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and is guilty of larceny." People ex rel. | fraud. People ex rel. Perkins v. Moss, SO
Perkins v. Moss, 100 N. Y. Supp. 427-429, 50 N. E. 383, 387, 187 N. Y. 410, 11 L. R. A,
Misc. Rep. 198 (citing Pen. Code, $ 528). (N. S.) 528, 10 Ann. Cas. 309.
Pen. Code, $ 528, makes it "larceny" for

Under the statutes of Oklahoma a person a servant to appropriate to his own use any who takes personal property unlawfully, felomoney which he has in his possession as such niously, and with intent to deprive another servant, with intent to deprive the true own- thereof, is guilty of larceny; and it is immaer of his property or the use thereof. Sec. terial whether the property is taken from the tion 548 provides that it is a sufficient de owner or another. State v. Clark, 128 Pac. fense that the property was appropriated 161, 163, 8 Okl Cr. 432. openly under a claim of title preferred in "Larceny" is defined by Snyder's St. $ good faith, but that the section shall not ex. 2591, as the taking of personal property accuse the retention of the property of another complished by fraud or stealth and with into pay demands held against him. An em tent to deprive another thereof. Section ployé collected over $900 for his employer, 2606 punishes any person who shall steal and deducted therefrom over $400, which he any stallion, mare, etc., creates a separate claimed was for arrears of salary and ex- and distinct offense, and to support a con. penses and a certain other item, and sent his viction under it the state must prove a felo check to the employer for the balance, with nious intent on the part of accused to deprive a statement showing how it was arrived at the owner thereof, and to convert the same Held, that where the employer owed less than to his own use, which specific proof is not $100, and the claim of the employé was made necessary to support a conviction under the with intent to avoid payment of certain general larceny statute. Crowell v. State, sums due, the employé was guilty of larceny | 117 Pac. 883, 884, 6 Okl. Cr. 148. under the Code, for the appropriation was not under a claim of title, but under a claim

Pen. Code, s 528, defines "larceny" as of indebtedness, and was not made in good follows: “A person who, with the intent to faith. J. W. Matthews & Co. v. Employers' deprive or defraud the true owner of his Liability Assur. Corp., 111 N. Y. Supp. 76, 77, property, or of the use and benefit thereof, or 127 App. Div. 195.

to appropriate the same to the use of the taker, or of any other person,

hayPenal Code, 8 528, declares that a personing in his possession, custody or control, as a who, "with intent to deprive or defraud the bailee, servant, attorney, agent, clerk, trustrue owner of his property,” etc., appropri- tee or officer of any person, association or ates the same to his own use or benefit, or corporation,

any money, property, that of any other person other than the true evidence of debt or contract, article of value owner, is guilty of larceny, and section 548 of any nature or thing in action or possesdeclares that on an indictment for larceny sion, appropriates the same to his own use, it shall be a defense that the property was or that of any other person other than the appropriated openly under a claim of title true owner or person entitled to the benefit made in good faith, even though such claim thereof, steals such property is guilty of is untenable. The president of a life insur- | 'larceny.' People v. Burnham, 104.N. Y. ance company, having promised to contribute Supp. 725, 727, 119 App. Div. 302. up to $50,000 to a political campaign, requested relator, a vice president, to make the pay

Section 880 et seq. of the Penal Code ment personally, as that would make it easier contains the definition of “larceny,” which is, to refuse the other demands, and that the in substance, that every person who, with

the intent to deprive or defraud the true president would see that the matter was taken care of later. Relator made the pay efit thereof, or to appropriate the same to

owner of his property, or of the use and benment, after which the president brought the the use of the taker, or of any other person, matter to the attention of the finance committee of the insurance company, and, it takes property from the possession of anbeing of the opinion that relator should be re

other, or, having in his possession property of imbursed from the company's funds, the another, appropriates the same to his own president, under his authority to pay out the use, or that of any other person other than company's money on executive order, caused the one entitled to it, is guilty of "larceny." such reimbursement to be made without fur: When the property taken is of a value ex

ceeding $50, or when it is taken from the ther action on the part of the finance committee or trustees of the company. In pro- person of another, it is termed grand larceedings for relator's arrest for the larceny section what at common law constituted the

