
    The People of the State of New York, Respondent, v. Kortright Cruger, Appellant.
    Where the owner of personal property intrusts it to another, to procure a loan thereon, and the latter procures the loan as authorized, his omission to account for or appropriation of-the proceeds of the loan will not sustain, an indictment against him for larceny of the property.
    Where, therefore, upon the trial of an indictment for larceny of a diamond pin there was evidence tending to show that the prosecutor delivered the pin to defendant to procure a loan thereon, and that defendant did do so, held, a refusal of the court to charge the jury that if they believe the complainant was authorized to and did procure a loan upon the pin as authorized, they could not convict under the indictment, was error.
    
      People v. Oruger (38 Hun,. 500), reversed.
    (Argued April 29,1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 8, 1886, which affirmed a judgment of the Court of Oyer and Terminer of the city and county of New York, entered upon a verdict convicting the defendant of the crime of grand larceny in the second degree. (Reported below, 38 Hun, 500.)
    The material facts are stated in the opinion,
    
      Morris A. Tyng for appellant.
    Unless a trespass was committed the offense charged in the indictment was not made out. (Thorne v. Turck, 94 N. Y. 90, 95 ; People v. Plath, 100 id. 590.) Evidence of embezzlement will not support a conviction of larceny. (Comm. v. Simpson, 9 Metc. 138, 142; Comm. v. King, 9 Cush. 284, 287.) The pin being lawfully in defendant’s possession, with the consent and express authority of the owner, for the purpose of procuring a loan, there could be no conviction under the indictment for larceny of it. (Comm. v. Stearns, 2 Metc. 347.)
    
      Randolph B. Martino for respondent.
    The defendant may not now avail himself of any variance between the indictment and the proof, even if the indictment does set forth a common-law larceny, and the proof was of a misappropriation, of property by an agent. (Code of Crim. Pro., §§ 465, 467; Case v. People, 6 Abb. (N. C.) 151; People v. Conroy, 97 N. Y. 62; People v. Cox, 70 id. 500; Dickerson’s Quarter Sessions, 269.)
   Daneorth, J.

The conviction is for stealing, on the 10th of March, 1885, a diamond pin, the property of one Porteous. It appeared in evidence that the defendant was engaged in the business of buying and selling jewelry, and of effecting loans upon personal property; that before the time in question there had been dealings between the parties in relation to the pin, but on that day it was in the possession and under the sole control of Porteous, who, as he testified, left it with the defendant to be sold, but, according to the testimony of the defendant, Porteous wanted him to procure a loan upon it, and did not direct a sale. It also appeared that at the police court, on the 26th of April, 1885, at an examination concerning the same transaction, Porteous was asked this question: You authorized a loan?” and answered “Yes, sir, when he” (the defendant) suggested either a loan or a sale.” Other circumstances in evidence sustain the defendant’s version, and there are some which might impair the credit of the complainant as a witness. There was sufficient evidence that the defendant did procure the loan from one Hawkins. At the close of the testimony the defendant moved for a direction of a verdict of acquittal, on the ground that the indictment charges distinctly a larceny of a certain particular pin, and the evidence being perfectly clear that the pin was left with the defendant for the purpose of procuring a loan on it, that he did procure a loan on it, acting exactly within the scope of his authority, and doing precisely what it was left with him for, he cannot be convicted under this indictment of the larceny of this pin.”

The court denied the motion, saying: “The complainant claims that there was no such authority conferred upon him,” (the defendant) that it was left with him for the nurpose of sale and not for the purpose of pledging.”

The defendant then asked the court to charge the jury as follows: “ The indictment being for the larceny of a certain pin, if the jury believe that the complainant, being the owner of the pin, authorized the defendant to obtain a loan upon it, and the defendant did actually obtain that loan from Mr. Hawkins (the witness who has testified), as authorized by the complainant, they cannot convict the defendant under this indictment of the larceny of the pin.”

The court declined to do so. The exception then taken presents the only question we think it necessary to consider. The proposition presented by the request negatived every ingredient of the offense charged, and if found in favor of the defendant would have made a conviction impossible. If the owner intended to part with the property for a special purpose, and the defendant used it only in the way prescribed, it could not be said to be stolen. -There could have been neither a false pretense nor a felonious taking on his part. It is said, however, by the learned counsel for the respondent, that the request asked too much, because it did not take in the possible intent of the defendant, £< at the time of procuring the loan,” to appropriate the proceeds to his own use. This by no means answers the exception, for if found according to the propositions of the request, it would appear that the defendant received the property lawfully and disposed of it according .to the wish of the owner, that he not only obtained the loan, but obtained it as authorized. The request might have been amplified, but it was unambiguous, and contained a proposition good in law and to the benefit of which the defendant was entitled. An omission to account for the proceeds of the loan could not, by relation, change the voluntary act of the owner in parting with the pin into a larcenous taking by the defendant, nor sustain the allegation upon which the indictment stood, that the defendant feloniously did steal, take and carry away” the property in question. There may have been a breach of trust and even fraudulent conversion of the proceeds of the loan, but that does not constitute the offense charged. The exception was well taken.

The judgment and conviction should, therefore, he reversed find a new trial granted.

All concur.

Judgment and conviction reversed.  