
    People v. Pollock.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1889.)
    1. Larceny—Instructions—Criminal Intent.
    Where defendant was indicted for larceny under Pen. Code If. Y. § 528, providing that whoever “with intent to deprive or defraud” the true owner of his property shall be guilty of larceny, it was error to refuse to charge that in order to con-, viot the jury must believe that there was a criminal intent.
    2. Same—Evidence oe Character.
    It was error to charge that evidence of good character should he considered, when there was a question as to whether defendant or some other party committed the offense; such evidence is competent to create the doubt.
    3. Same—Object of Statute.
    A charge reciting that the statute under which defendant was tried was passed, after the Tweed trial because the law was insufficient, etc.,- was prejudicial to defendant.
    4. Same—Evidence—Relation of Parties.
    In such case, where defendant was a hanker, and the complaining witness had long been his customer, and it was important to know whether the relation of defendant'to him was that of agent or debtor, all the circumstances surrounding the case were competent to show the intent.
    5. Same—Mingling with Defendant’s Funds.
    In such a case it was not conclusive evidence of guilt that defendant mixed the money deposited with him with his own funds, but the people must also show that it was so mixed, or was sometimes used, with intent to deprive the owner of it.
    
      Appeal from court of sessions, Orange county.
    John M. Pollock and A. V. Wiltsie, who had been engaged in the banking business, were indicted for larceny. Defendant asked the court to charge-that to convict the jury must believe that there was a criminal intent, which the court refused to do. The judge charged that the statute under which defendant was tried was passed after the Tweed Case, which showed the need of a punishment for persons taking in money in a fiduciary capacity, and what was formerly embezzlement was now larceny. The judge also charged that evidence of good character should be considered when there was a doubt whether the party charged or some other party committed the offense. Pollock was found guilty, and appeals.
    Argued before Barnard, P. J., and Pratt and Dykman, JJ.
    
      George H. Decker and McCroskery & Seeger, for appellant. Russel Headley, Dist. Atty., for the People.
   Pratt, J.

The statute (section 528, Pen. Code) under which the defendant was indicted and convicted provides that any person who, with the “intent to deprive or defraud the true owner of his property or of the use and benefit thereof, * * * or appropriates to his own use any money,. * * * is guilty of larceny, ” changes the law as it formerly existed in that it makes what was formerly embezzlement and obtaining of money or goods under false pretenses larceny, but it has not changed the methods of proof of these respective offenses. It simply classes these respective offenses as larceny, and requires the same proof of criminal intent to make out a case as was required before the Penal Code was passed. The section, it will be observed, begins with the statement that “a person who, with the intent to deprive or defraud the true owner of his property,” etc., does the acts specified, shall be-guilty of larceny. To constitute guilt, there must be evidence of intent to-deprive or defraud the owner, and the jury must find such criminal intent as a fact upon the evidence before a conviction can be had. The jury had a clear right to pass directly upon the question of intent, and by taking that question from the jury we think the court committed an error. It appears-that the defendant was a banker, and the complainant had long been his customer, and knew that the money was on deposit for his credit, and it became-important to determine whether the relation at the time of the failure of the defendant’s firm was that of agent or debtor; it was certainly competent upon the question of intent to show and permit the jury to know all the surrounding circumstances of the case. That part of the charge which referred towliat was termed the “Tweed Statute” also was calculated to prejudice the case for defendant. It is true that the evidence is sufficient to sustain the verdict if the jury disbelieved the defendant and believed the evidence of Hamilton, but the defendant was entitled to have the issue of an intent directly passed upon by the jury. It was not conclusive evidence, under all the circumstances, to show that defendant merely mixed the money with his own funds; but it was incumbent on the people to satisfy the jury that it was so-mixed with the intent, or was at some time used with intent, to deprive the owner thereof. We also think the charge was erroneous upon the question relating to the good character of the defendant. Such evidence is competent to be submitted to a jury for the purpose of raising doubt. It is not essential that a case must be doubtful before such evidence can be considered. Upon the whole case we think there were errors which worked to the prejudice of the defendant sufficient to warrant a reversal of the judgment, and the ordering of a new trial. All concur.  