
    Eustacia St. Valerie, plaintiff in error, vs. The People, defendants in error.
    The plaintiff in error and one D., were indicted for grand larceny. On the trial of the plaintiff in error, the evidence showed that she ordered some goods at a store, directing them to he sent to a certain place where they would be paid for. The goods were sent by a clerk. On his entering the house, D. took the goods, saying, “ these are the goods my sister ordered,” and went into the next room, saying she would look at them. After some time, the clerk discovered she had left the house. Some of the goods were afterwards found in another house, where the plaintiff in error lived. There was evidence that there was no intent to convey the property, when D. was permitted to take the goods for the purpose of looking at them. Meld that acquiring the possession in that manner was a mere fraud and trick, and was not the obtaining of goods under a purchase.
    The court charged that, in order to convict either or both of the prisoners, the jury must be satisfied that the prisoners had entered into a felonious plot to steal the goods; that, at the time when the plaintiff in error went to the store, ordered the goods, and said the bill would be settled at the house, she had the felonious intent to steal the goods; and that D. must have had a felonious intent to steal, when she obtained possession of the goods, in order that the prisoners could be convicted. Meld that the charge was just and fair, submitting,'as it did, the question of felonious intent to the jury.
    ERROR to the New York court of G-eneral Sessions. On February 8, 1872, the prisoner was, jointly with one Libby Dorris, indicted .for grand larceny. The prisoner visited the store of Charles Y. Peckham, 687 Broadway, and selected some hair goods worth $81, which she requested to be sent, with the bill, to 327 East Ninth street, where the bill would be paid. She gave the name of Mrs. Charles Matthew, and said that she wished the goods sent before six o’clock, as she and her sister, for whom some of the goods were desired, wished to go out in the evening. Mr. Peckham’s clerk took the goods to 327 East Ninth street, and was ushered into the parlor, where he saw Libby Dorris. Libby Dorris came up to him, and took the goods from his hand, saying, “these are the goods my sister ordered,” whereupon she went into an adjoining room, telling the clerk to sit while she looked at them. She soon after came in and got a match, and then went away from the house, and did not return. Search was vainly made for the goods. The boxes which had contained the goods were found empty on the floor of the room into which she had gone. Mrs. Spenk, who kept the house, testified that Libby Dorris, on the same day, a few hours previous, hired rooms of her under the name of Mrs. Matthew, and that she left the house without the knowledge of the witness. Some of the property was found a week or ten days afterwards, at a house in 22d street, where St. Valerie and Dorris both lived. Part of the property was found in the room of Dorris, and part in the room of St. Valerie. The prisoner did not account for its possession.
    The counsel for the prisoner insisted that there was no evidence to show that St. Valerie was guilty of larceny. But the court ruled that this was a question of fact for the jury; to which ruling the counsel for the prisoner excepted.
    The jury found the plaintiff in error guilty.
    
      Wm. F. Howe, for the plaintiff in error.
    I. The court erred in submitting the question to the jury as to whether the plaintiff in error was guilty of larceny. Goods were feloniously taken and removed in one’s absence, by his servant, and under his direction, and afterwards the principal was present and aided in secreting the goods. Held that this was not larceny in the principal, who was a mere accessory. (Norton v. The People, 8 Cowen 137.) In that case the prisoner was indicted, charged with stealing certain tubs, which were laid in the complaint to be the property of one Dickenson. On the trial, it appeared that the tubs had been taken on execution against the prisoner by a deputy sheriff. Dickenson took them into his custody at his own risk and deposited them in a neighbor’s barn, with his consent, who, by the prisoner’s direction, in his absence, secretly removed them from this barn. After-wards the prisoner was present, rendering aid in secreting them. The court, in its opinion, at page 138, says: “If a larceny was committed, the defendant was not .principal. He was accessory before, and probably after the fact, but that is not the offence charged.” So in this case, Madam St. Valerie may have been an accessory before and after the fact, but that is not the offence of which she was indicted, tried and convicted. Unless the plaintiff in error actually received the goods with the intent, at the time she received them, to appropriate them, she could not be convicted. There was not a particle of evidence that she ever received any of the goods. Her co-defendant, Miss Dorris, received the property, in the absence of the plaintiff in error, and as to Miss Dorris, the ruling of the city judge was correct. (Wilson v. The People, 39 N. Y. 459.)
    II. When goods have been obtained under a purchase, though by false and fraudulent pretences, the party obtaining them cannot be convicted of larceny. (Ross v. The People, 5 Hill, 294.) Obtaining goods by a fraudulent purchase, the vendor delivering them with an intent to part with the property of the goods, hi no case constitutes a larceny. (Mowrey v. Welsh, 8 Cowen, 238.) In Rex v. Harvey, (East's P. C. 669,) the prisoner agreed to give £8 for a horse, which was delivered to him on his promise to pay immediately. He mounted the horse and rode off. This was held no larceny. In Rex v. Atkinson, (2 East's P. C. 637,) the prisoner sent a third person to the prosecutor with a forged letter, purporting to be written by one Brood, requesting the loan of £3 for a few days. The money was sent and delivered to the prisoner. After conviction, all the judges held that this was no felony, on the ground that the property was intended to pass by the delivery of the, owner.
    