ceny; otherwise, petit larceny. Under this of such fund, the proof showed that relator offenses of larceny and embezzlement are derived no personal advantage from the mon- merged in the one offense of larceny, and ey, and that it was paid by him in the honest thereby the distinction formerly recognized belief that he was benefiting the insurance between cases where the taking was unlawcompany. Held, that the facts did not estab- ful and those where the possession had been lish prima facie the commission of larceny; lawfully obtained is abolished. Property there being no evidence of an attempt to de'must have an owner before it is the subject

of larceny, but this statute does not define that the amendment of the statute excluded the character of that ownership—whether it hogs and sheep from the list of animals, the is general or special, joint or several, abso- stealing of which constituted grand larceny, lute or qualified, arises from title or from per se, did not operate to exclude such anipossession. The particular ownership of the mals under the value of $30 from the operaproperty stolen does not fall within the defi- tion of section 1903. State v. Zehnder, 128 nition, and is not of the essence of the crime. S. W. 960, 962, 228 Mo. 310. Neither the legal nor moral quality of the act

An employé of a railroad company was is affected by the fact that the property stol required to make an independent check of en, instead of being owned by one, or by two the men employed by a construction company, or more jointly, is the several property of which relied on the reports made by the emdifferent owners. The gist of the offense is ployé in paying the men. The employé and the felonious taking or appropriation. The the timekeeper of the construction company grade of the offense is determined by the reported that a third person was entitled to value of the property taken. State v. Mjelde, receive compensation for work done, and they 75 Pac. 87, 29 Mont. 490.

procured the presentation to the construction Where a territorial statute defined lar- company of a check therefor, which it paid. ceny as a taking with a felonious intent to They received the proceeds. The report was deprive the owner of the property taken, and false. Held, that the employé was guilty of with intent to appropriate the same to the larceny under Pen. Code, $ 528, punishing one use and benefit of the taker, an instruction who, with intent to defraud, obtains from authorizing a conviction if the property was another by aid of fraudulent representations taken by defendant with the felonious intent any money, etc. People v. Eaton, 107 N, Y. to deprive the owner thereof was erroneous. Supp. 849, 853, 122 App. Div. 706. Miller v. Territory of Oklahoma, 149 Fed. 330, 339, 79 C. C. A. 268, 9 Ann. Cas. 389.

Animus furandi An indictment alleging that accused, do

Intent is a necessary element of "laring business as the L. Company, misrepre- ceny.". Sutherland v. St. Lawrence County, sented to a certain person the resources of 91 N. Y. Supp. 962, 966, 101 App. Div. 299. such company, and induced such person, re- To constitute “larceny" the taking must lying on the misrepresentations, to subscribe be done with a felonious intent. Bailey v. and pay for stock in an Arkansas corpora- State, 122 S. W. 497, 498, 92 Ark. 216. tion, thereby fraudulently obtaining of such

Criminal intent is the principal element person a certain amount of money, without of “larceny," whether of grand larceny which showing that accused or the L. Company is a felony, or petit larceny which is a miswere in any manner connected with the Ar: demeanor. State v. Claybaugh, 122 S. W. kansas corporation, and without alleging that

319, 321, 138 Mo. App. 360. the L. Company was the Arkansas corporation, nor that accused owned any stock in the It is insufficient to constitute' “larceny" Arkansas corporation, nor was an officer or that the taking was without color of right or agent thereof, or authorized to represent it in authority, but it must have been with a fethe sale of its stock, did not charge an of-lonious intent. State V. Peterson, 92 Pac. fense under Kirby's Dig. $ 1689, making one 302, 303, 36 Mont. 109. guilty of "larceny" who with intent to de

Where one has taken and converted anifraud or cheat another shall designedly, by color of any false token or writing, etc., ob mals to his own use, if at the time of the

taking there was a felonious intent to detain from any person any money. State v. I prive the true owner of the permanent use Lester, 126 S. W. 846, 847, 94 Ark. 242.

and benefit of his property, he is guilty of Rev. St. 1899, $ 1903, enacted in 1835, larceny. Blackshare v. State, 128 S. W. 549, provides that if a person alter the marks of 552, 94 Ark. 548, 140 Am. St. Rep. 144. any animal the subject of larceny, being the

