
    The People of the State of New York, Resp’ts, v. John M. Pollock, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Criminal law—Penal Code, § 538—Construction—Larceny.
    Section 538 of the Penal Code, which provides that any person, with intent to deprive or defraud the true owner of his property or the benefit thereof, * * * or appropriates to his own use any money, * "* * is guilty of larceny, simply classes the respective ofienses as larceny, but it has not changed the methods of proof.
    3. Same—Evidence oe criminal intent must -be shown.
    To constitute guilt, there must be evidence of intent to deprive or de fraud, the owner, and the jury must find such criminal intent as a fact upon the evidence before a conviction can be had.
    .45. Same—When question op intent proper eor the jury.
    Where it appeared 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: Held, that as it was important to determine whether the relatioh at the time of the failure of the defendant’s firm was that of agent or debtor; it was competent, upon the question of intent, to show and permit the jury to know all the surrounding circumstances.
    4. Same—Evidence oe character—When competent.
    Evidence of character is competent to be submitted to a jury for the purpose of raising a doubt, but it is not essential that a case must be doubtful before such evidence can be considered.
    Appeal from a judgment of conviction rendered at the court of sessions for grand larceny in the first degree.
    The crime consisted in the defendant appropriating to his own use the sum of $603.86 which he had received as the bailee or agent of one James Hamilton.
    •George H. Decker and McCroskery & Seager, for app’ltBussell Headley, district attorney, for the people.
   Pratt, J.

—The statute, section 628 of Penal Code, unuer which the defendant was indicted and convicted, provides, that any person with intent to deprive or defraud the true •owner of his property or the benefit thereof, etc.,_ * _ * or appropriates to his own use any money, etc., 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 offences.

It simply classes these respective offences 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 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 to what 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 sometime 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 a 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 the prejudice to the defendant sufficient to warrant, a reversal of the judgment, and the ordering of a new trial All concur.  