
    The United States vs. Joseph Rodgers and Cristopher Hunter.
    Criminal Docket.
    { Decided February 14, 1882.
    
      i Tie Chief Justice and Justices Wtiis and James sitting.
    1. Where the mere possession of a chattel is fraudulently obtained from the vendor by the vendee, animo furandi, a conversion of such chattel by such vendee is larceny.
    2. The facts that a portion of the purchase money is paid by one of two vendees in collusion and receipted for by the vendor, and the chattel left in the possession of said vendee, while the vendor proceeds to another place to receive the balance of the purchase money from the other collusive vendee, do not work a transfer of the title; it remains in the vendor until the transaction is complete, and the whole of the purchase money paid; anda conversion of the chattel by the vendee in possession before the entire purchase money is paid, constitutes larceny on the part of both of such collusive vendees where they have conspired to obtain possession of such chattel by fraud or deceit for the purpose of conversion.
    Statement oe the Case.
    The defendant was convicted of grand larceny.
    About March 9, 1881, one William H. Peden, a farmer residing in Stafford county, Virginia, came to the city of Washington, D. C., with a mare which he wished to sell. He was approached by the defendant, Bodgers, and urged to trade ; this he repeatedly refused to do, saying that he would only sell, and that for the sum of $105 cash. The defendant Hunter, who was an acquaintance and associate of Eod-gers, both being horse traders, then intervened and offered Bodgers $100 for a horse which he (Bodgers) had in a distant part of the city, Hunter at the same time falsely stating that he was the owner of an adjacent house which he then pointed out. It was' arranged that Peden should ride his mare to the distant stable where Bodgers’ horse was, should there receive $5, should then ride the horse back to the house which Hunter pretended to own and there receive from Hunter $100, Peden rode the mare to the stable, received $5, and gave a receipt therefor, left the mare with Bodgers at that stable, rode the horse back to the house which Hunter said he owned, could not find Hunter, and learned that he did not own the house. He went- immediately back to the stable where he had left his mare, but she had been removed. Neither Hunter nor Rodgers could be found. After search and complaint to the police, Peden found his mare at a stable in another part of the city and reclaimed her, leaving the horse, which was subsequently claimed and sold by Rodgers. Peden swore that he did not intend to part with the property in his mare until he had been paid the $105, and it was not pretended that he regarded the horse as his property; he immediately reclaimed his mare when he failed to find Hunter at the appointed place.
    To this evidence on the part of the Government the defendants demurred. Cox, J., overruled the demurrer, and upon this ruling the case was argued in general term.
    A. B. Williams for the defendants:
    On the first bill of exceptions the defendants contend that their acts as disclosed by the testimony produced on behalf of the United States do not constitute the offense of larceny, and, therefore, that their demurrer to the evidence should have been sustained by the court.
    They offer the following reasons for this position :
    I. That the proof shows that the element of barter and sale entered into and formed a component part of the trans. action, and that title passed.
    This clearly appears from the acts of the prosecuting witness, Peden, as disclosed by his own testimony.
    
      First. Because Peden having come to this District for the purpose of selling his mare, he did agree to dispose of her for the sum of one hundred and five dollars.
    
      Second. Because Peden did receive five dollars and did receive and take away the mare belonging to the defendant Rodgers.
    
      Third. Because Peden did deliver his own mare to the defendant Rodgers.
    
      Fourth. Because the said delivery of his mare by Peden to ( Rodgers, was absolute and unconditional, on his part, and accompanied by the receipt of articles of true value in return therefor.
    
      Fifth. Because the said delivery of his mare by Peden to Rodgers, aud the reception of Rodgers’ mare and five dollars in return therefor was at that time with the intent on the part of Peden to transfer the property therein.
    
      Sixth. Because Peden knew at the time of the delivery of his mare to Rodgers, that he, Rodgers, received her as his own property, and that his consent thereto would be implied from his silence.
    
      Seventh. Because, after getting the five dollars and mare from Rodgers, he, Peden, recognized his agreement with Hunter by proceeding to the place designated by Hunter with the intent to deliver to him the mare he had just obtained from Rodgers, and receive the one hundred dollars agreed upon.
    II. That the proof shows that there was no felonious taking on the part of the defendants.
    This also appears from the testimony of the prosecuting witness, Peden.
    