It is essential to a conviction of "larproperty of another, with intent to steal or

ceny" that the property be taken “animo fuconvert it to his own use, he shall be guilty randi," and where it clearly appears that the of larceny, and punished in the same manner taking was perfectly consistent with honest as if he had feloniously stolen such animal. conduct, although the party charged with the Prior to the revision of 1879, grand larceny crime may have been mistaken he cannot be was the felonious stealing, taking, and carry-convicted of "larceny.” Bird v. State, 37 ing away of goods worth $10 or more or any South. 525, 527, 48 Fla. 3. horse, sheep, hog, etc., belonging to another and by the revision the act was amended by "Larceny" is the felonious taking and striking out the words "sheep" and "hog," carrying away of the personal property of and by increasing the value of the stolen another, with intent to convert it to the takproperty to $30. Held, that section 1903 does er's use and deprive the owner of its use not limit the offense to the felonious mark- without his consent. Felonious intent is a ing of any animal the subject of grand lar- material element of the crime of larceny. ceny, but merely the subject of larceny, State v. Dredden (Del.) 73 Atl. 1042, 1043, 6. which includes petit larceny, and the fact Pennewill, 446.

Under Pen. Code, 8 528, making guilty of, and that the crime is not committed where larceny one who takes property with intent the taking is done by a person innocently to deprive the owner of the same, or of the and without any evil intent, and that unless use and benefit thereof, a taking of property the words were intended to charge the plainwithout an intent to so permanently appro- tiff with the crime of larceny, and would priate the same as to deprive the owner of be naturally so understood by the person the property itself, or its use and benefit, is hearing them, they should find for defendnot “larceny." There must be something ant. Beams v. Beams, 129 S. W. 298, 299, more than an intention to retain possession 138 Ky. 818. of property, without an intent to actually ap

Same-At time of taking propriate it. People v. Kenny, 119 N. Y. Supp. 854, 855, 135 App. Div. 380.

"Larceny" at common-law was the fe

lonious taking of the property of another “Larceny" is the wrongful and fraudu- against his will, with the intent to convert lent taking or carrying away of the personal it to the use of the taker, or, as some augoods of another with felonious intent to thorities hold, the use of the taker or a convert them to the taker's own use and third person. In “larceny" the felonious in make them bis property without consent of tent must have existed at the time of the the owner; but the felonious intent is not taking of the property. Williams v. United necessarily an intent to gain an advantage States Fidelity & Guaranty Co., 66 Atl. 495, for the taker, it being sufficient that there 496, 105 Ind. 490. be an intention to deprive the owner of his property; and, even in those jurisdictions

"Larceny" consists of an intent to treswhere a lucri causa is required, it is not nec- pass on the personal property of another, essary that the benefit to the defendant be coupled with an intent wholly to deprive the of a pecuniary nature. Canton Nat. Bank owner thereof, and the crime is not commit1. American Bonding & Trust Co., 73 Atı. ted unless such intents concurrently and 684, 685, 111 Md. 41, 18 Ann. Cas. 820.

contemporaneously exist. State v. Teller, 78

Pac. 980, 45 Or. 571 (citing 1 Bish. Crim. Law “ 'Larceny' is the unlawful taking and [7th Ed.] 88 207, 342; Rapalje, Larceny, $ 20; carrying away the goods or property of an- State v. Hull, 54 Pac. 159, 33 Or. 72 Am. other, secretly or furtively with the feloni St. Rep. 694; State v. Meldrum, 70 Pac. 526, ous intent to appropriate them to the use of 41 Or. 380; Johnson v. People, 113 Ill. 99). the trespasser.

