The New York herald., 1877-10-21
Important judicial Warning to
Professional Gamblers.
THORNY PATHS TO DIVORCE.
Suits for Damages Growing Out Of the
Late Railroad Riots.
BROAD FIELD OF LITIGATION.

gamblers, who invoiged stranger into gambling
don ana aceced him out OF his money. Following
their District Attorney Phelps having found II
almost impossible TO convict gamblers upon tho
specific charge OF swindling In the pursuit OF their
nearous profession tried the experiment OF indcting
the prisoners for larceny. Upon their trial before
Judge sutherland In the OF General Sessions,
Mr.. William Y. KNITTING. their counsel, con-
tsnded that tho offence not larceny,
money having been voluntarily surrendered, and
that it mattered not how fraudulent may have been
the intent long there was no trcspass The DIS
trict Attorney took a contrary ground Inc Judge
charged Tor conviction which followed. The case
was then taken tho Court oil Appeals, which tribu-
nal has affirmed the judgment in the General Sessions,
Judge Miller writing tho opinion and all the Judges
concurring A decision of moro vital mportanceto
the gambling fraternity, rs indicating the course likely
TO bo pursued in complaints against them hereafter
and moro encouraging to thcr oegulcd victims, has
mover been given in tho courts. The opinion is Tor
this given below in FULL
The prosecutor induced to place his money upon
OF hazard upon The assurance OF Lewis one of
the prisoners, that he was To win and he would have
his money back, that IN oi loss other money
would bc procured upon check which he claimed 10
have in his possession aud paid IN place ct that lost.
II evident that tho prisoner Lewis, aud hts coneder
ate Looms, conspircd irauduently and oioniousy to
procure the money OF tho prosecutor and by means OF
trick and device succeeded III converting II 10 their
own use. Upon tho facts proven the question 10 DO
The jury found that 1t was the intention OF tho
prisoners convert the money, without the
not intend 10 part with hs property think that tho
conclusion At which they arrived was abundanty
by tho evidence and tho conviction OF tho pris-
be upheld upon well legal grounds.
IL commended that the conviction erroneous be-
the voluntarily parted with his money,
expecting receive bills others
In their place, and hence the crime was not made
IL must 10 conceded that IN order to establish
offence OF larceny there must bo trcspass, and with
out this element the offence IL not complete Il Hawk
PL Cr., l, p. lOs; Russ. Crimes, 5h Am Ed,
95; Mcdonald vs.. The People, 43 N Y, Gl HlIdebrand
va The People, 56 n. Y, 396). Even although
the owner is induced TO part with ms property Dy
fraudulent means, yet II he actually intends part
with and delivers up possession absolutely
larceny (Pcople smith, 53 N. Y, ILL., In this case
considering the circumstances, ii cannot be doemed
think, that the prosecutor intended to part
with tho POSSESSION or tho ownership OF tho
money. money n was handed , over for particular
absolutely surrender the title, 1t only In
OF It's loss tnut other money be procured
upon the check which The prisoner Lewis claimed
have In his possession. The prosecutor then had
parted absolute right to the same, trapsterred
occurred, and tho use oil the moncyws but temporary
md Tor specified object. Certainly, when 1t ap-
peared that loss had happened tho Temporary
session at emu and all inents and purposes
the money reverted TO the prosecutor. The alleged
loss, brought about by the criminal and fraudulent
conduct Of the prsoners, could not change the
In any way transfer the ownership TO them They did
not thereby acquire any right aud IL seriously
be questioned that ut This time, II before tho
prosecutor would have been justified in taking the
money forcibly, or could have maintained
for the recovery oil the samo identical bills. IL was
his money ana the CONVERSION of 1t by the prisoners
before II was won WAS without a semblanco Of lawful
authority, and, as The jury have lound with fcon-
Gus intent. 1t was OF larceny us marked
and significant IN It's general features II the prs
oners had wrongiully seized and appropriated when
first produced. The form OF throwing tho dice was
only cover, device and contrivance conceal tho
original design, and long no consent to
part with the money does not change tho cnarac-
Ter OF The while the element of trespass IL
wanting and the offence Is not larceny where consent
ts la mart viii n ms
erty absolutely, and not mercy with temporary pos
session OF the same. oven although such consent
was procured by frnud anu Tie person OBJ
