
    
      The State vs. Walter Levy Lindenthall.
    
    Where one obtains possession of goods by false representations, intending to concert them to his own use, and afterwards does convert them, entirely orpartially,— the owner not having parted with the right of property, — it is larceny.
    
      
      Before EvaNS, J. at Charleston, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ The prisoner was indicted for stealing a diamond brooch, a bracelet and a finger ring, worth in all several hundred dollars, the property ol Hayden & Gregg. He was a stranger, recently come to Charleston; he claimed to be a British subject, and made his appearance at the store of Hayden & Gregg in company with a' Mr. Lance, who was a clerk in the office of the British Consul.
    “Andrew Y. Gardner, a clerk in the store, said the prisoner came into the store and purchased a gold watch, at the price of $ 175, and left it to be regulated; he asked for the loan of one to wear in the mean time — a cheaper one, worth about $50, was loaned to him. On the Saturday after, he called again alone, and said he liked the watch he had and would keep it in place of the other, tie said he desired to make a lady a present, and requested he might be permitted to take several articles for her to choose from amongst them. He would return in half an hour, and return the other articles and pay for the watch and the articles which the lady selected. The clerk said that having seen him in the company of Mr. Lance, he did not hesitate to entrust him with the jewelry; this was before or about 9 o’clock. He did not return, and the clerk began to fear he had trusted too much to a stranger; he made a memorandum of the articles and the prices, and gave it to another clerk, that he might receive payment if the prisoner called. The witness then went about 11 o’clock to the rail road, to see if the prisoner attempted to go off. About the time the cars started, the prisoner arrived in a buggy, had his trunk taken off, but the cars started before he went on board ; he desired the agent to have them stopped, which was refused. He then got in the buggy and rode off, the witness followed him — he was soon out of sight; he then returned to the store, and enquired if the prisoner had returned; he was answered in the negative; he got another clerk (Spencer) to help him hunt the prisoner. He went down the street in pursuit, saw the prisoner get out of the buggy and go into Holmes’s store ; went in and found him examining a pair of pistols; demanded the jewelry : the prisoner said he had it, and if the witness would let him go, he would return it in half an hour, which was refused ; he then said if the witness would go with him he would give it to him. They got in the buggy and went to the market wharf, where he took from his trunk in the ferry house the brooch and bracelet, and delivered them. The prisoner said he would deliver the rest at the Consul’s office; he there gave up the watch and $20 in money, which he said was all he had. At Holmes’s store, the prisoner denied he had been at the rail road, but afterwards said he had been, but only intended to take a short ride into the country and return. He refused to tell where the ring was — witness heard the ring was pawned at Oakley’s, where he found it and recovered it by paying $45. This witness said, that some person told him that was only a breach of trust, and he took out a bail writ in assumpsit, for the price of the ring; he afterwards, by the advice of the Attorney General, prosecuted the prisoner for larceny. The prisoner said he had pawned the ring for $40, out of which he had paid his board, and the $20 was what was left — the price of the ring, I think, was 65 or 75 dollars.
    “ G. W. Spencer, another clerk, said prisoner came into store; saw him looking at some goods; he went out; this was between 9 and 10 o’clock. Gardner gave him a bill to settle with prisoner if he came ; Gardner went to the rail road; when he returned, inquired if the prisoner had been there, and told the witness to run down to Market-street. As he was going down, saw him coming from the Market wharf; he started in a gallop, and witness followed him to Holmes’s store. Gardner came up; heard the conversation between them — he denied that he had been to the rail road, but afterwards admitted he had, as stated by Gardner. Gardner said he would not leave him until he got the goods. Prisoner said if one of them would go with him to the Market wharf he would deliver them.
    “ W. 0. Oakley, a broker. He said the prisoner applied to him to loan him money to pay his board ; said he had a diamond ring which cost him twelve pounds in London, which he offered in pledge. Witness told him he was no judge of such articles, and advised him to go to Hayden & Gregg, tie said that was too far off, and he had not time ; afterwards witness advanced him $40 on the ring ; this was about 8 o’clock ; he said he would have plenty of money in a few days, and would call and redeem the ring.
    
      “ Some of the witnesses said that he, the prisoner, said he expected a large consignment of diamonds in a few days, which he would sell as cheap as they could be bought in London, and that he had rented a store in the city.
    
      “ The prisoner offered no evidence, and his defence was put on the ground that the facts proved did not make out the crime of larceny.
    “ I charged the jury, that if one obtain possession of goods on a contract of sale, though he may fraudulently intend never to pay for them, this was not larceny.
    “ 2. That in general, to constitute the crime, the absence of the owner’s consent to the possession was an essential ingredient.
    “ 3. But where the owner did not part from the right of property in the goods, and the possession was obtained by false representations, with the intent to convert them, this was larceny. And if, therefore, they believed, from the evidence, that there was no sale, and that the prisoner had by fraud and falsehood got possession, with the intent to convert them to his own use, this was larceny, and they should find him guilty, which they did.”
    The prisoner appealed and now moved for a new trial, on the following grounds:
    1st. Because the evidence was insufficient to prove a felonious intent on the part of the prisoner.
    2. Because it was not proved in evidence that the consent of the owner was wanting, which is of the essence of the offence of larceny.
    3. Because his 'Honor said in charging the jury, that although the owner of the chattels entrusted the prisoner with them, his subsequent disposal of them, and conversion to his own use, were sufficient to constitute the offence of larceny.
    Davega, Buist, for appellant,
    cited Ros. Cr. Ev. 586 ; 2 East, P. C. 555, 694; Hale P. C. 504; Russ, on Cr. 109 et seq.
    
    Hayne, Attorney General, contra.
   Curia, per O’Neall, J.

Notwithstanding the ingenious views presented by the attorneys for the prisoner, we think he was properly convicted.

The guilt of one accused of larceny depends upon intention. If such an one obtain the possession of goods by the consent of the owner for one purpose, such as hiring, or carrying, with intent to steal, and consummates that intention partially, or entirely, by converting the goods to his own use, he is beyond doubt guilty of larceny. This is abundantly shewn by Gorman’s case, 2 N. & McC. 90 ; Thurston’s case, 2 McM. 382.

In this case the facts very clearly shew, that the defendant possessed himself of the goods under a pretence to buy, when in fact he intended to steal.

In such a case, there is no possibility of the prisoner sheltering himself under a possession obtained by consent.

The motion is dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  