
    The Justices of the Court of Special Sessions of the County of New York, Appellants, v. The People, ex rel. Henry Henderson, Respondent.
    On the trial of an indictment for larceny, it appeared that the prisoner H., who was a saloon-keeper, received from B. a $20 gold piece out of which to take pay for twenty-five cents’ worth of liquor; not being able to make change, H. was requested by B. to go out and get the change; he went out and lost the money gambling. Held, that H. was properly convicted of the crime charged.
    
      The People, ex rel. Henderson, v. The Justices (26 Hun, 537), reversed.
    
      Reg. v. Thomas (9 C. & P. 741), disapproved.
    (Argued June 22, 1882;
    decided October 10, 1882.)
    
      Error to the General Term of the Supreme Court, in the first judicial department, to review order made March 15,1882, which reversed a judgment of Court of Special Sessions of the Peace in and for the city and county of Hew York, entered upon a verdict convicting the said Henry Henderson of the crime of larceny. (Reported below, 26 Hun, 537.)
    The evidence on the part of the prosecution showed that one Robertson went into the saloon kept by the prisoner and procured some lager, the price for which was twenty-five cents; he handed the prisoner a $20 gold piece, and he being unable to change it, was requested by Robertson to go out and get the change. The prisoner went out and did not return; he lost the money gambling.
    
      John Vincent for appellant.
    As the relator took the $20 gold coin a/nimo fwrandi the prisoner was properly convicted. (Hildebrand v. The People, 56 N. Y. 394; Loomis v. The People, 67 id. 326; 1 Hawkins’ Pleas of the Crown, 210; 2 Russell on Crimes, 21; Smith v. The People, 53 N. Y. 111; Ann Atkinson's Case, Cas. Cro. Law, 247.)
    
      William F. Kintzing for respondent.
    The conviction was wrong, because the complainant voluntarily parted with the possession not only, but with the property, and did not expect a return of the identical property. (2 East’s P. C., § 116, chap. 16; 1 Hale’s P. C. 509; Hildebrand v. People, 56 N. Y. 398; Smith v. People, 53 id. 111; McDonald v. People, 43 id. 61; Kelly v. People, 13 N. Y. Sup. Ct. 509; Wolfsteen v. People, id. 121; Weiyman v. People, 11 id. 511; Rex v. Hunt, 8 Cox’s Cr. Cas. 405; Lewer v. Commonwealth, 15 S. & R. 93; Roscoe’s Cr. Ev. [7th ed.] 626-636; Wharton’s Am. Cr. Law [5th rev. ed.], 1780; Comm. v. James, 2 B. & H. Ldg. Cr. Cas. 2 and 4; 2 East’s P. C. 668; Blunt v. Comm., 4 Leigh, 689; Reg. v. Thomas, 9 C. & P. 741; Reg. v. Jackson, 1 Moody’s C. C. 119; Mowery v. Walsh, 8 Cow. 228; Reg. v. Barnes, 2 Den. C. C. 59; Reg. v. Adams, R. & R. C. C. 225; Reg. v. Nicholson, 2 East’s P. C. 669; 2 Russell on Crimes, 35 [6th ed.]; Archibald’s Cr. Pl. 895; Wilson v. People, 39 N. Y. 460; People v. Anderson, 14 Johns. 294; People v. Abrams, 13 N. Y. Sup. Ct. 491; People v. Call, 1 Denio, 120; 13 Coke’s Inst. 107; 1 Leach, 411; Rex v. Leigh, 2 East’s P. C. 553; Rankin’s Case, Russ. & Ryan, 44; 1 Hale’s P. C. 504; 1 Hawkins’ P. C., chap. 33, § 2; 4 Black. Com. 232; Roscoe’s Cr. Ev. 553; Barb. Cr. Law, 153; Archibald’s Cr. Pl. 186-188; 2 Starkie on Evidence, 606.) There was no trespass in taking the gold piece, and without which there can be no larceny. (McDonald v. People, 43 N. Y. 561; Hildebrand v. People, 56 id. 396; 1 Hawkins’ P. C., § 1, p. 208; 2 Russell on Crimes, 35 [6th ed.]; Reg. v. Middleton, 12 Cox’s Cr. Cas. 269; Reg. v. Thomas, 9 C. & P. 741; 30 Eng. Com. Law Rep. 314; 56 N. Y. 396-397; Reg. v. McKale, 11 Cox’s Cr. Cas. 34.)
   Tracy, J.

