
    The People ex rel. Anton Lacina, Relator, v. Patrick Lavin, Patrolman, Etc., and Julius Mayer, Justice, Etc., Respondents.
    (Supreme Court, New York Special Term,
    June, 1903.)
    Crimes — Larceny — New York city physician charging for free antitoxin— Penal Code, § 528, subd. 2.
    The crime of larceny is committed, within Penal Code, § 528, subd. 2, by a New York city physician where he administers to the child of a woman, he knows to be able to pay for it, antitoxin delivered to him free of charge by the city but only for the treatment of a poor patient for whom payment for the same would be a hardship, and then charges the mother for the antitoxin and accepts payment for it of her, as he, the city’s agent in administering the antitoxin, thereby appropriated its antitoxin to his own use.
    Habeas Oobpus and certiorari proceedings.
    Facts sufficiently appear in the opinion.
    
      House, Grossman & Vorhaus, for relator.
    William Travers Jerome, district attorney, for respondents.
   Truax, J.

On the 15th day of June, 1903, writs of habeas corpus and certiorari were issued by this court directing the warden of' the city prison to produce the body of A. M. Lacina, and to show by what authority he detained the said Lacina, and also directing the above-named Julius M. Mayer, a justice of the Court of Special Sessions of the city of Hew York, to make full return to the said writ of certiorari, certifying to this court all proceedings had before him in reference to the detainer of the said Anton M. Lacina. The Hon. Julius M. Mayer has made his return, which shows that on the Í3th day of June, 1903, the defendant Lacina was brought before him, sitting as a magistrate, charged with the crime of petit larceny, and that after reading the complaint and after hearing the witnesses produced on behalf of the People to support the said charge, and believing that a crime had been committed by the said Lacina, he has held the said Lacina for trial in the Court of Special Sessions, and has admitted him to bail in the sum of $500, and, in default of the said bail, has committed him to the care of the warden of the city prison. The city of Hew York, through its department of health, for several years has been and still is distributing free of charge to poor people a drug known as antitoxin, which drug is used both as a preventive against and a cure for the disease of diphtheria. The department of health consigns this antitoxin, which is put up in small phials, to certain druggists in .the city, and authorizes the said druggists, upon the presentation of the certificate hereinafter mentioned by any physician of. the city, to deliver to the said physician, free of charge, for- the use of a poor patient, one or more phials of the said antitoxin. One of these druggists to whom such a consignment was made by the department of health, acting for the city, is Charles E. Zinekgraf, at the corner of Sixty-seventh street and Third avenue, city and county of Hew York. On the 9th day of June, 1902, the defendant Lacina, who is a practicing physician in this city, was called in to attend a child of one Emma Horner, of this city. The defendant diagnosed the case as one of diphtheria. He informed Mrs. Horner that it would he necessary to inject antitoxin into the child; that he would have to purchase the antitoxin; that it would cost $3, and Mrs. Horner agreed to pay the sum. of $3 for the antitoxin. It is admitted that the defendant then went to the said Zinckgraf, the druggist aforementioned, and obtained from him three phials of antitoxin, which were at that time the property of the city of Sew York, and which three phials are the phials of antitoxin which was injected into the body of the child of the said Emma Horner. The evidence shows that for this antitoxin the defendant received the sum of $9. This antitoxin was obtained by the doctor without charge, upon the presentation of a certificate in the following form, viz.:

Druggist' to Retain this Stub.
I hereby certify that this antitoxin, delivered to me free of charge, is for the treatment of a poor patient, to whom payment for the same would be a hardship.
A. M. Lacina, M. D.,
Att. Phys.
Address, 346 East 72d St.
Department of Health, City of Sew York.
So.............
Druggist:
Date... .June 9,1902. Zinckgraf,
Address, 67th St. and 3d Ave. Physician:
Same... A. M. Lacina, Address... .346 East 72d St. Patient:
Same.. .Martha Horner, Address... .404 East 72d St.
Antitoxin delivered.
So. of Vials. Grade. Opus.
one 6a 2-5 one 6 33 one 6 42

The defendant was the agent of the city to administer the antitoxin to Martha Horner free of charge if she was unable to pay for it, and he was the agent of the city to administer that antitoxin only in that event; but he administered it to her knowing that she was able to pay for it, and, therefore, in so administering the antitoxin contrary to the conditions upon which it was delivered to him and contrary to the conditions under which he was authorized to administer it, he deviated from the terms of his agency and did so to his own pecuniary advantage. In other words, the defendant, by administering this antitoxin, delivered to him for the purpose of being used on a patient unable to pay for the same when he knew that the patient was able to pay for the same, and by accepting payment for the same appropriated the antitoxin to his own use and rendered himself amenable to subdivision 2, section 528, of the Penal Code of the State of Hew York.

The writs are dismissed.

Writs dismissed.  