State v. Brown

Dillon, Oh. J.

l. ckihotai. sories.acces I. The District Court, in its charge to the jury, after defining larceny, instructed them, “that if they believed from the evidence that the defendant procured Ferguson to take the mare, then the act of Ferguson is the act of the defendant for the purposes of this trial.”

The first point made by the defendant on this appeal, , is thus stated in the printed argument of his counsel: “ Larceny implies, in all cases, a tortious taking. There can be np larceny without a trespass. When property is sun’endered voluntarily by the owner or a person having the legal custody thereof, although surrendered to a person who has no shadow of right, and upon false representations made by such person, and with intent wrongfully to appropriate the property to his own use, it is not larceny. It may be a crime, but not that of larceny. If for any thing, the defendant should have been indicted under section 4394 of Revision, for obtaining the property by false pretenses.”

Two sections of the Criminal Code furnish a complete answer to this argument of the defendant’s counsel, and authorize the instructions of the court to the jury respecting the subject under consideration.

Section 4668 provides, that “ the distinction between an accessory before the fact, and a principal, is abrogated, and all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense, or aid and abet in its. commission, though not present, must hereafter be indicted, tried and punished as principals.”

a. —larceny: personation of another. And a section in the chapter on Larceny enacts, that, “if any person falsely personate or represent another, and, in such assumed character, receive any ' 3 J money or property intended to be delivered to the party so personated, with intent to convert the same to his own use, he is guilty of larceny, and shall be punished accordingly. Rev. § 4241.

If Ferguson had found Mrs. Carpenter’s mare at large on the prairie, and had there taken her with intent to steal, he would be guilty of larceny, and the trespass involved in the common law notion of larceny would exist. If the defendant Brown aided and abetted the act of Ferguson, he, though not present, would, under our statute, be a principal equally with Ferguson. Rev. § 4668, supra.

Whether a trespass could be predicated in law of the delivery by Brink, the custodian, but who had no proprietary interest or authority, of the possession of the mare to Ferguson for the owner, by reason of his fraudulent representations, we need not stop to inquire (see 2 Bish. Cr. Law, 3d ed., §§ 815, 817, 824, 827), for section 4241 of our statute applies, and under it, if Ferguson falsely and willfully represented to Brink, that his father was the owner of the mare, and caused Brink to deliver him the property as agent for such assumed owner, and if he received it with intent to convert the same to his own use, he is guilty of larceny.

And if Brown procured Ferguson to do this, he is also, under the statute, guilty of larceny though not present. Bev. § 4668.

Under the instructions given them, the jury must have found from the evidence, that Brown did procure Ferguson thus to obtain the property.

3__ trespass fn°gredie°nt tory larceny. It is true, as argued by appellant’s counsel, that at common law there could be no larceny without a trespass, and no trespass where there was a consent by a party authorized to give it, even though consent be obtained by fraud. But the section of the statute above quoted (§ 4241,) was enacted to do away with this technical doctrine of the common law in the cases therein mentioned.

4__ posseB. property °len evidence. II. Ferguson obtained the mare from Brink in the forenoon, and at four o’clock of the same day she was in the sole possession of the defendant. The court charged the jury that under the circumstances (which appear in the statement) it was in- ' cumbent on the defendant to explain to the jury how he came into the possession of the property. This was right. He did attempt such an explanation. He claimed that he had bought it of a stranger, and not of Ferguson; and his statements of the particulars of the purchase were not consistent.

Taking the whole evidence together, and the fact that the defendant failed to produce any evidence of good character, we cannot say that the jury did wrong in finding that the defendant’s explanation was unsatisfactory, and that he was the guilty associate of Ferguson, if not indeed the prime mover in the commission of the offense charged against them. The law as given to the jury accords with the rule established by the courts. See notes to Regina v. Evans, Lead. Crim. Cases, 363, where some of the more important adjudications on the subject of the presumption arising from the recent and unexplained possession of stolen property are stated.

If the defendant had admitted that he procured the property from Ferguson, and if there had been no previous acquaintance of the two, and no evidence of collusion, the State might have been bound to negative his account. And so if he had claimed to have purchased it of a real person, naming him, by whom the account the defendant gave could be disproved if false, the State might have been obliged to prove the falsity of the explanation. But where the claim is, that he bought the property of a stranger, this is not necessarily such an explanation as obliges the State specifically to disprove it. Notes to Regina v. Evans, supra. It is enough if the attendant circumstances satisfy the jury of the falsity of the explanation, and of the guilt of the defendant beyond reasonable doubt.

In the case at bar the circumstances were strongly inculpatory of the defendant, and his conviction does not rest alone upon the presumption of guilt arising from his very recent possession of the property.

In conclusion, it is deemed proper to remark, that, at first, we somewhat doubted the sufficiency of the evidence to sustain a conviction. It was a case in which proof of previous good character would have been peculiarly appropriate, and such proof would very much have strengthened the doubts referred to. These doubts are weakened by the failure of the defendant to produce any evidence whatever ; and defended as he was by experienced counsel, we feel justified in presuming that the failure to prove good character and other facts, which, had defendant béen innocent, would seem to have been within his power, is to be ascribed not to oversight, but to inability to establish an antecedent character for honesty, and to disprove or explain the facts indicative of guilt shown by the evidence for the State.'

Affirmed.