
    *Vaughn v. The Commonwealth.
    October Term, 1853,
    Richmond.
    1. Bonds — Obligor—Larceny.—The obligor in a bond may commit larceny in taking it.
    2. Same — Same—Same — Case at Bar. — K holding a bond executed by V to J, and supposing from what had passed between them before, that V then intended to pay it off, took it out of his pocket book and held it in his left hand whilst with his right hand he was searching in his pocket for a pencil to calculate the interest. Whilst K was thus occupied V took the bond out of his hand without violence. K supposing that V wished to look at it, and not objecting to his taking it. Upon getting possession of the bond V immediately rolled it up, put it into his mouth and chewed it, and then threw it to one side, K supposing he had swallowed it. V supposed at the time that the bond was still the property of ,1 who he believed had treated him badly and against whom he was much incensed. Herd: That under the circumstances this taking of the bond was larceny.
    This was an indictment for the larceny of a bond in the Circuit court of Page county againt Thompson Vaughn. The jury found the prisoner guilty, and ascertained the term of his imprisonment in the penitentiary at one year; and the judgment was according to the verdict.
    After the verdict was rendered the prisoner moved for a new trial on the grounds that the verdict was against the law and contrary to the evidence: But the court overruled the motion, and he excepted; and spread the facts upon the record: and obtained a writ of error from this court.
    It appears that the prisoner executed to Isaac S. Jones a bond bearing date the 1st of March 1852 for twenty-five dollars; and that there was a credit upon this bond of five dollars as of the date of the 22d of March 1852. That this bond was given for the purchase money of land, and that the prisoner complained *of Jones as to some matter growing out of that purchase; though he admitted the existence of the debt due by the bond. About the 1st of September 1852 Reuben B. Bell, as the agent of Jones, sold the bond to Henrj7 A. Keyser, an acting constable in the county of Page, and on the 14th of September Keyser informed the prisoner that he held the bond, but did not apprise him that it was Keyser’s property. The prisoner said it was hard for him to pay his brother’s debt, and asked Keyser if he was coming to the Big Spring meeting, which was to be held on the fourth Sunday of that month; if he was, he should bring the bond there, and the prisoner would take it up. Keyser supposed prisoner meant thereby that he would pay the mone37 there.
    Keyser and the prisoner met at the appointed time and place; and about the time the congregation were leaving the church, the prisoner beckoned to Keyser to come to him: They went to a school-house about one hundred yards distant from the church, and there the prisoner asked Keyser if he had the bond with him: He replied affirmatively ; and they then slipped behind the school-house, and Keyser took the bond out of his pocket book, and whilst holding it in 'his left hand, and feeling for a pencil with his right hand with a view to calculate the interest on the bond, the prisoner asked him twice whether he was certain that was the bond; and he replying yes, the prisoner taking hold of the bond as Keyser supposed, for the purpose of examining it and paying the money, and using as much force as was necessary, instantly rolled it up and put it in his mouth and chewed it, and as Keyser supposed swallowed it: This however was not the fact; but after chewing it he threw it away ; and upon his stating this fact after his arrest, the bond was found a few days after the occurence at or under the school-house before mentioned.
    *After the prisoner had taken the bond and put it in his mouth, he said to Keyser, Now tell Mr. Jones I owe him nothing, and he has nothing to show that I do owe him anything. No violence was used by the prisoner in getting possession of the bond, nor did Keyser resist the prisoner’s taking it. Prisoner spoke of having a resurvey of the land he bought of Jones, and would do nothing until Mr. Jones had done him justice. The prisoner and Keyser then parted; and Keyser meeting with Bell, at the church, it was agreed they would send after the prisoner and request him to come back and settle the matter. This was accordingly done, and the messenger, who was a relation of the prisoner, urged him to return and settle with Keyser; but the prisoner was highly excited and refused to return; and in reply to a suggestion of the messenger that he had done the act without thinking, the prisoner said, No, he had been thinking of it for some time; that he had been badly treated by Isaac S. Jones and Madison Vaughn, and he did not intend to pay them, any more. This conversation occupied some ten or fifteen minutes.
    Alex. Anderson, for the prisoner.
    The Attorney General, for the commonwealth.
    