      First. Because the defendant Rodgers was placed in possession of the mare alleged to have been stolen, unconditionally, and by the voluntary act of Peden.
    
      Second. Because Peden failed to make a special delivery of the possession of the mare or to stipulate that she should be held by Rodgers for any period of time, or for any special purpose whatsoever.
    
      Third. Because when Peden delivered the mare to the defendant Rodgers, he knew at the time he did so, that defendant Rodgers received her as his own, and he permitted him to do so without any expression of dissent on his part.
    III. The general statement made by the prosecuting witness, Peden, “that he did not intend to part with his mare unless he got one hundred dollars in money,” is not testimony tending to prove the fact, which must be affirmatively established by the United States, that at the time of delivering his mare to Rodgers, he did reserve title in himself and make a special delivery of the mare, but, it is consistent with the fact which is established by the entire testimony, that at the time that he delivered his own mare and took the five dollars in money and Rodgers’ mare, he fully believed that he would get one hundred dollars for her, on delivering her to Hunter, and that at that moment he intended that title in his mare should pass to Rodgers.
    IV. The guilt of persons charged with crime cannot be made to depend upon the unexpressed mental reservations of others, but only upon their own acts and expressions ut tered or adopted by them.
    There have been many decisions, both ancient and modern, upon the subject of larceny, where the possession has been obtained by consent, and they may be considered as establishing the following propositions, as to title:
    
      First. If the owner of goods part with the possession, voluntarily, knowing at the time, that the person receiving the same takes them as his own property, and he fails to indicate or to express his dissent thereto, title passes and it is not larceny, although false and fraudulent means have been used to obtain the owner’s consent to the act. Welsh vs. People, 17 Ill., 389; State vs. Kellog, 26 Ohio, 15; Lewer vs. Com., 15 S- & R., 93; Elliot vs..Com., 12 Bush., (Ky.), 176; Kelley vs‘ People, 13 N. Y., (S. C.), 509; Phelps vs. State, 55 Ill., 334; State vs. Porter, 1 Porter, (Ala.), 118; 1 Dennison, C. 0., 38; 2 East., 668.
    
      Second. When the owner of goods delivers the possession to another person, specially for some purpose or object, and they are subsequently by him converted to his own use, the offense is larceny. State vs. Watson, 41 N. II., 533; State vs. Lindenthal, 5 Richardson, (S. C.), 237; Elliot vs. Com., 13 Bush, Ky., 176; Smith vs. People, 53 N. Y., Ill, Hildebrand vs. People, 56 N. Y., 394;’Loomis vs. People, 67 NY., 322; Weyman vs. People, 6 Thomson & Cook, N. Y., (SC.), 696; 2 East., 678, 679.
    Applying the principles established by these cases it is apparent that, inasmuch as the owner of the mare voluntarily parted with his possession and delivered her to the defendant, knowing that he received her as his own, and took the defendant’s goods away with him, without making any stipulation or agreement concerning her, and without giving expression to any mental reservations or intentions that may have existed in his mind at the time, he conser quently made no special delivery and therefore the defendants are not guilty of larceny.
    George B. Corkhill and R. Ross Perry, for the United ■States:
    I. Where, by delivery, the owner of the goods passes not only the possession, but the right of property, there is no ■larceny.
    !!: n. But where the mere possession has been obtained animo furandi or fraudulently, then any act indicating conversion constitutes larceny.
    Did Peden, in delivering possession of his mare to Rodgers intend to vest him with the ownership of the mare until he had been paid for her ? He swears that he did not so intend ; it is not reasonable to suppose that he did so intend; he was a stranger here and the defendants were strangers to him ; it is not probable that he would have parted with the property in his mare until he had been paid relying simply upon the good faith of these strangers. His acts show that he did not so intend, for his first step was to reclaim his mare ; the defendants knew that he did not so intend, for they immediately removed and, as they thought, .concealed the mare, and then vanished.
    The following cases are referred to as illustrating the distinction between a mere delivery of the possession, a conditional delivery and the absolute transfer of ownership : Rex vs. Aikles, 2 East. P. C., 675 ; --, 1 Leach, C. 0., 294 ; Rex vs. Campbell, 1 Moody, C. C., 179 ; Rex vs. Small, 8 Car. & Payne, 46 ; Regina vs. Webb, 5 Cox C. C., 154 ; Rex vs. Gilbert, 1 Moody C. C., 185 ; Rex vs. Pratt, 1 Moody, C. C., 250 ; Regina vs. Cohen, 2 Dennison, C. C., 249
    See also — 2 Leading Criminal Cases, p. 101; 1 Whartons’ Criminal Law, §§963, 966 ; Stevison vs. People, 43 III., 397 ; State vs. Brown, 25 Ill., 561; People vs. Call, 1 Denio, 120 ; People vs. McDonald, 43 N. Y., 61, Smith, vs. People, 58 N. Y., Ill; Elliott vs. Com., 12 Bush, (Ky.), 176.
    There is apparently but little conflict between counsel for the defendants and counsel for the United States with respect to the law applicable in the premises.
    It is conceded by counsel for the United States that if Peden meant to transfer the ownership of his mare by the delivery of the possession to Rodgers, there is no larceny.
    It is conceded by counsel for the defendants that if Peden delivered the possession of the mare to Rodgers, specially for some purpose or object, intending to retain the ownership until the purpose was accomplished, and the mare was converted by Rodgers before such purpose was accomplished, then there is larceny. Counsel for defense, however, insist that the special purpose must be explicitly declared at the time of the delivery of the possession. Mr. Justice Cox thought otherwise and instructed the jury that it might be implied from all the circumstances of the case, and the accompanying and succeeding acts of both parties. In this he was clearly right. None of the cases cited by defendants’ counsel establish that there must be a formal declaration by the one party and acceptance by the other, of the purpose of the transfer of possession.
   Mr. Chibe-Justice Cartter

