held, that the exclusion of such evidence was error. (Id.) The intention of section 528 of the Penal Code was not to make every trespass de bonis or trover, larceny. The intent mentioned in that section means a criminal or felonious intent. (Id.) To constitute the crime of larceny there must be both a trespass and a felonious intent. (Thorne v. Turck, 94, N. Y., 90.) Intent must exist, to deprive true owner of his property. (People v. Church, 3 N. Y. Cr. R. 57.) A dog may be subject of larceny. Mullaly v. People, 86 N. Y. 365. Larceny. the want of consent to the taking may be proved by circumstances of the case. People v. Wiggins, 16 Week. Dig. 141. The removal of property under advice and without "animo furandi" does not constitute larceny; where the value is less than $25 it is at most a misdemeanor and no indictment will lie. People v. Burton, 16 Week. Dig. 195. Larceny.-Obtaining money through confederates and trickery constitutes the crime of larceny. People v. Tweed, 14 Week. Dig. 492; 1 N. Y. Crim. R. 97. Property claimed and taken under color of title not petit larceny. People v. Burton, 16 Week. Dig. 195. Defendant agreed with M. to buy for him one hundred shares of stock, M. to pay twenty per cent. down, defendant to hold the stock until full payment, and credit M. with dividends earned in the meantime. The purchase was made by defendant in April, 1873, and M. continued to pay till April, 1877, when defendant acknowledged full payment. In fact, defendant sold the stock in March, 1874. Defendant was indicted for false pretenses, based on payment made by M. to him in March, 1876. Held, that the statements rendered M. by defendant of dividends earned after the sale, and before March, 1876, were properly admitted, and were representations by defendant that he still held the stock; that the question of the effect of the lapse of time (two months) between the last dividend statement and the payment of the money laid in the indictment was for the jury; also that conversations relative to the purchase had in March, 1873, between M. and defendants were properly admitted. People v. Baker, 18 Week. Dig. 112. Where cotton brokers obtain possession of cotton through false representations and fraud, and afterward obtained advances on the warehouse receipts, and sell it, not having ever obtained a legal title to it, it is larceny. Hentz v. Miller, 94 N. Y. 65. Defendant, a clerk, having made at different times collections for his employers amounting to $677.13, but of which no one sum collected exceeded $25, came within the county of Erie, and with an amount of said moneys exceeding $25 in his possession, and absconded therewith from Erie county. Held, that the defendant committed the offense of grand larceny in the second degree in the county of Erie. People v. Carr, 3 N. Y. Crim. R. 578. The obtaining by an attorney of money or property by false or fraudulent representations is not governed by section 148 of the Penal Code, but is larceny under section 528 of that Code. People v. Reavey, 4 N. Y. Crim. R. 1; 38 Hun, 478; 39 id. 364. An undelivered satisfaction-piece of a mortgage is not the subject of. People ▼. Sterens, 38 Hun, 62; 3 N. Y. Crim. R. 583. One W. deposited with defendant $600 as security for the faithful performance of the duties of one H., whom defendant had agreed to employ, defendant agreeing to return said money on a termination of the contract of hiring and to pay interest. Defendant failed to employ H. and did not return the money. Held, that she was properly convicted of grand larceny. People v. Morse, 99 N. Y. 662; S. C., 3 N. Y. Crim. R. 104, 321. Section 528 of the Penal Code covers a case of an appropriation by the chamberlain of a city, to his own use, of public moneys in his hands, and the indictment therefor need not be found under section 470, or the provisions of a city charter. People v. Church, 3 N. Y. Crim. R. 57. Under section 528 of the Penal Code, an intent to deprive or defraud the true owner of his property is necessary, but section 470 does not require any such intent when the officer appropriates public moneys. Id. Larceny by de facto officers. -To convict of a crime for violation of official duty, it is not necessary to prove that the accused is a de jure officer if he holds the office de facto it is enough. People