The $20 gold coin was intrusted to the relator for the single and specific purpose of having it changed into other money, to be returned to the prosecutor. The relator had no property or interest in the coin, and the prosecutor never intended to part with his property' therein. . The relator left his restaurant with the coin under the pretense of obtaining change, and immediately gambled it away and did not return. These facts warranted the jury in finding that, when he left the presence of the prosecutor, he took the coin with him with the intent to steal it. This, within all the authorities, except the one hereinafter referred to, justified his conviction for larceny. (Hildebrand v. The People, 56 N. Y. 394; 15 Am. Rep. 435. Loomis et al. v. The People, 67 N. Y. 326; 23 Am. Rep. 123; Hawkins’ Pleas of the Crown, vol. 1, p. 210; Russell on Crimes, vol. 2, p. 21.) In Russell on Crimes and in Hawkins’ Pleas of the Crown the rule is stated" as follows: “ So, also, if a watchmaker steal a watch intrusted to him to clean, or if one steal clothes delivered to him for the purpose of being washed, or guineas delivered for the purpose of being changed into half guineas, or a watch delivered for the purpose of being repaired, in all these circumstances the goods taken have been thought to remain in possession of the proprietor, and the taking of them away held to be felony.” Hawkins cites, to each of these cases, an authority on which it rests. One of the cases so cited is that of Ann Atkinson, in which it was held that if one stole guineas delivered for the purpose of being changed into half guineas, it was larceny. (Cas. Cro. Law, 2477.) The case of Reg. v. Thomas is a nisi prius case, reported in 9 C. & P. 741, where it was held by Coleridge, J., that “the prosecutor, having permitted the sovereign to be taken away for change, could never have expected to receive back that specific coin. He has, therefore, divested himself at the time of the entire possession of the sovereign, consequently I think there was not a sufficient trespass to constitute larceny.”

The learned presiding justice, who delivered the opinion of the General Term in this case, fell into an error in supposing that the doctrine of the case of Reg. v. Thomas had been adopted by this court as the law of this State. In the case of Hildebrand v. The People (56 N. Y. 394-397; 15 Am. Rep. 435), where this court is supposed to have adopted the rule laid down in the case of Reg. v. Thomas, the plaintiff had been convicted of stealing a $50 bill, handed him to take out ten cents in payment for a glass of soda. The prisoner put down a few coppers upon the counter, and, when asked for the change, took the prosecutor by the neck and shoved him out of doors and kept the money. The prisoner was convicted, and the conviction was affirmed by this court. The case of Reg. v. Thomas was cited and relied upon by the prisoner. The facts of the two cases differed, and, after criticizing the case of Reg. v. Thomas as a nisi prims case, and not authoritative for that reason, the court pointed out the difference between the facts of that case and the facts of the case then being considered, without overruling or affirming the doctrine of Reg. v. Thomas.

In Loomis et al. v. The People (67 N. Y. 329; 23 Am. Rep. 123) the case of Reg. v. Thomas was again referred to, and this court there declared that the weight of authority was decidedly opposed to the doctrine of that case, and again affirmed a conviction, in which that case was relied upon as an authority for reversal. The decisions of this court have been uniformly against the doctrine of Reg. v. Thomas.

In The People v. McDonald (43 N. Y. 61), this court held that if money or property is delivered by the owner to a person for mere custody or for some specified purpose, the legal possession remains in the owner, and the criminal conversion of it by the custodian is larceny.”

, Again, in Smith v. The People (53 N. Y. 111; 13 Am. Rep. 414), it was said by Allen, J., that when the delivery of goods is made for a single and specific purpose, the possession is still supposed to reside, not parted with, in the first proprietor.”

The rule of Reg. v. Thomas was never adopted by this court, is not good law, and shonld be disregarded.

Judgment of the General' Term should be reversed and the judgment of the Special Sessions affirmed.

All concur.

Judgment accordingly.  