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la rceny, or malicious mischief. Sullivan v. and the manner of obtaining it, and it would State, 123 Pac. 569, 570, 7 Okl. Cr. 307. seem that a mere credit is not the subject
Under Rev. St. 1898, 8 4334, as amended of “larceny" at common law. Higbee y. by Sess. Laws 1905, p. 16, c. 19, making it State, 104 N. W. 748, 749, 74 Neb. 331. burglary for any person to break and enter "Embezzlement" is defined as the frauda building with intent to commit a "larceny" ulent appropriation of property by a persoa or any other felony, an information, charg- to whom such property has been intrusted ing the breaking and entering a building at or into whose hands it has lawfully come. night with intent to steal goods, without It differs from “larceny” in the fact that the stating their value, sufficiently charges a original taking of the property was lawful burglary in the first degree, as “larceny" or with the consent of the owner, while in within such section includes both a mis- "larceny" the felonious intent must have exdemeanor and a felony, and the words "or isted at the time of the taking. United any other felony" are equivalent to “or any States v. Allen, 150 Fed. 152, 153 (citing felony other than that embraced within the Moore v. linited Staies, 16 Sup. Ct. 294, 295, larceny." State v. Hows, 87 Pac. 163, 31 160 U. S. 268, 269, 40 L. Ed. 422). Utah, 168.
"One who obtains money or goods by Embezzlement distinguished
some fraudulent trick or artifice, and car“Larceny" and "embezzlement” are dis- ries them away, is guilty of 'larceny.'” Thus tinguishable, in that in larceny possession of where one marries a woman in pursuance of the property may be obtained by fraud, while a scheme to procure money which she has it cannot be so obtained in embezzlement. on deposit in bank, and later procures a People v. Grider, 110 Pac. 586, 588, 13 Cal. check for the money on representations that App. 703.
he will use the money in making an investThe distinction between “larceny" and ment for her, he is guilty of “larceny" and "embezzlement" is one fully recognized in not "embezzlement." Hunt v. State, 79 S. W. the criminal law. While the two offenses 769, 771, 72 Ark. 241, 65 L. R. A. 71, 105 Am. have much in common, for the purpose of St. Rep. 34, 2 Ann. Cas. 33 (citing Beasley prosecution they have uniformly been regard- v. State, 38 N. E. 35, 138 Ind. 552, 46 Am. St. ed as distinct. In every “larceny" there Rep. 418). must be a trespass in the original taking of
The crime of "embezzlement" differs in the property; that is, in larceny the felo-its essential ingredients from the crime of nious intent must have existed at the time of
"larceny" in this: That in "larceny" the grataking. Whereas "embezzlement" is the
vamen of the offense is the unlawful and fefraudulent and felonious appropriation of another's property by a person to whom it intent to convert and steal the same, while
lonious taking of personal property with the has been intrusted, or into whose hands it in "embezzlement” the taking is lawful, behas lawfully come. State v. Casey, 105 S. W. 645, 647, 207 Mo. 1, 123 Am. St. Rep. cause of the trust reposed in the agent, serv
ant, or trustee receiving it, and the gist of 367, 13 Ann, Cas. 878.
the offense consists of the conversion of the The crimes of “embezzlement” and “lar- property so received with a felonious and ceny" are so different in their character that fraudulent intent of converting the same to they should be treated in an indictment as the use of the agent, servant, or trustee. distinct and separate offenses. State v. Fin- State v. Culver, 97 N. W. 1015, 1016, 5 Neb. negean, 103 N. W. 155, 157, 127 Iowa, 286, (Unof.) 238. 4 Ann. Cas. 628.