v. Church, 3 N. Y. Cr. R. 57. The certification of a check is a thing in action, within the meaning of section 528, Penal Code, defining larceny. It acknowledges that the money is there, and is an agreement on the part of the bank to pay the check. If the obligation assumed by such certification be obtained from the bank under circumstances amounting to false pretense, the crime of larceny is committed under said section. People v. Ward, 3 N. Y. Crim. R. 483. Though the check in question has been passed by the defendant, the drawer, in the course of business, to a third party, by whom it is presented at the bank for certification, if the defendant, on being notified thereof, make, the false representations by which the certification is obtained he is guilty of said crime, Id. Assignment by a minor. The assignment for value by a minor, can be disaffirmed, and the disaffirmance is not larceny. People v. Kelly, 3 N. Y. Cr. R. 417. Failure to disclose insolvency. -The failure of the defendant to disclose the fact that he was insolvent, when he purchased goods on credit, does not constitute larceny. People v. More, 3 N. Y. Cr. R. 467. Pretenses after sale. -No false pretenses made after the sale, are larceny. (Ib.) It is not sufficient that the pretenses were false, and that property was obtained thereby, but it must be shown that they were made with intent to cheat and defraud. People v. Baker, 96 N. Y. 340. Insursnce by insurance agent after knowledge of loss of property.No agency, however general its terms, even though it be with power to insure vessels "lost or not lost," would be deemed to embrace the power to insure property after and with knowledge of its loss. Peopte v. Dimock, 5 N. Y. Cr. R, 185. Not error to refuse to charge, that defendant was not guilty of larceny, if he insured the vessel after its loss, if he believed he had power so to do, as he might have had such belief and yet intended to defraud the company. (Id.) The pretense must be of fact, not of intention. (People v. Blanchard, 90 Ν. Υ., 314.) Must be by words, not by false show or appearance. (People v. Conger, 1 Wheel cases, 448.) Mere suppression of truth or silence, does not constitute false pretenses. (People v. Baker, 96 N. Y., 34.) The word steals, covers all the prescribed details. (People v. Willett, 4 N. Y. Cr. R., 204.) Value. Where money has been taken, the value of the money must be alleged in the indictment. (People v. Bark, 16 Hun, 476, 83 N. Y., 609.) Presence of person losing property.- Upon the trial of an indictment for larceny, it is not necessary that the person whose property was stolen should be produced and sworn for the purpose of showing the intent of the accused, or that it was taken without the owner's consent. Each of these facts may be established by the circumstances attendant upon the commission of the act. (People v. Higgins, 1 N. Y. Cr. R. 290, 92 N. Y., 657.) Indictment.---The averment of the sum and value of the money taken, is sufficient. (People v. Reovy, 4 N. Y. Cr. R., 1.) An averment that the pretenses were false, and were known at the time they were made to be false is sufficient. (Ib.) Pretended lottery. - Where a person is induced by the accused and his confederates, in pursuance of a conspiracy, and with intent thereby to deprive him of his money to deposit it, upon the drawing of pretended art lottery, by means of which trick and device, he is deprived of his money, and the same converted to their own use, the transaction constitutes larceny. (People v. Tweed, 1N.Y. Cr. R., 97, 89 Ν. Υ., 638.) Where in such a case the first deposit is less than $25, and is left on the table, being only removed to another part, and the complainant is induced to make another deposit-both amounts together being over $25, the conversion of the two sums constitutes grand larceny. (16.) Obtaining a false claim against a municipality is larceny. (Phelps v. Oyer & Terminer, 83 N. Y., 436.) Constructive presence of the accused in regard to the commission of the crime of larceny. (McCarney v. State, 83 N. Y., 408.) Misreading a deed. -When misreading a deed brings the accused under this section, as coming under false pretenses. (Webster v. People, 92 N. Y., 422.) Evidence. Upon trial, the defendant may be asked his intent, and it is error to exclude the question. (People