Opinion
September Term, 1868
W.F. Kintzing, for the plaintiff in error.
A. Oakey Hall, for the defendants in error.
The prisoner, the plaintiff in error, was tried in the Court of General Sessions of the city of New York, upon an indictment for larceny, in stealing from the person of another, and sentenced to imprisonment in the State's prison for the term of five years.
The error complained of is to the charge of the recorder to the jury. In his charge, he said, "as matter of law, I charge you, it is not necessary, in order to find a verdict of guilty, that the felonious intent existed at the time of taking the watch and money, but it will be sufficient if such intent existed at the time the prisoner actually converted the same to his own use."
This charge cannot be sustained. The law is the very converse of the proposition stated by the recorder. Lord COKE lays down the rule as drawn from the year books, that the taking must be felonious, " cum animo furandi," and "the intent to steal must be when it cometh to his hands or possession; for, if he hath the possession of it unlawfully, though he hath ' animum furandi' afterward, and carrieth it away, it is no larceny." (3 Coke's Inst. 107.) Such is the rule established by an unbroken current of decisions in England and this country. I will content myself by referring to a few of the adjudged cases in England and in this State. ( Button's case, 28 Eliz.; 2 East's Pleas of the Crown, p. 553; 1 Leach, 411; Rex v. Leigh, 2 East P.C. 694; Rankin's case, Russ Ryce, 44; The People v. Anderson, 14 Johns. 294; The People v. Call, 1 Denio, 120.) The rule has become elementary, and is supported by Blackstone, Chitty, Russell, Roscoe, Hawkins, Hale, Lord Coke, East, Leach, Starkie, Wharton, Barbour, and, in short, by all of the elementary writers that I have consulted. (2 Stark. Ev. p. 606; 4 Black. Com. 232; Ros. Cr. Ev. 533, 541; Whart. Am. Cr. Law, 1752, 5th ed.; Barb. Cr. Law, 153; 1 Hale, 504; 1 Hawkins, chap. 33, § 2; Arch. Cr. Pl. 186, 189.) This is the rule in regard to larceny generally, and it certainly applies with greater force to an indictment under this statute, which provides, that, "whenever any larceny shall be committed by stealing, taking and carrying away from the person of another, the offender may be punished as for grand larceny, although the value of the property taken shall be less than twenty-five dollars." (Laws 1862, chap. 374, § 2.)
The charge must be construed with reference to the case before the court, which certainly was one where the jury might have found, that the prisoner did not, when he took the watch and money from Hafner, intend to steal it. Hafner was drunk, and wholly incapable of taking any care of them himself, and the same was taken in the presence of four respectable persons, whose attention he called to it, and wished them to see how much money there was, that Hafner might not claim any more of him than he took. It belonged to the jury, upon the evidence, to say, whether the prisoner intended to steal this property when he took it from the person of Hafner, and if the judge had left simply that question to the jury, no ground of complaint would exist; but he told the jury, that, if he did not intend to steal the property when he took it from Hafner, but made up his mind to steal it afterward, at the time he converted it, they should still convict him.
This will not do in a common case of larceny, much less under an indictment for stealing from the person.
The effect of this charge was to say to the jury they might convict the prisoner if they found he took the property honestly from him to preserve it for him, only so that he afterward made up his mind he would steal it.
The judgment must be reversed, and a new trial granted.
Judgment reversed, and new trial ordered.