      
      B. K. Phelps, (district attorney,) for the people.
    I. The ruling of the judge was correct, especially in view of the charge to the jury, that, in order to convict St. Valerie, the jury must be satisfied beyond all reasonable doubt that at the time she ordered the hair to be sent to Ninth street, and stated that the bill would be paid there, she then had a felonious intent to steal the hair. When facts may or may not constitute larceny, depending upon intent of prisoner, the felonious intent is a question for the jury. (Ellis v. The People, 21 How. Pr. 356.)
    II. There is nothing in the position of the prisoner’s counsel that, the goods having been obtained by purchase, the party obtaining them could not be guilty of larceny. The terms of the contract between St. Valerie and Peckham were, cash on the delivery of the goods. Here there was no delivery, but at most a temporary parting with the possession of the hair to Libby Dorris, while she examined it. (Solomon Valentine’ s Case, 4 City Hall Rec. 33.)
    III. The verdict is sustained by the evidence. Libby Dorris was plainly guilty of the larceny. That being established, the possession of a portion of the goods by St. Valerie, within ten days after the larceny, was strong presumptive evidence against her. (Knickerbocker v. The People, 43 N. Y. 177.) This presumption of guilt was not rebutted by any explanation of her possession of the goods, or by any evidence of good character. The case might properly have gone, to the jury if there had been no other evidence connecting St. Valerie with the theft. But in view of the relations of the parties and other facts in the case, the jury were fairly warranted in believing that St. Valerie’s ordering of the goods was in execution of a common purpose between herself and Dorris to obtain felonious possession of the goods. (Rex v. Standley, Russ. & Ry. 305. King v. Moore, 1 Leach, 314.) The last is well known as the “ring-dropping” case, which was in many respects very similar to the present. The court referred it to the jury whether the transaction was not an artful and preconcerted scheme in the accused to obtain feloniously the property of the prosecutor.
   By the Court, Learned, J.

The plaintiff in error and one Dorris were indicted and convicted of grand larceny. The evidence showed that St. Valerie ordered some goods at a store, directing them to be sent to a certain place where they would be paid for. The goods were sent by a clerk. On his going into the house, the other prisoner, Dorris, took the goods, saying, “these are the goods my sister ordered.” She asked the clerk to take a seat, and went, herself, into the next room, saying she would look at the goods. After some time, the clerk discovered she had gone from the house. Some of the goods were afterwards found in another house, where St. Valerie lived. There were other circumstances sufficient to show that the whole pretended purchase was a fraud and trick.

The plaintiff in error claims that when goods have been obtained by a purchase, the party obtaining them cannot be convicted of larceny. (Ross v. The People, 5 Hill, 294.) But in the present case the possession of the goods was not obtained by purchase, Dorris obtained the possession from the clerk by pretending that she wished to look at them. This was a mere fraud and trick, and was not the obtaining of goods under a purchase. The ground on which the cases cited by the plaintiff in error are placed is, that when the property is intended to be conveyed, no larceny is committed. Wow there is evidence that there was no intent to convey the property when the clerk permitted Dorris to take the goods for the purpose of looking at them.

The court charged the jury that in order to convict either or both, they must be satisfied that the prisoners had entered into a felonious plot to steal these goods, and that at the time when St. Valerie went to the store, ordered the goods and said the bill would be settled at the house, she had the felonious intent to steal the goods. And in like manner that Dorris must have had a felonious intent to steal, when she obtained possession of the goods, in order that the prisoners could be convicted.

[First Department, General Term, at New York,

January 6, 1873.

Ingraham, Brady and Learned, Justices.]

This charge seems to have been just and fair. It left to intent the jury the question whether there was a felonious at the time when Dorris obtained possession of the goods, and whether the goods were not obtained by Dorris in pursuance of a previous felonious intent of both prisoners, and which St. Valerie had at the time of the ordering the goods.

The judgment should be affirmed.  