A motion for rehearing has been filed in this case, which is supported by an exhaustive brief in which it is strenuously maintained that the court erred in holding that the question should have been submitted to the jury whether the defendant was a trespasser in taking possession of the property when found. The gist of the argument is thus stated in the brief: “It attempts to shift the issue as to the ownership and possession of the money stolen. In theory this decision in based upon the proposition that the guardian, at the time of !hp conversation in the county judge’s office with the defendant, was in control of, and had the right to order a change in the possession of, the $1,000 in gold, and from that time any trespass which might be committed as to this money would he against the guardian,.and would be excused by the consent implied in his direction to the defendant. It is clear that the owner placed the money in the jar in the earth, and while it remained there undisturbed it was in Ms possession. The right of possession in the guardian under the law must not be confused with the possession of the real owner. The owner’s possession was disturbed the first time when the *820defendant removed the jar and took the money. * * * Assuming that it is established by the verdict of a jury that the guardian told the defendant if he found more money to bring it to him, did the guardian thereby excuse the defendant from larceny committed against the true owner of the money, or did this direction from the guardian change the offense from larceny to some other form of crime? The guardian not having at any time the possession of this money, it is clear that larceny from him as to this sum could not be maintained.” Throughout the brief it is concluded, without very much argument of the point, that if the ward, when the guardian was appointed, was in the constructive possession of the gold he Avould remain in such constructive possession until the guardian had' taken actual possession of the gold. The argument does not admit that constructive possession is in the holder of the legal title, that is, in the one to Avhom the right of possession has been legally transferred. It assumes that one in constructive possession of property must remain in constructive possession until the absolute possession- has been changed; that is, that constructive possession cannot .be transferred. It is probably unnecessary to discuss this proposition, since the conclusion does not depend upon it, as will appear from a careful consideration of the above quotation from the brief.
There can, of course, be no doubt that, when the guardian was appointed and the ward was deprived of his personal liberty — incarcerated in the asylum — the guardian had the right of possession of the ward’s property, wherever situated, and in law was in control thereof. The guardian could, of course, take possession of the gold if he found it himself. It would be his duty to do so. If he had been present with the defendant at the time, he could, of course, have entrusted the gold to his possession. And, also, the guardian could, if he supposed that there was a probability that property of his ward of any description Avas hidden upon the premises, send his agents to take the property and to dispose of it for him. By doing so he would *821not “excuse the defendant from larceny committed against the true owner of the money,” but he would authorize the defendant to take possession of the money, and the defendant being so authorized would not be a trespasser in so doing. There can be no larceny without trespass, and no one can be guilty of trespass in doing that which he has been authorized by proper authority to do. It seems to us that there can be no doubt that the guardian was clothed with power to direct the disposal of this money when found, and that no authority as to its possession could be derived from any other source, and one who acted under the instructions of the guardian with regard to the possession of the money could not be a trespasser in so doing.
The question whether the instructions of the guardian, if they were as claimed by the defendant, would result in giving to the defendant the custody merely of the property as the servant of the guardian and for a specified purpose, is a more serious question, a question not presented in the original briefs and not much discussed in the present one. If the defendant and the guardian had been present when the jar containing the gold was found, and the guardian had entrusted the defendant with the jar to be delivered in a certain place, and the defendant had afterwards broken the jar with intent to steal the gold, there can be no doubt that the breaking of the jar and taking possession of the gold would be a trespass against the rights of the guardian upon the part of the defendant, but this was not the case here. It was, according to the defendant’s theory, the money and not the unbroken package that Avas entrusted to the defendant to be delivered to the county judge or to the guardian, and this question,-as well as the other questions pointed out, should have been submitted to the jury under proper instructions. The technical and exact distinctions betAveen larceny by bailee and larceny in general, created by the statute, must be observed by the courts. The defendant cannot be charged with the crime of larceny in general and convicted of the crime of larceny as bailee. The distinction of the common law betAveen *822these two crimes is expressly preserved by the legislature, and must be regarded by the courts. When there is con-. dieting evidence as to which of two crimes thus described has been committed, the question must be submitted to the jury, and cannot be determined by the courts.
We think that the judgment complained of is right, and it is therefore adhered to. Motion for rehearing
Overruled.