
    Supreme Court-General Term-Fifth Department.
    June 23, 1893.
    PEOPLE v. CHARLES H. LAURENCE.
    (53 St. Rep. 536; 70 Hun, 80.)
    Evidence—Larceny.
    Where the defendant obtains, and the owner permits him to take possession of, property for a special purpose, and such pretense is false and made with intention at the time of appropriating the property to his own use, it constitutes larceny.
    ■'Appeal from a judgment of the Niagara county court of sessions, convicting the defendant of the crime of grand larceny in the first degree.
    Richard Crowley, for appellant.
    P. F. King, dist. atty., for respondents.
   LEWIS, J.

The court of appeals has decided that the indictment charges the defendant with committing the crime of ■larceny.

There was evidence tending to show that the Lockport Street Railroad Company was an incorporated company, that it owned the usual equipment of a street railroad, consisting of iron rails, street cars, etc. The company had operated the road for three years, and up to the 1st day of January, 1891, when the business, not having proved to be profitable, was suspended. The cars were operated by horse power. In the month of July thereafter the defendant entered into negotiations with the company with the avowed purpose of purchasing the franchise and the plant and converting it into an electric road. He claimed to represent a western construction company by the name of the United States Railway Equipment- & Construction Company. The negotiations resulted in the execution of a written ■contract, bearing date July 27, 1891. It was executed on the part of the construction company by the defendant, as general manager thereof, and by E. M. Ashley and John Hodge for the Lockport 'Company—Ashley and Hodge being at the time the owners of all the stock of the railroad company. The contract provided that the construction company should proceed within thirty days to effect the changes of the system of operating the road, and complete the sarnie by the 1st day of January, 1892.

It further provided for the sale and transfer of the stock of the railroad company to the construction company upon the payment by the latter for the stock in a manner stated in the contract. It further provided that Hodge and Ashley should turn over to the construction company, at the time of the delivery of the stock, all the property of the company, consisting of its franchise, railway track, eight street cars, etc. The property was not to be delivered to the construction company until it was paid for as provided for in the agreement. From the time of executing the contract, the evidence tends to show that the def endant devoted his time and talents to obtaining by various devices possession of the property of the railway company without paying anything for it. Undér the pretense that it would be necessary to exchange the rails for heavier ones, the defendant secured possession of them, and sold them for $2,800 or $2,900, and appropriated the principal part, if not all of the proceeds of the sale to his own use. He sold the rails at considerably less than their market value. He obtained possession of the two cars he is charged in the indictment with stealing by representing to Messrs. Ashley and Hodge that he wished to send them to Buffalo to have them there transformed into electric c-ars, agreeing that when they were so changed he would return them to the possession of the company. He shipped the cars to Buffalo, and instead of arranging to have them changed, as stated, he at once sold them for $450, and shipped them to a firm in Marion," Ind., and appropriated the proceeds of the sale to Ms own use. And this was done without the knowledge or consent of the owner, and when inquired of by Messrs. Hodge and Ashley as to what had become of the. cars, he declined to give any information concerning them except to say that they were all right. He contracted to sell the rest of the cars, six in number, to a Mr. Breekenridge of New York city, receiving from him in payment therefor his note for the sum of $500. This trade fell through because the defendant was not able to, obtain possession of the cars so as to deliver them to the purchaser.

Suffice it to say, without rehearsing the evidence farther, the only inference which can he drawnfrom the facts as disclosed by the evidence is that the defendant got possession of the oars which he is charged in the indictment with stealing, for a special purpose, to wit, to have them changed into electric cars, as stated. The company allowed him to take possesssion of them for that purpose only. The pretenses were false, and were made with the intention, at the time, of appropriating the cal's to his own use. The defendant probably from the very commencement of his negotiations intended, by some fraudulent device or other, to cheat the company out of its property; but if that was not Ms original intention, the evidence justified the jury in believing that he had that intention at the time he obtained possession of the cars. The evidence tended very strongly to prove the def endant guilty of the crime charged in the indictment. We find nothing in the defendant’s exceptions calling for a reversal of the conviction.

The judgment and conviction of the Niagara county sessions appealed from should be affirmed, and the case remitted to that court to proceed thereon.

DWIGHT, P. J., MACOMBER and HAIGHT, JJ., concur.  