According to Pen. Code, $ 528, "larceny" The term "embezzle," as used in the includes every act which was larceny at comstatute, is a broader term than "larceny,” mon law, and in addition such acts as formbut not exclusive of it. State v. Sullivan, erly constituted “false pretenses” and “em. 21 South, 688, 689, 49 La. Ann. 200, 62 Am. bezzlement.” At common law, if a person St. Rep. 641; State v. Pellerin, 43 South. honestly and in good faith received posses159, 161, 118 La. 547.
sion of personal property in trust, and thereTo constitute "larceny" as distinguish- after converted the same to his own use, he ed from "embezzlement," there must be a tres- was guilty of "embezzlement.” If he obpass to the possession, but it is larceny where tained possession of the property by fraud, one gains possession of another's personal the owner intending nevertheless to part property so as to constitute only a bare cus- with the title as well as the possession, the tody, or procures it by subterfuge; the offense was obtaining property under "false owner's property. not being divested in such pretenses.” If the possession was wrongcase; he still having constructive possession. fully or fraudulently obtained, without the Boswell v. State, 56 South. 21, 22, 1 Ala. App. owner's consent, and without color of title, 178.
and with a felonious intent of converting At common law, possession wås a neces- the property to the use of the taker or ansary element of "larceny," and the distinc. other, the offense was "larceny." People ex tion between “larceny" and "embezzlement" rel. Perkins v. Moss, 99 N. Y. Supp. 138, 144, depends on the nature of the possession | 145, 113 App. Div. 329 (citing People v. Mill. er, 62 N. E. 418, 169 N. Y. 350, 88 Am. St. (ceiving them fraudulently converts them to Rep. 546).
his own use, it is a case of 'embezzlement.' "Larceny" was a crime at common law But where the possession has been obtained and consisted of a trespass, committed in the through a trick or device, with the intent, taking of the personal goods and chattels of at the time the party receives it, to convert another with intent to convert them to the the same to his own use, and the owner of taker's use, without the consent of the own. the property parts with the possession and er. "Embezzlement" cannot be committed not with the title, the offense is 'larceny.'” unless the defendant is in the lawful posses- Where a person gave money to another as a sion of the property at the time of the con- stakeholder on a bet, such delivery having version. As trespass is an injury to the been brought about by fraud and artifice of possession only, it logically and legally fol- the stakeholder, who intended to appropriate lows that one in the lawful possession of the money in any event, and who did so, goods cannot commit larceny of them, for it the offense was "larceny.” State v. Ryan, were idle and absurd to talk of one commit- 82 Pac. 703, 706, 47 Or. 338, 1 L. R. A. (N. ting an injury to his own possession. “Em- S.) 862 (quoting and adopting the statement bezzlement" consists in the breach of some in People v. Tomlinson, 36 Pac. 506, 507, 102 trust relation by one in the lawful posses. Cal. 19, 23). sion of the personal property of another who Where a person honestly receives the fraudulently converts it to his own use. In possession of goods, chattels, or the money of "larceny" there is no breach of any confi- another on any trust, express or implied, dential relation as in embezzlement, while and after receiving them fraudulently conin the latter crime there is no trespass as in verts them to his own use, he may be guilty larceny. State v. Browning, 82 Pac. 955, 956, of "embezzlement" but not of "larceny," ex47 Or. 470.
cept as "embezzlement" is by statute made “Larceny" at common law was the fe- "larceny." State v. Buck, 84 S. W. 951, 952, lonious taking of the property of another 186 Mo. 15, 2 Ann. Cas. 1007 (citing Commonagainst his will with intent to convert it to wealth v. Barry, 124 Mass. 325). the use of the taker, or, as some authorities
False pretenses distinguished hold, the use of the taker or third person. The distinction between the crime of "Embezzlement" consists in the fraudulent larceny and that of cheating by "false preappropriation to one's own use of money or tenses" is this: "If the false pretenses induce goods intrusted to him by another. In lar- the owner to part with his property intendceny the felonious intent must have existed ing to transfer both title and possession, at the time of taking, whereas in embezzle- the crime is cheating by 'false pretenses.' If, ment the fraudulent act consists in the ap on the other hand, one by fraud, trick, or propriation of the property to the use of the false pretense induces the owner to part taker or third party, but the felonious or merely with the possession of his property, fraudulent intent is of the essence of the there being no intent to pass the title, and offense in each case. Where an insurance the party who receives it took it with intent agent was entitled under his contract with fraudulently to convert it to his own use, the company to a credit of three months on the crime is 'larceny.' State v. Loser, 104 his monthly balances due the company, the N. W. 337, 339, 340, 132 Iowa, 419. fact that at the end of the three months he
Prosecutor met defendant through. a was unable to pay, or simply failed to pay, newspaper advertisement, and defendant ofwith no proof of a fraudulent disposition of fered to sell him a half interest in the roomthe money, would not have established em. ing house department of a brokerage combezzlement. The mere failure to pay a debt without compulsion even by one having the pany for $200, and represented that he (definancial ability is neither larceny nor em- business netted profits of between $200 and
fendant) needed an assistant, and that the bezzlement. Williams v. United States F1 $300 a month. Prosecutor desired a salary, delity & Guaranty Co., 66 Atl. 495, 196, 105 but thereafter paid defendant $50 to be kept Md. 490.
