
    E. C. Kellogg v. The State of Ohio.
    'Wjhere a contract for the loan of money is induced by the fraud and false pretenses of the borrower, and the lender in performance of the contract, delivers certain hank hills without any expectation that the same hills will he returned in payment, the borrower is guilty of obtaining money by false pretenses,- hut is not guilty of the crime of larceny.
    Error to the Court of Common Pleas of Hamilton county.
    At the June term, 1875, of the court below, the plaintiff in error was convicted of the crime of larceny, and sentenced to imprisonment in the penitentiary for a term of years.
    The testimony offered on the tidal- showed, that in the month of April preceding, the prisoner had obtained $280 in bank-bills, from the prosecuting witness, under the following circumstances.
    The witness and the prisoner had first met and formed a casual acquaintance as passengers on a train of cars passing from St. Louis to Cincinnati. After their arrival at Cincinnati they again met at the railroad depot, where the prosecuting witness was about to take another train for his home in Madison county, when the following occurrences took place, as detailed by the witness: “ The defendant asked me if I was-going to take that train ; I said yes. He said he thought he would go on that train too. Then a man came up to us and said to the defendant, ‘ if you want to go on that train, you had better get your baggage and pay your freight bill.’ The defendant then said: ‘ Confound those fellows ; they won’t pay me any premium on my gold, and I have no other money to pay this freight bill, and I don’t want to give them two hundred and eighty dollars in gold and get no premium.’ He then said to me, ‘ Will you let me have $280 in currency, and I will give you this gold to hold us security until I can go to the bank and draw some money which I have there, and I will then pay you $280 back. He further said, ‘ I must get my freight out to-night, and they won’t let me have it until I pay the bill, which is $280.’ I then told him I would let him have the two hundred and eighty dollars to pay his freight bill; which I did, and he-gave me fourteen pieces of what he said was gold, and which I took for twenty-dollar gold pieces, and I gave him $280 in paper money. He started off, and I examined them and found that they were not twenty-dollar gold pieces, nor were they gold at all. . . I followed him, but did not overtake him or see him any more until he was arrested.”
    On cross-examination, the prosecuting witness testified as follows : “ I delivered my money to him voluntarily. He used no force or violence to obtain it from me. I never expected to get the same money again. He said he would go-to the bank and draw some money, and come back and pay. me what he borrowed and get the gold.”
    The commission of the crime charged in the indictment was not otherwise proved than as above stated.
    The court was requested by the defendant to charge, that “ if the jury found from the evidence in the case, that the defendant fraudulently and wrongfully induced Denton, the prosecuting witness, to part with the money mentioned in the indictment; and if they also found that the prosecuting witness was fraudulently induced to, and in fact did part with the possession and property in the money described in the indictment,” the defendant could not be convicted of the offense of larceny as charged in the indictment. The record shows that “the instruction in that form the court refused to give,” but did give the same with the following explanation : “ That the word property as used does not mean the mere money—it means the proprietory right of ownership in the money. So that, while the manual possession of the money may be in one person, the legal technical property may still be in another, and a bailment or possession of goods and chattels obtained by a trick or fraud does not transfer the property to the person practicing the trick or fraud. If you find, therefore, that the mere possession of the money with the owner’s consent was fraudulently obtained by the defendant with intent to steal it from the owner, it is larceny.”
    
      C. H. Blackburn, for plaintiff in error:
    The testimony shows that Kellogg obtained the money from Denton without force or violence; that Denton delivered the money to him voluntarily, and did not expect to get the same money again. This being so, there was no trespass and could be no larceny. 2 Bishop S. 0., secs. 812, 813, 818, and authorities cited 2 Wharton S. C., secs. 1853, 1854; Minis y. The State, 3 Iowa, 67; Welch v. People, 17 111. 399 ; Wilson v. The State, 1 Porter, 118; 15 Serg. & R. 93. Nor does it change the rule when the consent is obtained by fraud. 2 Bishop S. C., sec. 811; Bex v. Summers, 3 Salk 194; 2 E. P. C. 668; 15 Serg & R. 93; Cary v. Hotailing, 1 Hill (N. Y.), 311.
   McIlvaine, C. J.

On the trial below, the jury was properly instructed that the defendant could not be convicted of larceny, if he obtained the possession of the money alleged to have been stolen from the prosecuting witness with his consent, if it was further found that at the time of the transfer of the possession, the right of property in the money also passed from the prosecuting witness to the defendant, although the witness was induced, through the fraud of defendant, to part with the possession and the property in the money. And there was no error in the further instruction : “ If you find, therefore, that the mere possession of the money, with the owner’s consent, was fraudulently obtained by the defendant with intent to steal it from the owner, it is larceny.”

This last instruction, however, was the predicate of a proposition which had been given in explanation of tho first instruction, to wit: “ While the manual possession of money may be in one person, the legal, technical property may still be in another; and a bailment, or possession of goods and chattels, obtained by a trick or fraud, does not transfer the property to the person practicing the trick or fraud.” Whether this, as an abstract proposition of law be true or false, it was certainly misleading in the case as it was made in the evidence. The jury could not well have understood it otherwise than as a declaration by the court, that the transaction, as detailed by the prosecuting witness, amounted to a mere contract of bailment, which left the right of property remaining in the prosecuting witness.

Now, if the common law at all recognizes a class of bailments, corresponding to the mutuum, of the civil law— to wit, where a loan is made of money, wine, or other thing that may be valued by number, weight, or measure, which is to be restored only in kind of equal'value or quantity—it is not true that the right of property in such bailments remains in the bailor; but, on the other hand, the absolute property passes with the possession, and vests in the borrower. In such cases the fraud of the borrower no more prevents the passing of the title to the thing loaned upon delivery, than does fraud on the part of a purchaser of goods. The contract in either case is not void, but only voidable at the election of the lender or •seller.

The better opinion, however, seems to be that such a loan is not a regular bailment at common law, but falls more p roperly under the bAominate contract, do ut facies, and results in a debt, and not in a trust.

The testimony before the jury in the court below tended to prove a loan of money from the prosecuting witness to the defendant, whereby the borrower became indebted to the lender, and assumed to make payment in other money. The testimony of the witness was, that he voluntarily delivered the money to the defendant and never expected to get the same money again. It is true he was induced to make the loan through the fraud and false pretenses of the defendant. No doubt a crime was thus committed by the ■defendant, but it was the crime of obtaining money under false pretenses, and not a larceny. To constitute larceny in a case where the owner voluntarily parts with the possession of his property, two other conditions are essential: 1. The owner, at the time Of parting with the possession, must expect and intend that the thing delivered will be returned to him or disposed of under his direction for his benefit; 2. The person' taking the possession must, at the time, intend to deprive the owner of his property in the thing delivered. But where the owner intends to transfer, not the possession merely, but also the title to the property, although induced thereto by the fraud and fraudulent pretenses of the taker, the taking and carrying away do not constitute a larceny. In such case the title vests in the fraudulent taker, and he can not be convicted of the crime of larceny, for the simple reason that, at the time of the transaction, he did not take and carry away the goods of another person, but the goods of himself.

Had the law been thus stated to the jury, there is no doubt the verdict would have been not guilty as he stood charged in the indictment.

Judgment reversed, and cause remanded for such further •proceeding as may be lawfully had in the premises.

Welch, White, Rex, and Gilmore, JJ., concurred.  