tanning 1t bad al animus furandi; yet, us
Is well said by writer on criminal law,
"u Is different whore with the animus iurandi, u
person obtains consent TO his temporary possession
oi property and then converts 1t 10 his Tho
act goes farther tnan the coLsen and may be fairly
SAID 10 be- against IL Consent TO deliver the tempo
rary possession not to deliver the prop,rly
IN thing, and II person. aniTnus iurandi avas hm-
Sell OF temporary possession for specific purpose,
obtained by CONSENT 10 convert the property In tho
thing TO himself ANA deraud the owner lnereoL he
certainly has not the consent OF the owner. He Is,
therefore, acting against the VIII OF the and
Tespas'er, because ucspasscr upon tho property
o another Is only dong some act upon that property
against the Will OF tho owner" la the case ut bar
there was valid agreement 10 part with money
absolutely and no consent 20 dvest the owner OF
little. Ii was passed over for mere Temporary
most, and the legal title remaining IN tne owner tho
OF 1T by the prisoners within the rule cited
larceny. The reports iull OF amilIar iustra-
lions OF this rule reference leading cases
will show. In HiGebrand We. People supra. a flty-
dollar bill delivered 10 the prsouer pay ton cents
md return tho change was kept by him, ana
held 10 DO larceny Ii was ndcd tna aIler taking
the cents other money should DO exchanged
10 this extent aud Tor this purpose tho PRISONER
ful possession OF the money IN that case, here,
the money was not absolutely parted with, but sur
rendered Tor specific purpose aud tho custody
porarly transferred IL Is true that in the
cited The delivery was held not TO be complete
until tho change returned, but that does
not alter the prncipo when there but temporary
posscsson thcro was no transfer o the ownership
lsee also Mcdonald vs.. People, supra) Nor does u
cnange tho aspect OF the by trick device,
possession OF property for special purpose
VINO receives II, annius iurandi and still means TO
retain right OF property. tsinth vs.. People,. 53
NJ L., lll.) Ia Rex Vs. Homer, Leach, 3Oo where
The prosecutor was decoyed INTO a public house and
money obtained IRON min Tor tho purpose OF playing
Ut cards ana appropriated by the PRISONER was ned
that II there was preconccrted plan 10 obtain The
money aud al anirnus iurandi, IL iolonous THIS
ease Is analogous and directly point and It Is di-
cult to draw any distinction between the cited and
The case al BAR thcro quite srong ground for
huding the elonous m the latter case as IN that
cited In Rex VS.. Robson Russ. a Ry., q. e., 4l3,
where there was plan cheat the prosecutor OF
hls property under color OF bct ana he parted with
the possession only 10 deposit IL stake with OF
the confcderates the taking held 10 be ieoniUus
ihis case Is directly point, and, decision by
twcve judges Is entitled 70 great weight The
referred TO- without citing others wuich bear tho
same direction, sufficient convection,
and the Gases which have pecn cited uphoiding the
principle that there no such parting prop
erty 10 constitute larceny, do not think, 10 10
tho extent which claimed. Alter careful cxamina-
ton. without considering thcm IN detail, sunico TO
say that, perhaps, with single exception tlscg.
Ihoinas, Carr and fayne 'll) winch Was a nsi
prIus cccis!on aud is criticised IN the opinion IN
Hildebfand VI, Tho People, they are all clearly dis
tDgulsbaDle from the considered. and tho
weight Of authority Is decidedly in opposite drcc-
ton. There Is, TO be sure, narrow margin between
case OF larceny and ono where the property has been
obtained by false prclcnces. The distinction very
nice one, but stil very important The Character OF
The crime depends upon tho Intention OF inc parcs,
aud that intention determines the nature OF the OF
fcbcc Ia the iorner CASE where by fraud, conspiracy
or artihce the possession vbaInod with iclonious
design and the title SUI remains In the owner larceny
"a sal "a IN lhss Inf ln Agll
as possession Is absolutely parted, the crmo IS false
pretencss IL viii Dc observed that the intention ot
the owner TO part WITH his property Is the
gust aud essence Of tho offence oil larceny and the vital
point upon which the crime hinges and Is 10 DO deter
mined. Although the present is ON the border
line, yet II Is quito coar that II was the
stVod, fair question Tor tho jury decide tue
intent oil the prisoners ioonously the money
anu TO the ncutloD oil the prosecutor to part with
tho ownership OF the same These questions wcro
fairly submitted by tho Judge to their
and, ms thorc was no error Ia the charge or IN any