[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 378 We think neither of the exceptions are well taken. The evidence of facts assumed by the prisoner's counsel in his request for an acquittal was far from conclusive. A sale has been defined to be a transfer of the absolute property in a thing for a price in money (Benj. on Sales, 1); and this expresses the general understanding of the term. But within any definition it must include those elements, and the transfer must of course be with the assent of the owner. The jury may have found that the prisoner's case fell short of this. The owner agreed that he should have the goods on payment of or when he paid the price, not before. It was the understanding of both that the two events were to be contemporaneous. This was the agreement. The goods were secure in Howard's possession, the title was in him, and although he sent them from beyond the walls of his store it was upon the same agreement, and his relation to them was unchanged. Nor was the actual custody altered. He placed them in the hands of one, who as to him was an expressman or public carrier, with directions to deliver the goods only on receiving pay therefor. The prisoner knew this, and knew that it was only by payment of money he would be entitled to the goods. No doubt if he had paid the money to Story he would have been relieved from liability whether Story paid it over to Howard or not, for as to this, Story was Howard's agent, and his only authority was to hand over the goods on receiving the money. It was, therefore, a limited or special authority. It did not enable him to make a contract or waive the terms of one already made. He could part with the possession, but the property nevertheless remained in Howard. In fact, the assumed expressman was in the employ of the prisoner; but of this Howard was ignorant. The prisoner received the goods from Story without payment of money or other thing of value. The jury may have found that this was his scheme at the beginning, and thus that there was on his part a felonious intent — ananimo furandi — pervading the transaction and continuing to the end; that there was no delivery by the owner or parting with the title; and, if so, the verdict was right. *Page 380
The learned counsel for the plaintiff in error has cited many cases to show that the offense is not made out if the owner intends to part with the property and delivers possession absolutely, although he has been induced thereto by fraudulent means. They have no application to the case in hand. The jury, under, as must be assumed, a correct exposition of the law, have found to the contrary, and the evidence sustains the finding. The owner expected the property to be returned to him unless the money was paid. This the plaintiff in error knew, and when he received the goods, he obtained them not by Howard's parting with the property, but against his will and consent. His position, therefore, is not different from what it would have been, if at the time of the negotiation for the goods he had, after agreeing to buy, and assenting to the price and terms of cash payment, taken away the goods without payment or the consent of the owner. Neither the lapse of time nor the intervention of another party relieves him, for the authority of the pretended expressman, as we have seen, was limited. The condition was the same, viz.: when the prisoner paid the price, he should have the goods, and not before. He took them without the owner's consent, and without payment. Thus the offense in either case would be larceny. (Reg. v. Cohen, 2 Denison's C.C. 249; Reg. v. Webb, 5 Cox's C.C. 154; Reg. v. Slowly, 12 id. 269; Queen v.Prince, L.R., 1 C.C. 150; Hildebrand v. People, 56 N.Y. 394. ) The evidence objected to was properly received as bearing upon the question of intent. The ruling is sustained upon the principle applied in cases cited by the General Term and inMayer v. People (80 N.Y. 364), and People v. Shulman (note thereto, p. 373), where the examination of cases was made with such fullness as to preclude the necessity for more discussion. In the case before us, as in those, the quo animo of the transaction was one of the facts to be arrived at and might be established in the same manner.
The judgment should be affirmed.
All concur.
Judgment affirmed. *Page 381