unloaded the onions and asked for his money; they wanted a bill; he gave it; they made a cross on it, put on a penny stamp, said now they had a receipt, and refused to restore the onions or pay the price. Next morning they offered the onions for sale. The jury convicted both of larceny. For them it was contended there was no larceny as the sale was on credit. KELLY, C. B. I am of opinion that the conviction should be affirmed. If in this case it had been intended by the prosecutor to give credit for the price of the onions, even for a single hour, it would not have been larceny; but it is clear that no credit was given or ever intended to be given. Any idea of that is negatived by the statement in the case that the prisoners agreed to buy for ready money. In all such sales the delivery of the thing sold, or of the money, the price of the thing sold, must take place before the other; i. e., the seller delivers the thing with one hand while he receives the money with the other. No matter which takes place first, the transaction is not complete until both have taken place. If the seller delivers first before the money is paid, and the buyer fraudulently runs off with the article, or if, on the other hand, the buyer pays first, and the seller fraudulently runs off with the money without delivering the thing sold, it is equally larceny. Mellor, J., Pigott, B., Denman, J., and Pollock, B., concurred. Conviction affirmed. R. v. Slowly, 12 Cox C. C. 269, 27 L. T. 803, B. 516.

(New York Ct. of App., 1874.) Money Given to Pay Bill and Have Change. Appellant was convicted of larceny. CHURCH, C. J. The prosecutor handed the prisoner, who was a bartender in a saloon, a fifty-dollar bill (greenback) to take ten cents out of it in payment for a glass of soda. The prisoner put down a few coppers upon the counter, and when asked for the change he took the prosecutor by the neck and shoved him out doors, and kept the money. The question is presented on behalf of the prisoner whether larceny can be predicated upon these facts. There was no trick, device, or fraud in inducing the prosecutor to deliver the bill; but we must assume that the jury found, and the evidence was sufficient to justify it, that the prisoner intended, at the time he took the bill, feloniously to convert it to his own use. It is urged that this is not sufficient to convict, because the prosecutor voluntarily parted with the possession not only, but with the property, and did not expect a return of the same property. This presents the point of the case. When the possession and property are delivered voluntarily, without fraud or artifice to induce it, the animus furandi will not make it larceny, because in such a case there can be no trespass, and there can be no larceny without trespass. [P. v. McDonald] 43 N. Y. 61 [Mi. 701]. But in this case I do not think the prosecutor should be deemed to have parted either with the possession of, or property in, the bill. 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. Affirmed. Hildebrand v. P., 56 N. Y. 394, 15 Am. Rep. 435, 3 Thomp. & C. 82, B. 519; S. C. in the court below, 1 Hun. 19.

(Eng. C. C. R., 1873.) Same. On indictment against Elizabeth Bird for stealing 19s., property of Maria Lovell, it was shown that said Bird was the daughter of a man who traveled about to fairs with a merry-go-round; that on the day in question the said Lovell got into the merry-go-round, which was then in charge of the said Bird, and handed to the said Bird a sovereign in payment for the ride, asking her to give her the change; the said Bird thereupon handed to the said Maria Lovell 11d., and said she would give her the rest of the change when the ride was finished, as the "merry-goround" was then about to start; and that the said Lovell assented to this, and about ten minutes after when the ride was over, she found the said Bird, who was then attending to the shooting gallery, and asked her for her change, to which the said Bird replied that she had only received from her 1s., for which she had given the proper change, and she declined to give any more. Upon these facts it was contended by the counsel for the prisoner: 1, that the prisoner could not be convicted of stealing the 19s., because no specific 19s. had ever been appropriated as the change for the sovereign handed to the prisoner, nor had there been a taking, either actual or constructive, of the 19s. from the said Lovell; 2, that under the above form of indictment the prisoner could not be convicted of stealing the sovereign; and that even if the indictment was sufficient, there was no evidence of a felonious taking of the sovereign, as it was not taken from Lovell against her will; and further, that the prisoner could not be convicted of larceny of the sovereign as a bailee, because, assuming that there was any evidence of a bailment, which was denied, the bailment was not to redeliver the same money which was delivered to the prisoner. COCKBURN, C. J. The majority of the judges are of opinion that the prisoner was not properly convicted of stealing the 19s. charged in the indictment, for she had not taken them from the prosecutrix, and could not therefore be convicted on this indictment. The majority of the judges do not say that she might not have been convicted on an indictment charging her with stealing the sovereign if the issue had been properly left to the jury. Upon the present indictment, however, she must be discharged. Conviction quashed. R. v. Bird, 12 Cox C. C. 257, 42 L. J. m. c. 44, 27 L. T. 800, 21 W. R. 448, C. 361.

