The New York herald., 1869-02-28
NEW YORK CITY.
The C0gRTs.
COURT OF appsAls.

Important Opinion In a Criminal Casc-Whn,
Constitutes the Crime of Larceny.
At the January term OF the Court OF Appeals al
its session at Albany, the following important opn.
ion was rendered in the case Of q man VINO tried
some time ago IN the Criminal Court OF this city.
convicted OF the crime OF larceny and sentenced to
the State Prison. ON the trial OF the charge 1t ap-
peared that the Court charged the jury "that, as
matter OF .aw, 1t Is not necessary in order TO
md verdict Of guilty, that felonious intent existed
at the time OF taking the watch and money, out IL
VIII be sufficient u such intent existed at the time
the prisoner actually converted the same 10 MS own
USE" TO which portion OF the charge OF the Court
the prisoner excepted. The case was carried 10 the
Supreme Court, winch Court affirmed the Judgment
Afterwards IL was removed into the Court Of APP
peals for review, where II was argued ut the Sep
Hall for the people and William T. KIntzlng a coun
sci for the prisoner. The decision was announced
at the january term, reversing the judgment and
awarding new trial to prisoner.
Judge Mason, rendering the decision OF the
Court, said:-lhe prisoner, the plaintlH IN error,
was tried IN the Court Of General Sessions OF the
city OF New ork upon an indictment for larceny,
In stealing nom the person Of another, and he was
sentenced 70 Imprisonment IN tae state PRISON ior
to the charge Of the Judge tkecorder 10 the Jury.
In his charge he said:-"As matter OF law charge
you that IL no. necessary, IN order TO IND
verdict OF guilty that the ielonlous intent eX-
listed ut the time OF taxing the watch and money,
but it will he sutiicent II such intent existed
at the time the pIisoner actually converted the
same to his own uss.' Thls charge calnos oe Sus-
tanned. The aw Is Tie very converse OF the pro2o-
sition stated by the Recorder. LORD Coke LAYS down
the rule as drawn from the year books, ''that the
taking must be feionlcus cai1a dJi1no furdno,, aud
the intent 10 steal must be when 1t cometh TO MS
hands possession; Tor IL he hath the possession OF
It lawfully, though he hath dnalu!R Judnit after
ward and cariiesl II away, 1t i no larceny.u l3
Cokes lnst uJeS 1917 such Is the rule established
by an unbroAen current oil dec sl0ns In Englnd and
in this country. | Will content myself by referring
TO few OF tue adjudca ceJ cases III England and IN
this State. Buttons case 2S Ez., ID East Pleas OF
the Crown, p. 553; Leach, ALL Rex w. Leigh, East
The T oI psoY oY KnSns cSs huss son NJ = = H. ma III
People vs.. Can, DEMO- Rep. 10. The rule has be-
come elementary and is supported by Blackstone,
Russell Chitty, Koscoe, hawkns, Hale Lord Coke,
East Leach, otarkie wharton Barbour, and IN short
by all the elementary writer's that have consulted
2 Starke Ev. y. SOD; Black Comm, 232; nos.
Grim. Evd. 80. 54l; wharton's Am. Or. Law 1853;
Hale, 5O4; l HAWKINS, Gu. 35, sec. 2: Archb. Cr Pl
1s6, 1ss. This IS The rule IN regard to larceny
generally and 1t cera My applies with greater force
TO an indctnent under that statute which provides
that whenever any larceny shall be committed by
stealing. taking and carrying away from the persoa
OF another The olender may be punished as Tor
grand larceny, although the value OF the property
taken shall be less taan twenty-five dollars. Qaws
The CHI arge must he construed with reference to
the case before the court which certainty was one
where the jury might have found that the prisoner
did not, when lie took the watch and the
money, intend to steal them from Hafner.
Hainer was drunk and wholly incapable
of taxing any care OF them himself. and
the same were taken In the presence OF tour respect
able persons whose attention he called to IT, and
asked them TO see now mucn money there was that
Hainer might not claim any more or him than ne
took IL belonged 10 the jury. upon the evidence,
to say whether the prisoner intended to steal tnis
property when he TOOK II from The person OF Haner,
aud IL the Judge had simply left that question TO the
Jury no ground OF complaint could exist. But ne
charged the jury that III tue prisoner did not Intend
TO steal the property when he took II from Hainer,
but made up his mind afterwards to steal ittnat IS,
at the time he con erted the same to his own use
they sholld convict hun OF larceny. his VIII not
do in common case of larceny, much less VIII 1t
do under indictment for stealing from the person
under above tiipl statute. llp effect OF this
charge was TO say 10 the Jury that they must
the prisoner ii they founu he took the property
honestly to preserve the same for haner, provided
he afterwards made up his mind TO steal 1t and con-
verted 1t 10 nis owa use. Tie Judgment must peNre
yersed ana new trial ordered.
Woodruff. Grover, dwight and Bacon. Justices.
concurieo with Justice Mason In his opinion.
A. Oakley hail. District Attorney, Tor The people I;
William r. kiptzlng Tor the prisoner.