In March, 1926, the defendant was the tenant of an apartment on Riverside drive in the city of New York. The term of his lease had expired, but right of occupation and possession continued under the statutes known as the Rent Laws. He inserted an advertisement in the New York Times offering to "subrent by month or year" his furnished apartment. The complaining witness read the advertisement on March 12th. He communicated *Page 357 with the defendant and pursuant to appointment he met the defendant on the same day at his apartment. The complaining witness agreed to lease the apartment till June 1st; possession was to be given on March 20th. The rent of $550 was to be paid in advance. The complaining witness paid $40 on account and agreed to pay the balance of the rental in advance the following morning, March 13th. He received from the defendant a written receipt, signed by the defendant, for the $40 he paid on account. The terms of the agreement were embodied in it. On the following morning the complaining witness paid the defendant the sum of $510, the balance of the agreed rental, but he has not received possession, either on March 20th, or at any other time, of the apartment which the defendant agreed to rent to him.
The indictment against the defendant contains two counts. The first count charges in effect that the defendant obtained the sum of $510 from the possession of the complaining witness "by false and fraudulent pretense and representation." The only false representation which is alleged is that the defendant "then and there owned a lease of Apartment 12C at premises 131 Riverside Drive, New York County, covering a period of eight years, which said lease then had still two years to run." The second count charges in common-law form the larceny of the same moneys. At the close of the People's case the trial justice dismissed the first count of the indictment. His ruling was not based upon any technical distinction between common-law larceny by trick and device, and obtaining money or property by false pretense. It was based upon a holding that the evidence showed beyond possibility of dispute that while the defendant did not have a lease of the apartment with two years to run, yet, if he continued to pay rent, he did have right to possession under the Rent Laws extending beyond the term for which he agreed to give a sublease and that, therefore, the *Page 358 alleged false representation, even if made, was not material. At the time the motion was made, the evidence was clearly insufficient to show that the complaining witness had parted only with possession of the moneys, reserving title thereto, and the trial judge was apparently not under any misapprehension that in such circumstance a conviction for common-law larceny could be sustained. He did, however, permit the complaining witness to be recalled in an attempt to show that he gave the defendant the money only upon condition. After additional testimony was given, the trial judge denied the motion to dismiss the second count of the indictment. The jury convicted the defendant upon the second count, and the only question which requires serious consideration is whether the evidence is sufficient to show common-law larceny by trick and device. If the conviction must be reversed, it is not because of mistaken choice of which crime the evidence shows was committed.
The complaining witness parted with his money under a contract which required payment in advance for rental of an apartment. The receipt given by the defendant so recites. The complaining witness testified that he paid the money on condition that he should receive possession of the apartment. Of course the complaining witness paid the money with the expectation that he would in return receive the agreed consideration, but the evidence seems to show clearly that the complaining witness parted not only with temporary possession of the money but with his general property in it. The purpose of payment of the rent in advance was that the defendant might have the right to use the money immediately for his own purpose. He told the complaining witness in effect that he would use it to pay his rent to the landlord of the apartment which he was agreeing to sublease to the complaining witness. He did use it for the purpose of paying rent which was in arrears. Perhaps the defendant did not intend to give to the complaining witness *Page 359 possession of the apartment for which rent was payable in advance. He may have been guilty of conduct which was morally reprehensible, but he is not guilty of larceny by trick and device if the complaining witness transferred to the defendant not merely possession but ownership of the money. We may not pass upon the defendant's moral conduct, or even upon the question of whether he may have been guilty of some crime other than common-law larceny. The sole question before us is whether he has been properly convicted of that crime.
Narrow technical distinctions by which a wrongdoer may escape the consequences of a crime hinder the administration of justice. The courts which administer the law fail to function properly when the penalty which the law has placed upon the commission of a crime may be evaded by the proven criminal through subtle reasoning based on obsolete theory. These are truisms which should require no repetition, but they may not lead the court to create a new definition of a particular crime because judges may believe that the limits previously fixed are too narrow. It is the function of the Legislature to determine whether modern conditions dictate a wider definition of acts which should subject the wrongdoer to criminal responsibility. We may not assume that function even where the established definition of a crime may be based upon distinctions which seem to us at the present time inconsequential. We may not hold that acts come within such definition which under recognized authority have been hitherto excluded.