(Mass. Sup. Judicial Ct., 1878.) Bill Taken to Change. As A was passing a bar-room, the defendant, a girl, called him in, and he, at her request, gave her money to buy a bottle of brandy. They went upstairs together, and she said this bottle would not be enough for the night, and asked for more money with which to buy another

bottle. A, thereupon, gave her a $20 bill to get a quart of brandy, the price of which was $3, not expecting to receive the bill back, but the change, after deducting the price of the brandy. The defendant went out and soon returned with another girl, saying she could not get it. The other girl said she knew where to get it, and the two girls went out and he saw no more of them or his money. Upon this evidence the defendant was held properly convicted of larceny. It was held that the jury was justified in finding that A intended merely to part with possession, retaining title. C. v. Barry, 124 Mass. 325.

(Minn. Sup. Ct., 1878.) Keeping the Change Without Paying the Bill. Appellant was convicted of larceny. He, being in a buggy, and in a hurry to cross the Minnesota river, applied to one Baldwin to cross him over as quickly as possible, in order to enable him to reach a train on the M. & St. L. R. R. While being ferried hurriedly over, but before reaching the opposite shore, he asked Baldwin the amount of the fee, and if he could change a five-dollar bill. The latter at once proceeded to count out the required amount in change, over and above the ferriage fee, placing it in the bottom of the buggy, in front of defendant, who was on the seat. About this time, the boat struck the shore, and the ferryman stepped back and seized the rope, in order to hold the boat, leaving the money in the buggy. Thereupon, the accused, without delivering over the five-dollar bill, immediately drove off. CORNELL, J. It is immaterial at

what precise moment of time, during the transaction, the felonious intention was first formed of taking and holding the money against the consent of the owner; whenever it was formed and executed, animo furandi, by carrying it off, that moment he became a trespasser, and was guilty of larceny. That he may have had no wrongful intent, in fact, at the precise point of time when he first received the money into his buggy from Baldwin, was not a controlling circumstance in determining the question of his guilt or innocence of the offense charged; for the delivery to him of the property, under the circumstances, was only a conditional one, out of which no legal possession nor right of possession, against the owner, could spring, except upon performance of the condition. His retention of the money without such performance, and against the consent of the owner, was wrongful, and made him a trespasser; and if this was also done with a felonious intent of stealing, he became criminally liable. Affirmed. S. v. Anderson, 25 Minn. 66, 33 Am.

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Rep. 455, F. 277.

(Kan. Sup. Ct., 1902.) To Make Change. Prosecutor gave defendant a $20 gold piece to change into currency, put into a letter, and deposit in the mail at the postoffice where the parties then were. Defendant made the change, and put it into the letter, and then refused to deposit the letter or give it or the original piece to prose

cutor. Conviction of grand larceny on these facts was affirmed. Everything being intended to be done in the presence of the prosecutor, defendant had only custody. S. v. Walker, 65 Kan. 92, 68 Pac. 1095.

§ 129. "In Some Other Capacity."

(Mass. Sup. Judicial Ct., 1867.) Money Given to Count. HOAR, J. We are of opinion that there was no evidence to sustain the indictment for embezzlement, and that the conviction was wrong.

The facts reported in the bill of exceptions do not show that the possession of the owner of the money was ever divested. She allowed the defendant to take it for the purpose of counting it in her presence, and taking from it a dollar, which she consented to lend him. In all such cases the temporary custody, for the owner's purposes and in his presence, is only the charge or custody of an agent or servant, gives no right of control against the owner, and the owner's possession is unchanged. Exceptions sustained. C. v. O'Malley, 97 Mass. 584, B. 518.