From the foregoing authority we deduce the rule that, under the

A felonious intent at the time of the English common law, and consequently un- taking is essential to “larceny.” To make der our statute, which is merely declaratory the finder of a check guilty of larceny, he thereof, one cannot commit the crime of 'lar- must have had an intent or fraudulent purceny or robbery without a felonious intent, pose to convert it to his own use at the time or, in other words, he cannot commit them he took possession thereof, and that he knew by inadvertence through ignorance.'

or had reasonable means of knowing the Where accused took from the possession of owner is evidence of such intent, if he after

State y. the court's receiver certain cattle belonging wards converts it to his own use. to him and taken from him under process in Hinton, 109 Pac. 24, 27, 56 Or. 428. an action against him, he was not guilty of In every "larceny" there must be a tresrobbery or “larceny," in the absence of evi- pass in the original taking of the property; dence of felonious intent. Triplett v. Com., that is, in larceny the felonious intent must 91 S. W. 281, 282, 283, 122 Ky. 35.

have existed at the time of the taking. State Both at common law and under Pen.

v. Casey, 105 S. W. 645, 647, 207 Mo. 1, 123 Code, § 880, and section 883 as amended by Am. St. Rep. 367, 13 Ann. Cas. 878 (citing Sess. Laws 1897, p. 247, defining larceny as State v. Shermer, 55 Mo. 83; State v. Ware, a taking "with intent to deprive or defraud" 62 Mo. loc. cit. 602). the true owner, an indictment charging that Defendant took a bull from the range, defendant "feloniously and with the intent believing it to be his own, and later, ascerthen and there to steal,” etc., sufficiently taining that it belonged to another, convertcharges a felonious intent, the phrase fol- ed it. There was no willful trespass in the lowing the word "feloniously” taking noth-taking. Held, that it was not "larceny,” as ing from the effect thereof. State v. Allen, the felonious intent at the time of taking was 87 Pac. 177, 178, 34 Mont. 403 (citing Whar- absent, and, there being no trespass, the ton's Precedents, 415; State v. Rechnitz, 52 doctrine that a person, taking property by Pac. 261, 20 Mont. 488).

trespass, who subsequently wrongfully conIn an action for slander by a daughter verts it, is guilty of larceny, had no applicaagainst her father, where it was doubtful tion here. Wilson v. State, 131 S. W. 336, 96 whether the father meant to charge his Ark. 148, 41 L. R. A. (N. S.) 549, Ann. Cas. daughter with the crime of larceny, the court

1912B, 339. should have charged that the crime of lar- The crime of "larceny," under the statceny is committed where one person takes ute defining “larceny" as the taking of perthe property of another with intent to con- sonal property accomplished by fraud or Tert it to his own use or that of another, stealth, with intent to deprive another there

3 WDS.& P.20 SER.–2

or

of, may be shown by proof that at the time, who shall steal or obtain by robbery the of the taking of the property it was taken property of another in any other state, terriwith the felonious intent to convert it to tory, or country, and shall bring the same the taker's own use, and to deprive the own- | into this state, may be convicted and puner thereof, regardless of the fact as to wheth ished for larceny in the same manner as if er the taking was accomplished by fraud or such property had been feloniously stolen or stealth. To constitute larceny the criminal taken within this state, and section 83, intent must exist at the time of the taking, Crimes Act (Gen. St. 1901, § 2076), making and the taking may be by stealth with such the alteration of brands with intent to steal criminal intent, or the taking may be with or convert the branded animal "larceny," one the owner's knowledge through fraudulent who in another state marks or brands, or alpractice. Flohr v. Territory, 78 Pac. 565, ters the mark or brand of, any animal, the 570, 14 Okl. 477.

subject of larceny and the property of an

other, with intent to steal it or convert it to Asportation

his own use, so that if the marking, brandAny felonious taking or asportation of ing, or alteration were done in this state he personal property may be “larceny"; there would be guilty of the larceny as defined by fore the omission of the word "away" from section 83, may be convicted and punished a charge as to “the felonious taking and car- for larceny under section 285, whether or rying of the personal property of another" is not the original taking may have been a not per se error. Presley v. State, 57 South. crime against the laws of the state or coun605, 607, 63 Fla. 37.

try where it was committed. State v. White, In a trial under an indictment charging 92 Pac. 829, 831, 76 Kan. 654, 14 L. R. A. (N. defendant with larceny of a suit case and its S.) 556. contents from a railroad depot the court, aft