v. Moore, 3 N. Y. Cr. R., 470.) Upon a trial for larceny where there is evidence tending to connect the defendant with the offense, it is not necessary to show exclusive possession of the stolen property to authorize the conviction of the defendant. (People v. McCallum, 5 N. Y. Cr. R. 743.) Such rule only applics when the evidence of guilt is the possession of the property stolen and it is to be presumed from that fact. (Id.) Taking away a horse from the owner's possession, for the purpose of killing or maiming it, is not larceny. (People v. Woodward, 2 N. Y. Cr. R., 32.) It is not larceny, for a person with whom an article is left to obtain a loan on, to convert the loan to his own use. (People v. Cruger, 102 N. Y., 510.) Larceny of city bonds. --Proof of the statutes and resolutions under which city bonds were issued is allowable with a view of establishing their validity and value in a trial for their conversion. (Pork v. People, 31 Hun, 360; 1 N. Y. Crım. R. 368; 91 N. Y. 5; 1 N. Y. Crim. R., 379.) What constitutes larceny. It is larceny for a wife's paramour to carry off the husband's goods through the solicitation of the wife. (People v. Schuyler, 6 Cow., 572; People v. Cole, 43 N. Y., 508; Reg v. Flatman, 21 Alb. L. J., 404, 418.) To counsel an apprentice to steal his master's goods, renders both liable as principals if the theft be accomplished. (People v. Sheahan, 1 Wh. Crim. C., 226.) No defense to larceny that the crime was committed in the commission of a burglary. (People v. Smith, 57 Barb., 46.) Stealing one's own property. -A man may be convicted of stealing his own property from a constable who had levied upon it under an execution. (Palmer v. People, 10 Wend., 165), or of stealing from one who himself had acquired the goods feloniously. (Ward v. People, 3 Hill, 395; 6 id., 144.) Grand larceny. - There can be no conviction for grand larceny unless the prisoner stole more than twenty-five dollars laid in one count. (Hughes' case, 4 C. H. Rec, 132; McKenna's case, 5 id., 174.) The prisoner is entitled to have the jury instructed whether or not the offense proved amount to grand larceny. (Williams v. People, 24 N. Y., 405; Rhodihan v. People, 5 Park., 395.) Subjects of larceny.-Ice stored for domestic use. (Ward v. People, 3 Hill, 395.) Bank bills, though not yet issued. (People v. Wiley, 3 Hill, 194.) An indictment will lie for the larceny of a note payable in specific articles. (People v. Bradley, 4 Park., 245.) And for the certificates of the stock of an incorporated company; but their value must be proved. (People v. Griffin, 38 How., 475.) A letter of no intrinsic value is not the subject of larceny. (Payne v. People, 6 Johns., 103. Neither is a receipt for money. (People v. Bradley, 4 Park., 245; People v. Griffin, 38 How., 475; People v. Loomis, 4 Denio, 380.) A draft sent to the state comptroller, though not indorsed by the latter, is the subject of larceny. (49 How., 437; 6 Hun, 401; 72 N. Y., 334.) The property in the goods must be laid in the one who holds the legal interest. (People v. Romaine, 1 Wh. Cr. C., 369.) It is sufficient to lay the goods as the property of a bailee. (People v. Smith, 1 Park., 329.) Where goods assigned for the benefit of creditors are stolen the property must be laid in the assignee. (Veitch's case, 5 C. H. Rec., 4.) An indictment for stealing a promissory note must conform strictly to the requirements of the statute. (People v. Cook, 2 Park., 12.) But a bona fide finder of a lost article is not guilty of larceny. (People v. Anderson, 14 Johns., 294.) Not so, however, if the finder knows the owner. (People v. Swan, 1 Park., 9.) Or have the means of identifying him instanter at the time of the finding. (People v. Cogdell, 1 Hill, 94; People v. Kaatz,, 3 Park., 129; Nichols v. People, 17 Ν. Υ., 114.) If a servant interested with the care of his master's horse, take it from the stable with the intent to run away with it, he is guilty of larceny. (People v. Wood, 2 Park., 22.) Owner's permission, when no defense. (Sanders' case, 21 Alb. L. J., 196.) False pretenses, two things must concur; false statement and reliance therein. (People v. Tompkins, 1 Park., 224; People v. Miller, 2 id., 197; Kelly v. People, 6 Hun, 509.) Post dated check. (Lesser v. People, 12 Hun, 668.) If the clerk of the state