(Cal. Sup Ct., 1891.) Money Given to Show Game. Defendant pretended to be agent for the Louisiana Lottery, wished to sell tickets, and finally, to explain the methods of drawing. He spread on a table a paper of squares and figures, and asked those present to put down money so he might illustrate with it, claiming he would return it in the end, but which he did not do. This proof was held insufficient to sustain embezzlement, being simple larceny. "If the owner puts his property into the hands of another, to use, or do some act in relation to it, in his presence, he does not part with the possession, and the conversion of it, animo furandi, is larceny." Per DE HAVEN, J. Reversed. P. v. Johnson, 91 Cal. 265, 27 Pac. 663. Acc. P. v. Shaughnessy, 110 Cal. 598, 43 Pac. 2.

(Mass. Sup. Judicial Ct., 1891.) Giving Money to Pay Out in Owner's Presence. Defendant was convicted of larceny. Teeling employed him to learn the price of a piece of land. The land agent, Bent, told him the price was $125. Defendant told Teeling the best price was $325, of which $300 was for the owner, $15 for Bent, and $10 for defendant. Teeling assented, the deed was made, the three met, defendant approved the deed, and Teeling counted out on the table $325. Defendant took it up, counted it, called Bent into another room, gave him $125, returned, gave Teeling a receipt for $10, and kept the rest of the money. Defendant excepted to the instruction to the jury, that they might convict if they found defendant obtained the money by premeditated trick, on the facts as above stated. HOLMES, J. When defendant took up the money from the table it had not yet passed under the dominion of Bent, who represented the opposite party. The defendant did

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ot receive it as representing the opposite party; he purported to be eting in the interest of Teeling. The jury would have been waranted in finding that Teeling impliedly authorized the defendant on. take up the money from the table, but they only could have und that he allowed him to do so for the purpose of immediately meansferring the identical bills, or all but ten dollars of them, to Bent mendler Teeling's eyes. Subject to a single consideration, to be mened later, there is no doubt that in thus receiving the money for oment the defendant purported at most to act as Teeling's nt, or hand, under his immediate direction and control. Therenot only the title to the money, but the possession of it, reed in Teeling while the money was in the defendant's custody. O'Malley, 97 Mass. 584 [above]. If the defendant had misappropriated the whole sum, or if he misappropriated all that was left after paying Bent, the offense would be larceny. C. v. Berry, 99 Mass. 428 [§ 152]. * *** The instructions made the defendant's liability conditional upon his having obtained the money from Teeling by a premeditated trick or device. If he did so, and appropriated all that was left after paying Bent, he was guilty of larceny, irrespective of the question whether Teeling retained possession, according to the dicta in C. v. Barry, 124 Mass. 325, 327 [§ 127], under the generally accepted doctrine that if a party fraudulently obtains possession of goods from the owner with intent at the time to convert them to his own use, and the owner does not part with the title, the offense is larceny. Even if the possession had passed to the defendant, there can be no question that the title remained in Teeling until the money should be handed to Bent. See note to R. v. Thompson, Leigh & Cave, 225, 230. In this case, however, by the terms of his agreement with Teeling, the defendant had the right to retain ten dollars out of the moneys in his hands, and it may be argued that it is impossible to particularize the bills which were stolen. If the argument be sound, it might cause a failure of justice by the merest technicality. For it easily might happen that there was no false pretense in the case, and that a man who had appropriated a large fund, some small part of which he had a right to take, would escape unless he could be held guilty of larceny. We think the answer to the argument is this. All the bills belonged to Teeling until the defandant exercised his right to appropriate ten dollars of them to his claim. He could make an appropriation only by selecting specific bills to that amount. Exceptions overruled. C. v. Lannan, 153 Mass. 287, 26 N. E. 858, 25 Am. St. Rep. 629, 11 L. R. A. 450, B. 521.

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(Ill. Sup. Ct., 1888.) Horse Taken to Feed. On indictment for the embezzlement and larceny of a horse, it was shown that defendant and another went to the house of S. (who had posted notice of the horse as an estray) and claimed him. S. refused to surrender the horse until they made proper proof. By arrangement, S. and wife took