Confidence game distinguished er defining larceny as the felonious stealing,

See Confidence Game. taking and carrying away of the personal property of another, charged that if defend- Consent of owner ant actually took into his hands the prop- As used in Cr. Code, g 114, making it erty named in the indictment and lifted it criminal to steal money or other property, from the place where the owner had put it, the word "steal” includes all the elements of so as to entirely remove it from the place larceny at common law. If the original takwhere it was put defendant was guilty of lar- ing of the property is with the consent of ceny, and that if the jury did not find that the owner, the crime of "larceny" is not com. defendant took the property from the depot, mitted. Cohoe v. State, 113 N. W. 532, 533, but did find that he took and carried it away 79 Neb. 811. from a place outside of any building, the ver

Where the owner of personalty volundict should be guilty of larceny, fixing there

tarily parts with its possession for a particuin the value of the property stolen. Held that, in the absence of a request by defend. sion for that purpose has at the time a fraud

lar purpose, and the person receiving possesant for instructions, the instructions were as ulent intent to make use of such possession specific as the case demanded. State v. MC

as a means of converting the property to his Dermet, 115 N. W. 884, 885, 138 Iowa, 86.

own use, the crime is larceny. Bivens v. Asportation to new jurisdiction as new State, 120 Pac. 1033, 1036, 6 Okl. Cr. 521. offense

Where one by fraud, trick, or false preWhere defendant induced R., who had tense induced the owner to part merely with previously been employed by a dray company the possession of his property, there being authorized to receive goods for a consignee no intent to pass title, and the party receivof certain shoes, and who was known to the ing takes it with intent fraudulent to conservants of the carrier holding such goods vert it to his own use, the crime is "larceny." for delivery, to go to the freight depot of State v. Loser, 104 N. W. 337, 340, 132 Iowa, the carrier in Illinois after his employment 419 .(citing State v. Edwards, 41 S. E. 429, by the dray company had terminated, and 51 W. Va. 220, 59 L. R. A. 465; State v. Hall, procure a load of shoes from the carrier, and 40 N. W. 107, 76 Iowa, 85, 14 Am. St. Rep. R. obtained such shoes, and delivered them 204; People v. Morse, 2 N. E. 45, 99 N. Y. to a person other than the consignee in Mis- 662; State v. Anderson, 47 Iowa, 142; Peosouri, such act constituted "larceny," and ple v. Rae, 6 Pac. 1, 66 Cal. 423, 56 Am. not "false pretenses," and was therefore pun- Rep. 102; Loomis v. People, 67 N. Y. 329, 23 ishable under Rev. St. 1899, $ 2362, providing Am. Rep. 123; 1 Whart. Cr. Law, § 1179). that every person who shall steal the prop

Where it appeared that the whole erty of another in any other state and shall scheme by which a person obtained money bring the same into Missouri may be convict- was a fraud from the beginning and that posed and punished for larceny as though the session obtained by mere trickery with a property was stolen in Missouri. State v. present intent to convert it to his own use Mintz, 88 S. W. 12, 16, 189 Mo. 268.

that he had no rightful possession, and that Under section 285, Crimes Act (Gen. St. delivery was made to him without any in1901, $ 2286), providing that every person tent to pass the title, but merely to enable

urer.

him to make a specific use of the money, his lorigs. Woodring v. Territory, 78 Pac. 85, 86, appropriation of it constituted "larceny" at 14 Okl. 250, 2 Ann. Cas. 855. common law. Commonwealth V. King, 88

Under Rev. Pen. Code, &$ 605, 607, 608, N. E. 454, 460, 202 Mass. 379 (citing Common

as amended by Laws 1903, p. 175, C. 151, wealth v. Flynn, 45 N. E. 924, 167 Mass. “larceny" is the taking of personal property 460, 57 Am. St. Rep. 472; Commonwealth accomplished by fraud or stealth and with v. Rubin, 43 N. E. 200, 165 Mass. 453; Com- intent to deprive another thereof. Larceny monwealth v. Lannan, 26 N. E. 858, 153 Mass. is divided into two degrees, the first of which 287, 289, 11 L. R. A. 450, 25 Am. St. Rep. is termed “grand larceny"; the second, “petit 629; Commonwealth v. Barry, 124 Mass. 325).