by him for 30 days; defendant agreeing The distinction between larceny by fraud to return the same to prosecutor at the exand embezzlement is determined as to the piration of such time if he was dissatisfied, time when a fraudulent intent to convert which defendant failed to do. Held that arose, and in larceny the criminal intent since the ownership of the money so depos. must exist at the time of the taking, and if ited remained in prosecutor, and there was the taker received the property as a bailment no intent on his part to deliver possession with intent to conform to the owner's wishes thereof to defendant, except temporarily, the and thereafter fraudulently appropriates the latter's offense, if any committed, was “larproperty, the crime is embezzlement under ceny," and not obtaining money by "false Snyder's Comp. Laws 1909, $8 2591 and 2609. pretenses.” State v. Anderson, 84 S. W. 946, Bivens v. State, 120 Pac. 1033, 1036, 6 Okl. 949, 186 Mo. 25 (citing State v. Vickery, 19 Cr. 521.
Tex. 326; 2 Arch. Cr. Pl. 372; Loomis v. "Where one honestly receives the pos- People, 67 N. Y. 322, 23 Am. Rep. 123; Peosession of goods upon trust, and after re-ple v. Morse, 2 N. E. 45, 99 N. Y. 662).
“Larceny" and "false pretenses" are dis- Smith v. People, 53 N. Y. 111, 13 Am. Rep. tinguishable, in that in larceny the owner 474). does not intend to part with his property
One who went to a wholesale cigar store, to accused, though he may intend to part and, giving an assumed name, falsely reprewith possession; while in false pretenses he sented that he had come to get cigars for a does intend to part with his title. People v. retail dealer, and thereby procured the cigars Grider, 110 Pac. 586, 588, 13 Cal. App. 703.
and converted them to his own use, was The distinction between “false pretenses" guilty of "larceny,” since the wholesaler inand “larceny" is that in the former the own- tended to deliver him merely the possession er parts with the possession and title of of the goods for the retailer, and not to sell property by reason of false and fraudulent them to him personally, and was not guilty representations knowingly and designedly of "obtaining property by impersonating anmade, while in the latter the owner of the other," within the meaning of Rev. St. 1899, property stolen must not have intended to 8 1900. State v. Kosky, 90 S. W. 454, 457, part with the title to it. People v. Proctor, 191 Mo. 1. 82 Pac. 551, 552, 1 Cal. App. 521.
Where defendant induced R., who had "Where, by means of fraud, conspiracy, previously been employed by a dray company or artifice, possession of the property is ob- authorized to receive goods for a consignee tained with felonious intent, and the title of certain shoes, and who was known to the still remains in the owner, 'larceny' is es- servants of the carrier holding such goods tablished, while the crime is 'false pretenses' for delivery, to go to the freight depot of if the title, as well as possession, is absolute the carrier in Illinois after his employment ly parted with.” People v. Delbos, 81 Pac. by the dray company had terminated, and 131, 132, 146 Cal. 734 (quoting and adopting procure a load of shoes from the carrier, and definition in People v. Rae, 6 Pac. 1, 66 Cal. R. obtained such shoes, and delivered them 425, 56 Am. Rep. 102).