A long line of authorities in this and other jurisdictions have in the past laid down the limits which define the crime of larceny when possession of property is obtained by a trick or device. On the one hand, we have the cases where "the possession of the money or goods said to have been stolen has been parted with, but the owner did not intend to part with the property in them, so that part of the transaction is incomplete and the parting with *Page 360 the possession has been obtained by fraud — that is larceny." Per Lord COLERIDGE in the case of Queen v. Russett (1892, 2 Queen's Bench Division, 312). On the other hand, we have the cases where the owner has parted not only with possession but with title to property or money — in such cases there can be no common-law larceny.
In some jurisdictions such distinctions have been obliterated by statute. (See 24 and 25 Victoria, chap. 96, sections 72 and 88; Stephen's Digest of Criminal Law [7th edition], p. 483; Massachusetts Revised Laws, 1902, chap. 208, sections 26, 39, 40 and 67; Commonwealth v. McDonald, 187 Mass. 581; "Larceny, Embezzlement Obtaining Property by False Pretenses," 20 Columbia Law Review, 318.) In this State the distinction has been maintained, at least for some purposes, in the statute. True, the statute provides that not only a person who "takes" property "from the possession of the true owner, or of any other person" but also a person who "obtains" property "from such possession by color or aid of fraudulent or false representation or pretence" is guilty of larceny (Penal Law, section 1290), but a defendant may not be convicted upon the charge of "taking" the property of another from the possession of the true owner where the owner parted not only with the possession but with the title. The section includes in the definition of larceny "every act which was larceny at common law besides other offenses which were formerly indictable as false pretenses or embezzlement" (People v. Miller, 169 N.Y. 339), but a defendant must be charged with the particular offense the People claim he has committed. (People v. Dumar, 106 N.Y. 502.) In this case the dismissal upon failure of proof of the count of the indictment which charges the defendant with obtaining money by false pretenses leaves open only the question of whether the evidence sustains the charge contained in the indictment of common-law larceny by trick and device. *Page 361
The cases where the courts have been called upon to determine whether the evidence shows common-law larceny are so numerous that extended analysis, or even reference, must be limited to a few cases selected largely because the People maintain that they constitute authority to sustain the conviction. The fundamental distinction already pointed out between larceny and obtaining property by false pretenses has hardly been questioned. Where the owner has voluntarily and completely passed title there can be no common-law larceny by trick and device, though the owner was induced to part with title by fraud. Difficulty arises only in the determination of whether the title has passed completely. Here the money was delivered in return for the promise to deliver possession of the premises one week later under a lease to continue to June 1st. Nothing was said that the delivery of the money was conditional upon the delivery of possession of the apartment. On the contrary, it was expressly agreed that payment should be "in advance," and the defendant had the right immediately upon receipt of the money to use it for his own purpose. The money was received as the result of a contract, but the defendant did not by contract agree that he would use it for any specific purpose.
Distinction between delivery of money or property upon the credit of future promise, and delivery of money or property upon express or implied condition has been pointed out in the case ofRegina v. Slowly (12 Cox Criminal Cases, 269). In that case the complaining witness unloaded onions at a place directed by the defendants, relying upon the defendants' statement that "you shall have your money directly the onions are unloaded." The court there held that the defendants were guilty of larceny, for the passing of the title of the onions and payment for them were intended to be simultaneous, and until payment was made, delivery was incomplete. The court nevertheless stated: "If in this case it had been *Page 362 intended by the prosecutor to give credit for the price of the onions even for a single hour, it would not have been larceny." To the same effect is the case of Queen v. Russett (1892, 2 Q.B.D. 312), where the complaining witness gave the defendant a sum of money as part of the purchase price of a horse upon an agreement that complete delivery of purchase price and delivery of the horse should be part of the same transaction and constitute concurrent conditions. In the case at bar, however, the complaining witness did intend to give credit to the defendant. The contract between the parties could not be completely performed till the defendant gave possession of the apartment, but nothing remained undone under the contract which constituted condition to the right of the defendant to use the money as his own. Even if he acquired that right by fraud, he has not by trespass taken the property of defendant, and is not guilty of larceny.