      
      Burglary— What Constitutes — Construction. — In State v. Shores, 31 W. Va. 491.1 S. Ifl. Rep. 413, upon a trial for burglary it appeared that three persons, much intoxicated went into a store and called for cider which they drank and paid for. they went out and came in again and called for more, which was poured out to them and delivered to them in glasses on the counter and a pistol was discharged in the house, and they all went out leaving the cider in the glasses on the counter; when they returned the store was lighted, and they pushed against the door which was locked and it broke open, they went in, followed by other persons against whom there was no charge or snspicion, and there in the light and in the presence of other persons drank the cider: the refusal of an instruction that tells the jnry under these circumstances that if they in good faith believed they had a right to drink the cider, that it was theirs, that they did not have the intent to steal the same, is error. The court basing its ruling on the dissenting opinion of Monccre, J.. in YauuTm v. Oom., 10 (Iratt. 704, where he said: “Thatproperty which is taken openly, in the presence of the owner, affords a strong presumption that it is not taken feloniously. This presumption may be repelled by evidence; but strong evidence should be required for that purpose, when the property taken is the party’s own bond.”
      See monographic note on “Bonds” appended to Ward v. Churn. 18 G-ratt. 801.
    
   SAMUELS, J.

The statute, Code of 1849, p. 729, § 15, 16, places larceny of papers of value on the same footing as larceny of any other subject. The rules of law and evidence applicable to the offence of larceny generally, must also apply in a case of such larceny under the statute.

Several questions were discussed by the plaintiff’s counsel, in his printed argument, growing out of various errors alleged to have been committed in the mode of procuring the evidence, previous to the finding of the indictment on which the conviction was *had. I perceive no error in the action of the court, in these respects; the questions, however, do not properly present themselves in the record, and should, therefore, be no further considered.

The only question before the court is that presented by the motion for a new trial; that is, Whether the jury were justified by the evidence, in finding the plaintiff guilty of feloniously stealing, taking and carrying away the bond, as in the indictment alleged?' These ingredients are of the essence of larceny charged. If they, or anyone of them, do not exist, the offence is incomplete.

No question is or could be made in regard to the identity of the bond, or Keyser’s title thereto.

As to the felonious intent, that is the purpose of converting to the use of the party taking, lucri causa. If it be conceded, as it must be, that a man may commit larceny of a bond by which he stands bound for the payment of money to another, the only advantage or profit which can accrue to the party so committing larceny, is in withholding, concealing or destroying the evidence of his debt. If he steal a bond executed by another, he may possibly receive the money due thereon; of the bond binding himself, he can make no such use. The only advantage which Vaughn could promise to himself, was in the concealment or destruction of the bond. The evidence shows clearly, that he intended to secure this advantage to himself. The jury were therefore justified in finding the felonious intent, the animus furandi. It has been said that the offence is incomplete, because the money was still due, notwithstanding the concealment of the bond, and that it was subsequently produced; that the conversion to Vaughn’s use was therefore incomplete. This argument would apply in every case in which stolen property is reclaimed by ' the owner, before it is consumed by use; *the title of the owner of goods and chattels continues notwithstanding a larceny thereof; yet it has never been held that the offence is less complete after they are reclaimed than if they had been used and consumed by the thief.

The “taking,” another essential part of the offence, is said not to have occurred in this case. It is said that every larceny must contain within itself a trespass in the act of taking; that there can be no trespass against property not in the owner’s possession ; that in this case the possession of the bond was not in Keyser the owner, but was in Vaughn, who had acquired it without force or violence, and with Keyser’s assent. If all this be conceded, the question recurs. What is possession by the owner within the meaning of the, law against larceny? It has been held that goods and money in a store under the control of a salesman who has no authority or interest about them but as salesman, are still in possession of the owner; and if such salesman animo furandi convert them to his own use, he is guilty of such “taking,” of such trespass, as is of the essence of larceny. So if a shopkeeper exhibit his wares to one who takes them into his hands under pretext of inspecting or buying them, but who forthwith converts them to his own use animo furandi, the “taking” or trespass against the property is such as enters into the offence. If by fraud or device the owner (not intending to part with his right), be induced to place his property in the hands of another, who acquires possession with a felonious intent to convert it to his own use, the “taking” and trespass are such as are required to complete the offence of larceny. See Starkie v. The Commonwealth, 7 Leigh 752.

In this case the bond was permitted by Keyser to pass into Vaughn’s hands under the belief that it was to be immediately paid; to let him see that it was the bond he proposed to pay: Keyser had no ^intention of delivering the bond and waiting to a future time for payment; and the device or trick by which Vaughn got the bond into his own hands, is equivalent to, if not identical with, a trespass against the possession. See the case above cited.

The “carrying away” necessary to complete the offence of larceny, may consist in a very slight removal of the stolen property; the removal to a much shorter distance than is shown in this case would have completed the offence.

The evidence tended strongly to prove every material allegation in the indictment. The plaintiff failed to prove that the bond was not justly due, or any other fact which would give him any pretext of right to act as he did. If under a mistaken opinion of right the plaintiff had acted in the manner disclosed by the evidence, he might have been held guilty of trespass merely. In the absence of all proof in extenuation of his offence, the jury were justified in rendering the verdict complained of.

I am of opinion to. affirm the judgment.