to a person other than the consignee in Mis
souri, such act constituted "larceny," and Where possession of personal property not “false pretenses,” and was therefore punis obtained from the owner by fraud, trick, ishable under Rev. St. 1899, $ 2362, providor device, and the owner intends to part with ing that every person who shall steal the both possession and the title when he sur property of another in any other state and renders control of the property, the offense shall bring the same into Missouri may be is obtaining property by "false pretenses”; convicted and punished for larceny as though but if the possession is fraudulently secured, the property was stolen in Missouri. State and the owner does not intend to part with v. Mintz, 88 S. W. 12, 16, 189 Mo. 268. the title, the offense is "larceny.” Beckwith v. Galice Mines Co., 93 Pac. 453, 455, 50 Or,
According to Pen. Code, 8 528, "larceny" 542, 16 L. R. A. (N. S.) 723.
includes every act which was larceny at com
mon law, and in addition such acts as “If the possession has been obtained by formerly constituted "false pretenses" and fraud, trick, or device, and the owner of "embezzlement.” At common law, if a perit intends to part with his title when he son honestly and in good faith received posgives up possession, the offense, if any, is session of personal property in trust, and obtaining money by 'false pretenses. But thereafter converted the same to his own where the possession has been obtained use, he was guilty of "embezzlement.” If through a trick or device, with the intent, he obtained possession of the property by at the time the party receives it, to convert fraud, the owner intending nevertheless to the same to his own use, and the owner of part with the title as well as the possession, the property parts with the possession and the offense was obtaining property under not with the title, the offense is 'larceny.'” “false pretenses.” If the possession was Where a person gave money to another as wrongfully or fraudulently obtained, without a stakeholder on a bet, such delivery having the owner's consent, and without color of been brought about by fraud and artifice of title, and with a felonious intent of convertthe stakeholder, who intended to appropriate ing the property to the use of the taker or the money in any event, and who did so, another, the offense was “larceny." People the offense was "larceny." State v. Ryan, ex rel. Perkins v. Moss, 99 N. Y. Supp. 138, 82 Pac. 703, 706, 47 Or. 338, 1 L. R. A. (N. 144, 145, 113 App. Div. 329 (citing People v. S.) 862 (quoting and adopting the statement Miller, 62 N. E. 418, 169 N. Y. 350, 88 Am. in People v. Tomlinson, 36 Pac. 506, 507, 102 St. Rep. 546). Cal. 19, 23).
Prosecutor applied to defendant for a If the owner of property part with not position, who introduced him to A. to aronly the possession but with the right of prop-range the terms of his employment. A. reerty also, the offense of the party obtaining quired prosecutor to deposit $50 as a guarthe property will not be larceny, but will anty of his honesty, to be returned on terbe that of obtaining goods by "false pre mination of his employment; but defendant tenses." Zink v. People, 77 N. Y. 114, 128, on the next day told prosecutor that, as $400 33 Am. Rep. 589 (adopting definition in or $500 would pass through prosecutor's
hands every day, he must deposit $150 more, much a crime to steal one person's property which he did. Defendant pretended to give as another's. The ownership of the property him a receipt for this money, which, instead, is not an essential ingredient of the crime, was a bill of sale for a one-half interest in so long as it appears that the title to the the rooming house business conducted by the same is not in the accused. The crime is concern. Prosecutor worked for $15 per complete when it appears that the property week for three or four weeks, during which feloniously taken or appropriated was not time he drew $15.75, and, becoming dissatis- the property of the accused. People v. Mead, fied, demanded the return of his money, 109 N. Y. Supp. 163, 164, 125 App. Div. 7. which defendant refused to pay him, and
“ 'Larceny' is the felonious stealing, takthen prosecutor discovered that his receipt ing, carrying, leading, or driving away the therefor was a bill of sale. Held that, prose personal property of another,” and an indictcutor never having intended to part with the ment charging defendant with willfully, etc., title to the money so deposited, defendant, taking from the person and possession of having acquired the same by fraud, with the felonious intent to convert it to his own not charging that the property was not that
prosecutors said money, was insufficient in use, was guilty of "larceny," and not “false of defendant. People v. Cleary, 81 Pac. 753, pretenses." State v. Buck, 84 S. W. 951, i Cal. App. 50. 952, 186 Mo. 15, 2 Ann. Cas. 1007 (citing Commonwealth v. Barry, 124 Mass. 325; People
One who has taken an estray and is in v. Morse, 2 N. E. 45, 99 N. Y. 662; People possession thereof has such property interest v. Dunmar, 13 N. E. 325, 106 N. Y. 502; Peo- therein that the taking of it from him may ple v. Miller, 62 N. E. 418, 169 N. Y. 339, be "larceny"; so, also, one in possession of 88 Am. St. Rep. 546; People v. Gottschalk, stolen property purchased from the thief; 20 N. Y. Supp. 777, 66 Hun, 64).
