*538The court observed to the jury, that if they were of opinion, from the evidence before them, that the understanding between the parties was, that it was a cash contract—that the coat was to be paid for on delivery, the fraudulent conduct of the prisoner to avoid a demand of the money- could not avail him, and that if "the jury believed these facts, it was clearly a case of constructive larceny.
The jury found the prisoner guilty.
Note—If the clerk of a banker or merchant has the care of money . or if he has access to it¡ for special and particular purposes, and is sent to the bag or drawer after money for the purpose of paying a bill, or if he is sent for the purpose of bringing money generally out of the bag or drawer ; and at the time he brings that money, he clandestinely and secretly takes out other money for his own use, he is as much guilty of a felony as if he had no permission or access to it whatsoever. So, if a ser. vant be sent to a library for one particular book, and he takes another, or being sent for a hat and sword, he steals a cane ; in all these cases it has been said the offenders are guilty of felony, for though the property is delivered, the ,possession of it remains in the true owner. Jac. L. Die. vol. iv. p. 75. O. B • 1784. Hawk. P. C. c. 33. § 6.
To make the crime felony, the felonious intent must exist at the very time of obtaining the goods. 3 Inst. 107. Dalt 367. In Stone’s case, City Hall Rec. vol. ii. p. 158. which was as follows : the prisoner was entrusted by Mr. Holly with the care of his horses, and sold one of them to' a Mr. Jansey, and received the money without the owner’s knowledge. The court charged the jury that the principal question for them to decide was. *539whether, at the time the prisoner took-the horse to ride to Jansey’s house, he took him with an intention of selling him, and converting the avails to his own use. Should the jury believe such was his intention, it would be their duty to find him guilty. But if, on the other hand, the jury should believe that the intention to sell the horse commenced at a time subsequent to his acquiring the possession, he would be entitled to an acquittal. The same principle was decided in Hisrott’s case, ibid vol. v. p. 137. and in O. Terre’s case, ibid vol iii. p. 154.
In Valentine’s case, City Hall Ree, vol. iv. p. 33. it was decided by his honor, Golden, mayor, that “ where it appears that a contract is made on the sale of goods, and a credit is given, the right of the property is changed on the delivery, and therefore an indictment for larceny in stealing these goods could not be supported ; but where goods are sold for cash, to be paid for on delivery, and the prisoner by fqlse representations, and with a felonious intent, obtains the delivery, it is well settled that it « is a constructive felony. It is right it should be so ; for in a moral point of view, the offence of obtaining goods by fraud and artifice is more aggravated than obtaining them secretly.
If a person having ordered a tradesman to bring goods, to his house, look out a certain quantity, ask the price of them, separate them ^ from the rest, and then by sending the tradesman home on pretence of wanting other articles, take the opportunity of running away, with the goods so looked out, with intent to steal them, it is larceny, for there did not appear a sufficient delivery to change the property, which still remained in the tradesman. Sharpless’ case, Leach, 108.
*540And where a person came into a shop, and asked the owner to show him some linen, which was delivered into his hands, and then he ran away with it, it was held larceny ;for the subsequent act of his running away with it plainly showed his intention to take the goods feloniously. 3 Salk. 194.
If a person obtain a carriage from a tradesman, under a pretence of hiring it, and afterwards convert it to his own use, he is guilty of larceny, if the jury find he had an original intention to steal it, although the contract of hiring was for any indefinate time, Semples’ case, Leach 470.
To obtain goods by fraud from the servant of the owner, to whom they are delivered for the purpose of being carried to a customer who had purchased them, is a taking from the possession of the master ; and if so obtained, with a felonious, and pre-conceived design to steal them, it is larceny. Wilkins’ case, Leach, 586.
A person Who induces another to deliver bank notes to him by the practice of ring-dropping, on a condition that if he does not restore them in such a time, the entire value of the things supposed to be found, shall belong to the person delivering the notes, is guilty of larceny ; for although the possession is parted with on the particular condition, yet the property still remains with the owner. Watson’s case, Leach, 730.
To aid and assist a person to the jurors unknown, to obtain money by the practice of ring-dropping, is felony, if such aider be present at the time the money is obtained from’the prosecutor, and the jury find that the prisoner was confederating with the person unknown to' obtain the money by means of this practice. Moore’s case, Leach, 354.
*541To constitute larceny, the possession must have been acquired animo furandi. 14 Johns. Rep. 294. State v. Gorman, 2 Nott. & ' Me Cord p. 90.
To aid and assist a person unknown to obtain money by the practice of ring-dropping is felony. If such aider be present when the money is obtained from the prosecutor, and the jury find a confederation with the person unknown. Moore's case, Leach, 354.
If a package be left by accident in a hackney coach, and the coachman, instead of restoring it to the owner, detain if, open it, destroy part of its contents, and borrow money on the rest, he is guilty of larceny. Wynes’ case, Leach, 460.
,So where a woman, on leaving a coach, desired the hackney coachman to hand a parcel to her servant, which he did not do, and the parcel was opened, and part of the goods were traced into the prisoner’s possession, he, on seeing the prosecutrix again, denied all knowledge of her or the parcel. This was held larceny. Sears’ case, Leach 463.
If a person hires a horse of another for a day, and rides off and immediately sells it, the delivery does not change the possession-And if he hired it with intention to steal, he is guilty of a larceny. Leach, 253. 255. Pears and Tunnard’s case.
If a carrier open a pack, and take out part of the goods ; if a miller who has corn to grind, takes out part of the same, with intent to steal it, it is felony. 1 Hawk. P. C. c. 33. § 5.
*542A man may be guilty of larceny in taking his own property, if he pledge it, and then obtain it again fraudulently from the pawnee, in order to charge him with the value. 1 Hale, 513. Fost. 123. Or if he rob his servants of his goods in order to charge the hundred. Ibid. 124. So he may be accessary. Ibid.
So also where the owner delivers goods to a carrier, and afterwards steals them from him with intent to charge him for them. 3 Inst. 110. Dalt. 373.
If one to whom a wagon load of goods, consisting of several packages, is delivered to be transported from one place to another, fraudulently take a way one of the packages, such taking is a felony. 4 Mass. Rep. 580.
But a bona fide finder of an article lost, as a trunk containing goods lost from a stage coach, and found on the highway, is not guilty of larceny, by any subsequent act, in secreting or appropriating to his own use the goods found. 14 Johns. Rep. 294.
If a tradesman agrees to sell goods to the prisoner for ready money, and accordingly books them, and leaves them with him with a bill of parcels, and receives in payment by his servant two bills which afterwards appear to be fabricated, the prisoner is not guilty of larceny, although the tradesman never intended to give credit, and the jury find that the prisoner intended to defraud the tradesman of the goods. Parkes’ case, Leach. 703,
If a horse be agreed to be purchased, and in pursuance thereof, is delivered to the prisoner by the orders of the prosecutor, it is not larceny in the prisoner immediately to ride away with i1 *543without paying the purchase money, for this was a sale, and. the possession as well as the property was entirely parted with. Harvey's case, Leach, 5~S.
An indictment cannot be grounded on a 1end~ng by the prosecutor. Long's case, Hayw. 154.
Where one intending to steal goods, gets possession of them by process of law unduly obtained, it is a felony. Kel. Rep. 43, 44.