In this State the rule was stated in Smith v. People (53 N.Y. 111): "If by trick or artifice the owner of property is induced to part with the custody or naked possession to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but the right of property also, the offense of the party obtaining them will not be larceny, but that of obtaining goods by false pretences." In that case the statement of facts shows that the complaining witness "gave the prisoner a watch, chain and locket or cross and two dollars in money, belonging to her husband, which property he was to pawn and give the ticket and money to her husband." Clearly the prisoner did not obtain the right to treat the property as his own; possession was given to him only for a special purpose and until the purpose was carried out right of property remained, and was intended to remain, in the original owner and the prisoner was only the custodian. He might, therefore, be held guilty of larceny. *Page 363
In Hildebrand v. People (56 N.Y. 394) "the prosecutor handed the prisoner, who was a bartender in a saloon, a fifty dollar (greenback) to take ten cents out of it in payment for a glass of soda." The court held that under these circumstances "the prosecutor retained the control and legally the possession and property." "It was an incomplete transaction, to be consummated in the presence and under the personal control of the prosecutor. There was no trust or confidence reposed in the prisoner, and none intended to be. The delivery of the bill and the giving change were to be simultaneous acts, and until the latter was paid, the delivery was not complete."
In Loomis v. People (67 N.Y. 322) the complaining witness delivered money as a stake upon the throw of dice. The court there held that the delivery of the stake was understood and intended to be complete only if and when the complaining witness lost the throw. Obviously title to money staked upon a chance is intended to pass only when the chance has ended; and delivery of money or property as a stake becomes complete only when the contingency upon which title is intended to pass has eventuated. To the same effect is the case of Queen v. Buckmaster (1888, 20 Q.B.D. 182).
In Shipply v. People (86 N.Y. 375) the defendant obtained possession of goods without paying for them, though the goods were sent to him C.O.D. By contract between the parties, delivery of the goods and payment therefor were to be simultaneous. Delivery was incomplete till payment was made and no title could pass till that time.
In all these cases the owner of the goods or moneys made delivery to the defendant upon an implied or express understanding and condition that delivery should not be complete and title should not pass until the defendant did a stipulated act or other stipulated contingency arose. Until that time the defendant was the bare custodian. Here the complaining witess reposed confidence and *Page 364 trust in the defendant. He made delivery to him in reliance upon promise to give him possession of the apartment a week thereafter. Delivery of the money by the owner and performance by the defendant of the promise were not intended to be simultaneous. The owner gave the defendant the right to deal as he wished with the money, even before stipulated performance on his part. These circumstances differentiate the case under review from the earlier cases so completely that under the reasoning of these cases opposite conclusion seems dictated in this case, and that conclusion is fortified by other decisions of this court. (Zink v. People, 77 N.Y. 114; People v. Dumar, supra.)
It is said that the decision of this court of People v.Miller (169 N.Y. 339) presents an analogous situation and supports the judgment of conviction in this case. The defendant there duped a large number of people and induced them to deposit money with him to be used in speculation by a representation or promise that he would pay a "dividend of ten per cent weekly until the deposit was withdrawn." The court held that a "depositor" intended to part only with the manual custody of money delivered to the defendant. The defendant acquired no right to use it as he saw fit, but might use it only for speculation through a "syndicate" in which each depositor should have an interest. Unless or until the money was used for the purpose for which it was delivered, delivery was not complete and title did not pass. The court pointed out that in that case the defendant obtained the property by false promise, but it was a false promise "as to future operations with the property." In the present case if there was false promise by the defendant it did not concern "future operations with the property." In theMiller case the owner parted with possession of property only for the purpose of enabling the defendant to carry out his promise to use it for the owner's benefit, and to the extent necessary to effectuate that purpose. *Page 365 In the present case the owner parted absolutely with all control of the money and vested in the defendant full and complete right to use it for his own purpose and benefit, relying upon the defendant's promise to transfer in the future the stipulated consideration for the money. In such case, under all authorities, there is no trespass and no larceny.
Some reliance is placed upon the statement in the opinion by Mr. Justice HOLMES in Commonwealth v. Rubin (165 Mass. 453 at p. 455) that: "It may be assumed that acceptance of a chattel upon a contract or promise, with intent not to carry out the promise but to convert the chattel" may constitute larceny; citing Commonwealth v. Barry (124 Mass. 325); Bishop on Criminal Law (8th edition, section 813). Read in its context and in the light of the authorities cited it is evident that the words "contract or promise" refer to a contract or promise in regard to future operations with the property and not to a contract where the owner parted with title to property upon faith in a promise given by other party. Indeed, Mr. Justice HOLMES in the previous sentence has stated the rule that there may be larceny "when the possession of a chattel, but not the title, is gained by a trick or fraud with intent to convert it" (italics are ours). In this case even if we assume that the defendant did obtain money by trick or device, he is not guilty of larceny for the owner was induced to give not only possession but title.
Judgment of the Appellate Division and that of the trial court should be reversed and the indictment dismissed.