SYLLABUS.

STATE VS. JOHN CONLAN.

Criminal Law-Larceny-General Reputation-Good Character; Evidence of-Reasonable Doubt.

I. Larceny defined. What the State must prove.

2. The evidence of general good character in a criminal prosecution must be confined to the trait of character in issue in the case, as general reputation for honesty and fair dealing in a prosecution for larceny. The evidence of such good character is to be considered by the jury in connection with all the other relevant testimony in reaching their conclusion.

3. General good character for honesty and fair dealing is proved by evidence of general reputation in that respect. That is, by proof of what people in the neighborhood in which the accused dwells generally say of his conduct or character in regard to honesty and fair dealing.

1901.

LORE, C. J., and GRUBB and PENNEWILL, J. J., sitting.

Herbert H. Ward, Attorney-General, for the State.

David J. Reinhardt for defendant.

Court of General Sessions, New Castle County, May Term,

INDICTMENT FOR LARCENY (No. 9, May Term, 1901).

GRUBB, J., charging the jury:

Gentlemen of the jury:-John Conlan stands charged in this indictment with the larceny, in Brandywine Hundred, this county, of one turkey of the value of five dollars, lawful money of the United States of America, the property of Ida Whortenbury.

Larceny is the wrongful or fraudulent taking and carrying away of the personal property of another with intent to steal it;

CHARGE.

that is, with a felonious intent to convert it to the taker's own use without the consent of the owner thereof.

As under the very just and benign maxim of our law every accused person is presumed to be innocent until he is proven guilty beyond a reasonable doubt, the onus is upon the State in this case to prove to you, beyond a reasonable doubt, first that a turkey as described in this indictment was taken and carried away; that it was the property of Ida Whortenbury, as alleged in this indictment, and that it was taken away with the felonious intent to convert it to the taker's own use and make it his own property without the consent of Ida Whortenbury, and that such taker was John Conlan, the prisoner at the bar, and no other person. Because, if you should be satisfied that this larceny, as described in this indictment, had been committed, but by some other person than John Conlan, then you could not find him guilty.

We have been asked to instruct you in accordance with the recent decision of the Supreme Court of this State (Daniels vs. State, 2 Pennewill, 586) as to the rule for your guidance in considering evidence of general good character in a criminal case. In compliance with that prayer we say to you that the evidence of general good character in a criminal prosecution must be confined to the trait of character in issue in the case, as general reputation for honesty and fair dealing is in the present prosecution for larceny. The evidence of such good character is to be considered by the jury in connection with all other relevant testimony in the case in reaching their conclusion and rendering their verdict as to the guilt or innocence of the accused.

General good character for honesty and fair dealing is proved by evidence of general reputation in that respect. That is, by proof of what the people in the neighborhood in which the accused dwells generally say of his conduct or character in regard to honesty and fair dealing.

In conclusion, we deem it only necessary further to say to you that you must be satisfied beyond a reasonable doubt of the guilt

SYLLABUS.

of the prisoner before you can render a verdict of guilty under this indictment.

By reasonable doubt is not meant a vague, fanciful, whimsical or even possible doubt of guilt, but such a doubt as naturally arises out of all the relevant evidence in the case before you, and such a doubt as may reasonably be entertained by men of ordinary intelligence, impartiality and judgment, after a careful and conscientious consideration of all such evidence.

With these remarks, we leave the case in your hands to render such verdict as under the law as we have given it to you, and under the evidence as it has been presented to you from this witness stand, you may deem right and proper.

Verdict, not guilty.

STATE US. WALTER T. DAVIS.

Criminal Law-Embezzlement-Bailee-Intent to Defraud-Custody of the Property-Good Character of Defendant; Absence of Proof of; Commenting on by Attorney-General.

I.

Attorney-General allowed to comment on the fact that the defendant had offered no proof of his good character.

2. A bailee is one to whom personal property, the subject of larceny under the statute, is delivered under a contract of bailment; and a bailment is a delivery of some personal property, the subject of larceny, by one person, or by another for him, to another; to be held according to the purpose of delivery; and to be returned when that purpose is accomplished.

3. Embezzlement is where one fraudulently appropriates the property of

PRACTICE.

another entrusted to his care, or fraudulently misapplies it instead of applying it to its proper purpose.

4. It is necessary for the State to prove that at least a part of the property described in the indictment actually came into the custody of the defendant as bailee, and while being so in his custody, he embezzled or fraudulently misapplied or converted it to his own use. In this offense the intent to defraud--that is, the bad faithis necessary to be shown before the defendant can be found guilty. The fraudulent intent may be proved either by direct evidence or by circumstances from which the fraudulent intent may be inferred.

1901.

(May 22, 1901.)

LORE, C. J., and GRUBB and PENNEWILL, J. J., sitting.

Herbert H. Ward, Attorney-General, for State..

William S. Prickett for defendant.

Court of General Sessions, New Castle County, May Term,

INDICTMENT FOR EMBEZZLEMENT AS BAILEE.

At the trial, after the testimony on both sides had closed, the Attorney-General, in his argument to the jury, commented upon the fact that the defendant had offered no proof as to his good character. This was objected to by Mr. Prickett, counsel for the defendant, as improper. The Attorney-General insisted that the Court had allowed such comments notwithstanding objections by defendant's attorney in the unreported case of State vs. Pullen, tried at the April Term, 1901, in Kent County.

GRUBB, J.:-We overrule the objection on the authority of the decision in the case of State vs. Pullen.

GRUBB, J., charging the jury:

CHARGE.

Gentlemen of the jury:-Walter T. Davis stands charged in this indictment with having, as bailee of the property of Hattie Luff, embezzled or fraudulently converted the same to his own use. The indictment is framed under this provision of a statute of this State, viz.: "That if any person, being a bailee of money or other property the subject of larceny, shall embezzle or fraudulently convert the same to his own use, he shall be deemed guilty of a misdemeanor," etc.

Before you can render a verdict of guilty in this case, the State must have proved to you beyond a reasonable doubt, first, that Walter T. Davis was the bailee of money, or other property the subject of larceny, belonging to Hattie Luff, as charged and alleged in this indictment; second, that as such bailee the accused embezzled or fraudulently converted the same to his own use.

A bailee is one to whom personal property the subject of larceny under this law of our State is delivered under a contract of bailment; and a bailment is a delivery of some personal property the subject of larceny by one person to another, to be held according to the purpose or object of the delivery and to be returned or delivered over when that purpose is accomplished. And we will say to you that the delivery under such bailment might have been either by Hattie Luff or by some person for her. But it is incumbent upon the State to show in this case that it was delivered to the accused either by her or by some other person for her as her agent for that purpose.

Embezzlement is where one fraudulently appropriates the property of another entrusted to his care, or fraudulently misapplies it instead of applying it to its proper purpose. And it is necessary for the State to prove that the property actually came into the custody of the defendant as bailee, and while being so in his custody as bailee he embezzled or fraudulently misapplied or converted it to his own use. It is not necessary for the State to prove such embezzlement or fraudulent misapplication of all of the articles alleged. The proof of such embezzlement or fraudulent