so, also, a thief, in possession of property
he has stolen, as against another than the As felony
Maxwell v. Territory, 85 Pac. 116, See Felony.
10 Ariz. 1. Force and arms
Pen. Code. § 484, defines “larceny" as Though an indictment charged that ac- the felonious stealing, etc., of personal propcused "with force and arms” stole a horse, erty of another. Held, that the phrase those words should have been omitted from “personal property of another," so the instructions, for, neither force nor arms used, means property in the possession of being an element of the offense, their use in another who is entitled, as baflee or otherthe indictment was unnecessary. Walklate wise to retain possession for some benefit v. Commonwealth (Ky.) 118 S. W. 314, 315. or profit to himself to the exclusion of all Gambling distinguished
others, and not absolute ownership as deThe obtaining of money under pretextfined by Civ. Code, $ 679, so that a taking of of betting at cards and the best hand win- a heifer by the general owner thereof from ning, but where in fact prosecuting witness the possession of an agister entitled to hold had no chance to win, and was the only the same under a lien for pasturage, with player who actually risked anything, is with the intent to deprive the latter thereof, conin Comp. Laws 1907, § 4355, defining “ar- stituted "larceny." People v. Cain, 93 Pac. ceny" as the felonious taking -of the prop
1037, 1039, 7 Cal. App. 163. erty of another, and such a game cannot be Robbery as including held to constitute gambling merely. State v. See Robbery. Donaldson, 99 Pac. 447, 449, 35 Utah, 96, 20 L. R. A. (N. S.) 1164, 136 Am. St. Rep. 1041.
See Steal. Property of another
Theft synonymous To constitute “larceny," the thing stolen must be the property of another; but either
See Theft. general or special ownership may be suffi- Trespass cient. State v. Roswell, 133 S. W. 99, 100,
“Larceny" is the felonious stealing and 153 Mo. App. 338.
carrying away, etc., of the personal property "Larceny" consists in two essential ele of another, every larceny including a tresments: First, the misappropriation; and, pass to the possession, which cannot exist second, the accompanying intent. Evidence unless the property was in the possession of of ownership is therefore admissible, even the person from whom it is charged to have necessary, in proving the misappropriation, been stolen. People v. Hoban, 88 N. E. 806, since one may not usually wrongfully ap- 807, 240 Ill. 303, 22 L. R. A. (N. S.) 1132, 16 propriate his own property. But it is as Ann. Cas. 226.
"To constitute 'larceny' there must be a | LARCENY FROM THE HOUSE trespass in the taking.
