
    Pennsylvania v. Joseph Campbell.
    
      CAMPBELL was indicted for stealing a fifty-dollar bank note, the property of Daniel Prosser.
    
    
      William Todd, having contracted with the Governor for making a certain distance of the state road from Philadelphia to Pittsburgh, employed Campbell and Prosser, to make the road in part of that distance; and advanced 60 dollars, viz. 10 silver dollars, and a 50-dollar bank bill. Campbell took up the bill, and Prosser the silver; and they went to a neighbouring tavern, to get the bill changed for dollars6, and then divide the whole money equally between them. Not getting the bill changed at the tavern, Campbell desired Prosser to give him the silver, and take the note to another tavern, on his way home, and there have it changed, and give him his share afterwards. The note was then lying on the table with a paper in which it had been given them by Todd.- Prosser gave Campbell the silver, and proceeded to take up the note. Campbell bade him stop till he folded it up. While Campbell was folding it up, Prosser turned about to drink with some one in company. Campbell delivered the folded paper to Prosser, who immediately put it in his pocket. When he opened the paper at home, there was no note in it. There was some evidence, that Campbell, folding and delivering the paper, retained a dirty paper; and that he, afterwards proposed to pay Prosser 30 dollars, on his return from Philadelphia, whither he was going, if Prosser would swear, that he had lost the note. This Prosser refused to do.
    
      Woods and Young, for the defendant.
    This can be no larceny; for there never was a possession in Prosser; and there was a joint property. Supposing, therefore, a purloining or embezzling, it is not stealing. The offence, if there be any, is of another kind a cheat.
    
      Galbraith and Brackenridge for the state.
    There is an actual and constructive possession, an absolute and special property; and larceny may be of either.
    
      1 Hawk. 135. in not.
    
   President.

There must be a taking, as well as a carrying away. Unless you can conclude, from the proof, that Campbell had abandoned the possession of the note to Prosser, who, from this abandonment, and his undertaking to change the note, became liable to Campbell; or that Prosser, in consequence of his agreement, with consent to change, had taken the note; he had no possession; therefore, there can be no taking, and, of course, no larceny. But, if the possession was changed from Campbell to Prosser, a taking and carrying away by Campbell would be larceny, though Prosser had a share in the note; for the change of possession rendered Prosser answerable to Campbell for his half. If the possession of the note was not changed, and if Campbell imposed an empty paper, for one inclosing a note, though punishable as a misdemeanor, this, is no felony. Therefore, if the proof amount only to this, there can be no conviction on this indictment; although you or I may think, that there is little natural difference in the degree of enormity of such misdemeanor and larceny.

The jury found him guilty.  