larceny." Grand larceny is larceny comConversion

mitted in either of the following cases: (1) There was a "conversion,” within B. & When the property taken is of value exceedC. Comp. & 1807, declaring guilty of larceny ing $20. (2) When such property, although one who receives money of the state and con- not of value exceeding $20, is taken from verts it, where money being deposited in a the person of another. (3) When such propbank by the State Treasurer for safe-keep- erty, although not of value exceeding $20, is ing was paid out to others than such Treas- a bull, steer, cow, heifer, or calf, or is a

State v. Ross, 104 Pac. 596, 599, 55 stallion, mare, gelding, horse, or colt. LarOr. 450, 42 L. R. A. (N. S.) 601.

ceny in other cases is petit larceny. Under

Rev. Pen. Code, 88 605, 607, 608, as amended Converting or claiming property found by Laws 1903, p. 175, c. 151, making it grand

Where accused, as agent of prosecutor, larceny to take property exceeding $20 in had an interest in certain rent collected by value, or when the property, though not of him, he could not be convicted of larceny value exceeding $20, is a stallion, mare, geldby embezzlement of such rent, under Hurd's ing, horse, or colt, there is no variance beRev. St. 1909, c. 38, $ 75, providing that, if tween an information alleging larceny of a an agent fraudulently embezzles or converts horse and proof of the larceny of a gelding, property in his hands belonging to his em especially in view of Rev. Code Cr. Proc. $ ployer, he shall be guilty of larceny. People | 569, providing that neither a departure from v. O'Farrell, 93 N. E. 136, 139, 247 Ill. 44.

the form or mode prescribed as to any On an information drawn under Comp. pleading nor error therein renders it invalid, Laws 1909, $ 2591, defining larceny generally, unless it has prejudiced defendant, and seca conviction may be had under section 2592 tion 229, providing that an indictment is on proof that accused found lost property sufficient if the act charged is clearly set with means of inquiry as to the owner, and out in ordinary and concise language, so as appropriated the same to his own use with to enable a person of common understanding out a reasonable effort to discover the own- to know what is intended. State v. Matejouser; the latter section only prescribing a rule ky, 115 N. W. 96, 98, 22 S. D. 30. of evidence. Berry v. State, 111 Pac. 676, 677, To feloniously take from the person of 4 Okl. Cr. 202, 31 L. R. A. (N. S.) 819.

another the goods of that other and carry When a delivery of goods is made for the same away has always been a crime, a specific purpose, the possession is still sup- punishable as either grand or petit “larceny," posed to reside in the first proprietor, and, so that the Legislature in defining and makwhere any person has the bare charge of ing punishable the specific act of feloniousanother's effects, legal possession remains in ly taking property from the person of anthe owner, and therefore, where the finder other did not create a new offense, but recof the purse told defendant's wife thereof, ognized such act as a degree of larceny in and she stated that the purse looked like her which the grades of grand and petit larceny husband's and took the same telling the find- are included, so that a defendant charged er that, if it did not belong to her husband, with larceny from the person may properly she would return it, and afterwards posses- be convicted of any of the lesser offenses sion was given to him on his claim of owner-proved. State v. Clem, 94 Pac. 1079, 1080, ship, when in fact it belonged to another, 49 Wash. 273. the legal possession remained in the finder, and defendant's claim thereto constituted lar

Element of burglary ceny. Williams v. State, 75 N. E. 875, 877, See Burglary. 165 Ind. 472, 2 L. R. A. (N. S.) 248 (citing Smith v. People, 53 N. Y. 111, 13 Am. Rep it burglary to break and enter any building,

Under Comp. Laws 1909, $ 2554, making 474; Bish. New Cr. Law, 8 824).

etc., with intent to steal therein, the word Different grades

"steal" involves a felonious intent on the "Larceny" is divided into two degrees, part of the taker to deprive the owner of or otherwise varied in punishment, by the property and to convert it to the taker's use; value of the thing stolen; and an indictment while any trespass involving the taking of must allege the value of the article stolen, personal property with intent to deprive anand the proof of value will be adequate if other thereof is "larceny," within section it simply shows to which of the classes merit- 2557, making it burglary to enter any building corresponding punishment the offense be- Jing, etc., with intent to commit any felony,

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