charging the jury :
Gentlemen of the jury:—John Sienkiewiez, Stanley K. Paklewski and Ludwig Kosin, the defendants, are charged in this indictment with having as bailees of certain personal property of Isabella Behringer, fraudulently converted the same to their own use in this county. The indictment is based on the following provision of a statute of this State passed May 3, 1893, Rev. Code 9£3, 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 against the defendants, or any of them, you must be satisfied from the testimony beyond a reasonable doubt, first, that such defendants or defendant were the bailees of property belonging to Isabella Behringer which was the subject of larceny; and second, that as such bailees they fraudulently converted the same to their own use.
A bailment, in such case, consists in the 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 *67be returned or delivered over when that purpose is accomplished. A bailee is one to whom such property is so delivered.
It is not denied that the property alleged in this case to have been fraudulently converted by the defendants to their own use is of such character as would, under the law of this State, be the subject of larceny; and we say to you therefore, that you may assume as an undisputed fact that the property described in this indictment is such as would be the subject of larceny.
As you have no doubt already noted, the material part of the charge against these defendants, and we may say the gist of this action, is the fraudulent conversion by the defendants to their own use of the property described in the indictment. It is incumbent on the State to satisfy you not only that the property came into the possession of the defendants as bailees by delivery from the owner thereof, and while so in their possession, was converted by them to their own use; but also, that it was fraudulently converted by them to their own use. •
Any exercise of dominion or control over property by one in possession thereof, inconsistent with the rights of the owner or with the nature and purpose of the bailment, is evidence of a conversion; but in order that it shall amount to a fraudulent conversion, to the bailee’s own use, it must be effected with the intent to defraud the owner. The intent to defraud,—that is, the bad faith of the bailees —is necessary to be shown before the defendants can be found guilty. Such fraudulent intent may be proved by direct evidence, such as the declarations and admissions of the defendants, or by any circumstances from which the fraudulent intent may be inferred.
It is not necessary for the State to prove the fraudulent conversion by the accused of all the property described in the indictment. The proof of the fraudulent conversion of any of the articles so described will be sufficient, if so proven to your satisfaction beyond a reasonable doubt.
It is strongly urged by the counsel for the prisoners that there . *68was no such bailment in this case as is required by law to support an indictment for the fraudulent conversion of property by the defendants as bailees, because the contract of bailment proved by the State was a void contract, being made on Sunday.
It is admitted by the State that the contract proved was made on Sunday and is void. But the State insists that even though such contract is void, and even though there be no contract at all, nevertheless there is a good and sufficient bailment proved in this case, and one capable of sustaining the indictment. This claim is based on the doctrine that a delivery of the property by Mrs. Behringer to the defendants upon a condition or trust that it should be returned, and an acceptance by the defendants of said property, constituted a valid bailment of the property and made the defendants the bailees thereof. That even though the contract attempted to be made between Mrs. Behringer and these defendants was invalid and of no effect, yet the property was in fact delivered by her under such circumstances as to create in the persons to whom she delivered it the relation of bailees of the property.
We think the law upon this subject is very clearly and correctly stated in the case of The Queen vs. McDonald, L. R., 15, Queen’s Bench Division, 323, upon which the State relies. In that case Lord Cold ridge, C. J., said :
“ It is said that the prisoner cannot be convicted of larceny as bailee, because being an infant he was not competent to enter into a contract of bailment; that the offence charged against him depending upon his having acted in a manner inconsistent with the terms of a contract, he being unable to enter into such a contract cannot be guilty of the offence. It seems to me that this contention is based upon an assumption which is not correct in law. It is not correct, as it appears to me, to use the expression “ contract of bailment ” in a sense which implies that every bailment must necessarily in itself be a contract. I do not so understand the definition of the term ‘ bailment.’ It is perfectly true that in almost all cases a contract either express or implied by law accompanies a bailment, but it seems to *69me that there may be a complete bailment without the contract.” * * * “ He is guilty of the offence, not because he has broken a contract, which he was incapable of making, but because, being capable of becoming a bailee of these goods and having become one, he dealt with the goods in such a manner as by the terms of the Act to render him guilty of the crime of larceny.”
In the same case, Cave, J., said: “ Surely there was a bailment in the sense that there was a delivery upon condition. The infant was in lawful possession of the goods only by reason of the owner’s having delivered them to him upon certain conditions.”
In Hale on Bailments and Carriers, at page Uj., it is said: “ It may be safely said that wherever possession of a thing is knowingly acquired, unaccompanied by the right of ownership, a bailment relation is established, and the person in possession holds the thing acquired simply as a bailee. The delivery is the keynote of the whole transaction.”
“ It is a general and well-established rule that no action can be maintained on a contract made in violation of law. When a contract is made on Sunday, and the making of it on that day is forbidden by statute, the contract is void, though the thing contracted to be done may be lawful. And yet, although the owner may place his property in the hands of another under a contract which is void, he does not forfeit his property in the thing which he has thus delivered. While the party to an unlawful contract shall not receive the aid of the law to enforce that contract, or to compensate him for the breach of it; and while the contract may be void, the general property in the thing bailed remains with the former owner. The consequences of a void contract do not extend to a forfeiture of the owner’s general right of property, and for a wrongful invasion of that right he may maintain trover against the bailee.”
Woodman vs. Hubbard, 25 N. H. (5 Foster), 67, and cases therein cited. Hale on Bailments and Carriers, 181; 2 Parsons on Contracts, 763 (5 Ed).
We say to you, gentlemen of the jury, that there may be a *70bailment without a contract; and even though the contract sought to be made be void in law, yet if the property be delivered by the owner, the law imposes upon the person to whom it is delivered the duty or obligation to return it to the owner.
It is for you to say, upon all the evidence in the case, after applying thereto the law as we have declared it to you, whether the defendants or any of them are guilty of the charge laid in this indictment.
If you are satisfied from the evidence beyond a reasonable doubt that the property described in the indictment, or any part of it, was delivered by Mrs. Behringer to the defendants upon a condition or trust to be returned to her, and so accepted by them, and you shall further believe that they did not return said property, but fraudulently converted the same to their own use, as alleged in the indictment, your verdict should be guilty as to all, or such of the defendants as you believe to be guilty under the evidence and the law as we have stated it.
If, after carefully considering all the • testimony, you should entertain a reasonable doubt as to the guilt of the defendants or any of them, your verdict should be not guilty as to any one or more of said defendants regarding whose guilt you entertain such reasonable doubt.
The jury disagreed.