Year: 1876

A KNOTTY QUESTION OF LAW.


James Kelly alleged confidence man, made ap-
plication yesterday through Mr. william f. Knitting
his counsel TO the General Term the Supreme Court
before Judges Davis, Brady and Daniels for his dis
charge from the State Prison at Sing Sing in which he
is now confined, serving out sentence OF FIVE years
on conviction for larceny. The prisoner was tried
peore Recorder Hackett at the November Term OF the
Court OF General Sessions for the crime OF larceny by
trick and device. Upon his trial it appeared that
William Ross, the complainant being employed upon
steamer running to Florida, met Kelly The day the
steamer started that Kelly proessed 10 be passenger
upon the steamer and asked Ross TO assist him TO bring
some articles aboard the steamer; that Ross kindly
consented 10 assist, and accompanied him of the
steamers that Kelly then showed Ross some pieces Of
what appeared 70 be gold coin and asked him 20 lend
him $50 saying he would give him security the
coin that Kelly said be wanted TO purchase bottle Of
liquor In saloon in front Of which they then stood,
and that after obtaining the money he requested Ross


to wait for him while he went in to make the purchase
promising 10 return in FIVE minutes Kelly entered the
saloon and slipped out through the back door making
good his escape, leaving Ross TO wait for him. holding
as security Tor his money what subsequently turned
out to be worthless and spurious COIN Upon the trial
counsel conended the facts would not Justify
ton Of the crime Of larceny but the Court thought
otherwise Upon the argument yesterday MI. Kint-
zng urged that larceny could not be predicated upon


the facts because the complainant parted not only with
possession OF the money voluntarily but also with his
property In III that he parted with his money in order
that Ross might make purchase OF liquor that
in so dong he lost all control power and possession
and that the prisoner ntrusted with the possession
OF the money, and not expected to the iden
tical bills. He further argued and cited numerous
authorities in support OF the that II is not larceny
II the owner OF personal property intends TO part with
his property and delivers possession absolutely, al
though he has been induced to part with by raudu
lent means, and that the property not taken
against his viii or Without his consent, there was no
trespass, and consequently no larceny


District Attorney Phelps contended, In opposition,
that the evidence abundantly showed that the
prisoner intended at the time he procured
The money from Ross TO convert ii to his
use; that he procured it by fraud and trick that
Ross was induced TO part with his money only upon
the belief that he then and there received abundant
equivalent for the same in the shape OF gold coin that
the pieces were, in fact worthless; that the mind OF
the parties met in any contract in pursuance of
which Ross Intentionally parted with his property in
the money, and that the taking of the money under
the circumstances by the prisoner amino furandi was
constructvey trespass, and the offence therefore,
larceny.


Mr.. Knitting, in replying to the District Attorney,
contcnded that If the accused guilty Of any offence
II was that OF false pretcnces and that he parted with
his property upon the strength OF certain coin which
al the time he believed to be genuine but which sub
sequenty turned out to be spurious.


The Court, after hearing the argument of counsel,
took the papers and reserved its decision.