It is not House as element of, see House. necessary that the taking be by force or
Under Pen. Code 1895, § 178, providing stealth. If possession is obtained by fraud that “larceny from the house" is the breakwith intent to convert the property to the ing or entering any house with intent to steal, use of the taker, and it is so converted, or after breaking or entering said house steal‘larceny' may be charged.” Where E. and ing therefrom anything of value, the offense defendants conspired to steal the funds of a
can be committed in four different ways. labor union, and to that end procured the may consist in the breaking of a house with election of E. as recording secretary of the intent to steal, provided the offense is not union, and pursuant to his duty as such re- burglary; entering any house with intent to cording secretary he drew money from a steal; breaking a house and stealing therebank to be forwarded to the district and from, where it can be accomplished without national organizations, and carried the money entry or entering and stealing. Section 182 on his person until late in the evening, when defines two classes of "larceny from the pursuant to the conspiracy he pretended house" and distinguishes them. It provides to have been held up and robbed, the crime that "any person breaking and entering any was not “larceny" because of the absence of house or building (other than a dwelling a felonious taking. State v. Cothern, 115 N. house or its appurtenances) with intent to W. 890, 891, 138 Iowa, 236.
steal, but is detected and prevented from "At common law and under the statute, carrying such intent into effect or in stealin 'larceny' there must be a trespass. Where ing any of the articles therein contained." the ownership of property is not parted with The section then provides that "any person and by a fraud or trick the possession of the breaking or entering any such house or property is obtained and is converted to the building and stealing therefrom any money, use of the taker without the consent of the goods, chattels, wares or merchandise or any owner, and at the time of resorting to the other article of value shall be guilty of a trick or fraud to obtain the possession it misdemeanor.” This second division of the was intended to take the property and per- section is subdivided into thefts where there manently deprive the owner of it, this would is a breaking and entering in order to accomconstitute ‘larceny' at common law as well plish the theft, and where there is no breakas under the statute." State v. Copeman, 84 ing, but merely an entrance into the building S. W. 942, 945, 186 Mo. 108 (citing 1 Bish. and a theft is accomplished. But in both New Cr. Law, $ 585; State v. Murphy, 90 cases a theft must actually be committed. Mo. App. 548; Loomis v. People, 67 N. Y. Under the first portion of section 182, as in 322, 23 Am. Rep. 123; State v. Vickery, 19 the first clause of section 178, where a house Tex. 326).
other than a dwelling house and its appur
tenances is broken and entered with intent LARCENY AFTER TRUST DELE.
to steal, and the offender is detected, he is GATED
guilty of "larceny from the house,” though If a person, fraudulently intending to nothing be taken. Glaze v. State, 58 S. E. get possession of the money of another and 1126, 1127, 2 Ga. App. 704. appropriate the same to his own use, by false representations induces the owner to deliver LARCENY FROM THE PERSON the money to him for the purpose of being Included in robbery, see Robbery. applied for the owner's use or benefit, and Robbery distinguished, see Robbery. then appropriates it in pursuance of the See, also, Theft from the Person. original intent, he is guilty of both “larceny"
The crime of "larceny from the person" after trust delegated and simple larceny, and (B. & C. Comp. & 1800) is a compound larceny may be prosecuted for, and convicted of, consisting of simple larceny (section 1798) either offense. Martin v. State, 51 S. E. 334, aggravated by the circumstance of taking the 123 Ga. 478.
property from the person of another in LARCENY BY BAILEE
which the value of the property is not an
ingredient of the offense, as in case of simple See, also, Bailee.
larceny. State v. Reyner, 91 Pac. 301, 302, The language of Mills' Ann. St. $ 1256, 50 Or. 224. defining “larceny" by a bailee converting
The act of pocket picking is the offense money, etc., “he shall be deemed guilty of of "larceny of the person.” State v. Whitlarceny in the same manner as if the original ten, 92 N. E. 79, 80, 82 Ohio St. 174. taking had been felonious, and on conviction shall be punished accordingly,” makes the con
The two elements peculiar to "larceny" version by a bailee with intent to steal the from the person in the nighttime are that it exact equivalent of a felonious stealing, tak- must be "from the person" and "in the night. ing, and carrying away. Quinn v. People,
time"; and, upon information for larceny 75 Pac, 396, 397, 32 Colo. 135.
from the person in the nighttime, a verdict
of larceny from "a" person in the nighttime LARCENY BY FALSE PRETENSES is insufficient. State v. McGee, 80 S. W. 899, See False Pretense.
900, 181 Mo. 312.