treasurer receive a draft transmitted to the comptroller in payment of taxes, appropriate it to his own use, he is guilty of larceny. (People v. Phelps, 49 How. Pr., 437; 6 Hun, 401; 72 N. Y., 334.) Assignment by a minor. The assignment for value by a minor, can be disaffirmed, and the disaffirmance is not larceny. People v. Kelly, 3 N. Y. Cr. R. 417. Failure to disclose insolvency. -The failure of the defendant to disclose the fact that he was insolvent, when he purchased goods on credit, does not constitute larceny. People v. More, 3 N. Y. Cr. R. 467. Pretenses after sale. -No false pretenses made after the sale, are larceny. (Ib.) It is not sufficient that the pretenses were false, and that property was obtained thereby, but it must be shown that they were made with intent to cheat and defraud. People v. Baker, 96 N. Y. 340. Insursnce by insurance agent after knowledge of loss of property.No agency, however general its terms, even though it be with power to insure vessels "lost or not lost," would be deemed to embrace the power to insure property after and with knowledge of its loss. Peopte v. Dimock, 5 N. Y. Cr. R., 185. Not error to refuse to charge, that defendant was not guilty of larceny, if he insured the vessel after its loss, if he believed he had power so to do, as he might have had such belief and yet intended to defraud the company. (Id.) The pretense must be of fact, not of intention. (People v. Blanchard, 90 Ν. Υ., 314.) Must be by words, not by false show or appearance. (People v. Conger, 1 Wheel cases, 448.) Mere suppression of truth or silence, does not constitute false pretenses. (People v. Baker, 96 N. Y., 34.) The word steals, covers all the prescribed details. (People v. Willett, 4 N. Y. Cr. R., 204.) Value. Where money has been taken, the value of the money must be alleged in the indictment. (People v. Bark, 16 Hun, 476, 83 N. Y., 609.) Presence of person losing property.- Upon the trial of an indictment for larceny, it is not necessary that the person whose property was stolen should be produced and sworn for the purpose of showing the intent of the accused, or that it was taken without the owner's consent. Each of these facts may be established by the circumstances attendant upon the commission of the act. (People v. Higgins, 1 N. Y. Cr. R. 290, 92 N. Y., 657.) Indictment. -The averment of the sum and value of the money taken, is sufficient. (People v. Reovy, 4 N. Y. Cr. R., 1.) An averment that the pretenses were false, and were known at the time they were made to be false is sufficient. (Ib.) Pretended lottery. - Where a person is induced by the accused and his confederates, in pursuance of a conspiracy, and with intent thereby to deprive him of his money to deposit it, upon the drawing of pretended art lottery, by means of which trick and device, he is deprived of his money, and the same converted to their own use, the transaction constitutes larceny. (People v. Tweed, 1 N.Y. Cr. R., 97, 89 N. Y., 638.) Where in such a case the first deposit is less than $25, and is left on the table, being only removed to another part, and the complainant is induced to make another deposit-both amounts together being over $25, the conversion of the two sums constitutes grand larceny. (Ib.) Obtaining a false claim against a municipality is larceny. (Phelps v. Oyer & Terminer, 83 N. Y., 436.) Constructive presence of the accused in regard to the commission of the crime of larceny. (McCarney v. State, 83 N. Y., 408.) Misreading a deed. -When misreading a deed brings the accused under this section, as coming under false pretenses. (Webster v. People, 92 N. Y., 422.) Evidence. Upon trial, the defendant may be asked his intent, and it is error to exclude the question. (People v. Moore, 3 N. Y. Cr. R., 470.) Upon a trial for larceny where there is evidence tending to connect the defendant with the offense, it is not necessary to show exclusive possession of the stolen property to authorize the conviction of the defendant. (People v. McCallum, 5 N. Y. Cr. R. 743.) Such rule only applics when the evidence of guilt is the possession of the property stolen and it is to be presumed from that fact. (Id.) Taking away a horse from the owner's possession, for the purpose of killing or maiming it, is not larceny. (People v. Woodward, 2 N. Y. Cr. R., 32.) |