
    *Walker v. Commonwealth.
    December, 1837.
    Larceny — What Constitutes — Case at Bar. — A person. employed by a mercantile firm as a salesman in their store, having full control over the goods in the store room, and the money in the cash drawer,, for the purposes of his employment, abstracts a part of the goods and money, with a fraudulent intent to convert the same to his own use: Held, he is guilty of larceny.
    Petition for writ of error to judgment of’ circuit superiour court of law and chancery for Pittsylvania county.
    James Walker, the petitioner,
    was indicted in the said circuit court at May term 1837, for the larceny of divers goods, coin and bank notes, the property of the mercantile firm of Jones, Anderson & Company ; was tried, convicted, and sentenced to two years imprisonment in the penitentiary. After the verdict was rendered, he moved for a new trial, on the ground that the verdict was contrary to the evidence; and the court having overruled the motion, he excepted. The bill of exceptions state the facts proved at the trial, as follows:
    The prisoner was a salesman and storekeeper of the mercantile firm mentioned in the indictment, employed by them for that purpose, and lived in the storehouse. He had free access to the goods of the firm for the purpose aforesaid ; he made the charged and entries in the daybook, for the goods sold by him on credit, and when he sold goods for cash, he received the money therefor. He had free access to the cash drawer, which was in the store room, and never kept locked from him; and he deposited therein moneys received by him for the firm, and took out moneys therefrom, for the use of the firm, in making change or otherwise, when he deemed it necessary. He had the same control over the cash drawer, for the purposes of the firm, as over the goods of said firm. The goods and money mentioned in the indictment were found in the private trunk of the prisoner, *in the store, and were abstracted by him from the shelves and drawer of the store room, with an intention fraudulently to convert them to his own use, and without the knowledge and consent of the firm, or any member thereof. The prisoner had possession of the goods and cash aforesaid, for the purposes aforesaid, when none of the firm were present; but generally, though not always, some one of the firm was in and about the store, and gave a general superintendence of the affairs of the partnership. The bank notes and goods mentioned in the indictment were proved to be the property' of the firm; the notes were also proved to be genuine, and the goods to be of the value stated in the indictment. And these were certified to be all the facts proved on the trial.
    
      
       Larceny — What Constitutes. — In Richards v. Com... 13 Gratt. 805, it is said: “Larceny, at common law, is the taking and carrying away of the personal goods of another, against his will or without his consent, and with a felonious intent. There must be a taking or severance of the goods from the possession of the owner on the ground that larceny includes a trespass. If there be no trespass in taking goods, there can be no larceny in carrying them away. 2 Russ. 95; 1 Hawk. c. 33, § 2. But the possession of the owner may be actual or constructive. If it appear that although there is a delivery by the owner, yet the legal possession still remains exclusively in him, larceny may be committed exactly as if no such delivery had been made. Thus, if a person to whom goods are delivered has the bare charge, custody or use of them, and the legal possession remains in the owner, such person may commit, larceny by a fraudulent conversion of the goods to his own use. 2 Russ. 106; 1 Hale 506; 1 Hawk. c. 33, § 6; Arch. Grim. PI. edition of 1846, p. 192. The most familiar application of the rule is, to the case of servants, whose possession of their master’s goods, by his delivery, or permission is the possession of the master himself; 2 Russ. 197; 2 Bast. P. C. 564, 682, 683; Walker v. Commonwealth, 8 Leiqli 743; and to the-case of a guest at an inn, who may be guilty of larceny in taking a piece of plate or other thing set before him for his accommodation; for he hath not. the possession delivered to him, but merely the use. 2 Russ. 107; Arch. 192,1 Hale 506; 1 Hawk, c. 33, § 1.”’
      See further, monographic note on “Larceny” appended to Johnson v. Com., 24 Gratt. 555.
    
   PER CURIAM —

Writ of error denied.  