MONCURE, J.

My first impression of this case was strongly against the commonwealth. It has been weakened by the argument of the Attorney General, and the views of my brethren embodied in the opinion of Judge Samuels. But it has not been removed. The case is an extraordinary one. A man has been convicted of stealing his own bond; the act being done openly, in the presence, and with the knowledge of the assignee of the bond.

When a man is charged with stealing the bond of another, we can at once understand the object he probably had in view ; that is, to collect the bond and appropriate the proceeds to his own use. But when he is charged with stealing his own bond, he cannot have had this object in view, and we must find another in *'the circumstances of the case before we can admit that he may be guilty of the offence.

I do not doubt but that a man may be guilty of stealing his own bond; as a man may be guilty of stealing his own goods, for the purpose of charging a bailee for their value. A man would be guilty of stealing his own bond, if he were to take it from the desk of his deceased creditor for the fraudulent purpose of preventing the discovery of the existence of the debt by the executor, and of avoiding its payment. Other circumstances might be sufficient to show a felonious intention in such a case.

But it is difficult to conceive how such an intention can exist when the bond is openly taken from the possession of the holder. It is true that secrecy, though a usual, is not a necessary, attendant of larceny; which may be, and sometimes is, committed openly. That property is taken openly, in the presence of the owner, affords a strong presumption that it is not taken feloniously. This presumption may be repelled by evidence ; but strong evidence should be required for that purpose, when the property taken is the party’s own bond.

What benefit can be derived from the act, is a question which at once presents itself; and cannot easily be answered. The existence of the debt, and the fact that the bond was taken by the obligor, are known and can be proved; and the payment of the money can as well be enforced without the bond as with it.

It may be said that the obligor may not know that by law a debt can be recovered even though the bond given for its payment be destroyed. But we cannot fairly attribute such ignorance to him, and it would be contrary to legal principles to do so. A man is presumed to know the law, even in a case in which the presumption would be a legal element of his guilt: Surely he ought to be presumed to know it, *in a case in which the presumption would make him innocent.

It is not sufficient if the party in taking the bond merely intend to provoke the owner; or to throw difficulty and delay in the way of its collection; or to obtain what he considers justice of the obligee. No benefit of that kind is such gain as the law contemplates in the definition of larceny. The party must intend to convert the subject itself to his own use, and not to use it temporarily for an ulterior object. If a man take a horse from another’s stable for the purpose of riding it, but not of converting it to his absolute use, he will not be guilty of larceny, though he leave the horse where the owner ma.y never get it again. The mode of converting a bond to the obligor’s own use is to prevent its enforcement against him; and if he do not take it fraudulently for that purpose, he is not guilty of larceny.

The circumstances of this case support the presumption, arising from the nature of the subject and the open manner in which it was taken, that the act was not done fel-oniously. The bond had been given for part of the purchase money of a tract of land. There had .been two controversies between the parties; one about the boundaries of the land, and the other about some wheat left growing on the land at the time of the sale, which the vendor had depastured contrary, as the vendee supposed, to his rights. It was proved that the former had been settled, though the vendee was evidently not satisfied with the settlement: The latter was subsisting at the time of the alleged larceny. When the vendee took the bond, he told the assignee he would have a resurvey of the land, and would do nothing until the vendor had done him justice. This, with the other circumstances, strongly tends to show that the act was done under a sense of supposed injustice, and the influence of feelings of irritation and resentment, rather than with a felonious *intention. The observation made at the time of taking the bond, “Tell Mr. Jones I owe him nothing, and he has nothing to show that I do owe him anything,” may tend to show a felonious intention, but is not sufficient to counteract the other circumstances. It may be accounted for consistently with them as the hasty speech of an excited man.

That the prisoner had no idea he was committing larceny in taking the bond, is manifest from the whole record. The Attorney General expressed such a belief in the opening of his argument. The jury who tried the case, no doubt entertaining the same belief, recommended the prisoner to the clemency of the executive. And the judge who presided at the trial, doubtless with the same view, heartily joined the jury in their recommendation.

Intention is an important element in the constitution of crime, especially the crime of larceny. And though a man who knowingly commits a wrongful act may be guilty of larceny, even though he may not believe that the act amounts in law to larceny; yet his ignorance is an important circumstance to be weighed with others in determining whether the act was done with a felonious intention.

In addition to the other circumstances tending to the exculpation of the prisoner, is the important fact that on his trial the commonwealth conceded his good character for honesty, sobriety and industry*, and dispensed with any proof on these points.

Upon the whole, I am of opinion that the prisoner is guilty of trespass, and not of felony; and that the judgment against him should be reversed, and a new trial awarded.

The other judges concurred in the opinion of Samuels, J.

Judgment affirmed.  