delivered the opinion of the court.

We do not care to hear further argument in this case. We think the defendants were fairly tried and properly convicted, and that they are eminently worthy of punishment. The case, as it appears to us, was that of an inchoate sale, an incomplete delivery, and a conversion of the property by the defendants with a felonious purpose, while the sale was yet inchoate and incomplete.

The formula of the transaction, if dissected as the ingenuity of counsel in argument has ably attempted to do, might make another case. But is that the proper way to ' view this transaction in the light of the plain purpose of the law to punish guilt and to protect innocence?

The complaining witness came to this city with a horse for sale, of which he had fixed the price, and upon the horse-market here he met the defendants Rogers and Hunter. He was inquired of by them if he wanted to sell his horse. He replied, “Yes, I want to sell my mare for $105 cash.” Said Rodgers, “ I would buy it if I could sell my horse for $100.” Hunter then and there, according to the statement of facts, said that he would pay Rodgers $100 for his horse. “ Yery well,” said the complaining witness, “ that makes a sale of ■my mare for $105.”

Now counsel for the defendants has discussed the case as if this was the merest innocent, accidental, segregated action conceivable on their part; that it all happened by mere blunder; that there was no concert of action or mutual understanding between Rodgers and Hunter; if that view of the facts could be tolerated the force of the argument would be conclusive. But the case as the evidence clearly shows it, is far otherwise.

The complaining witness, a countryman, is approached by these defendants with reference to a purchase of his mare ; as always happens in such cases, the consideration to be paid is not at hand, it is by mere accident a little way off, as in this instance the horse which Hunter pretended to buy of Rodgers was not at the horse market but at Rodgers’ house; the countryman was invited to go there, leave his mare., bring Rodgers’ horse to Hunter and receive the $100, and he went. Hunter told him that he (Hunter) lived in and owned a certain designated house, and that he (witness) should bring Rodgers’ horse there and receive his money. At Rodgers’ house the saddle was taken from the countryman’s mare, placed upon Rodgers’ horse, which the countryman rode back to the house pointed out by Hunter;- when he got there he found that Hunter did not live there and did not own the house. Hunter he could not find. He then rode back to Rodgers’ house, but both Rodgers and the mare had disappeared, just as you might accidentally suspect from this series of accidents. He then began to suspect that he had fallen among thieves, and made complaint to the police through whose assistance he recovered his mare in another part of the city.

Now does this combination of facts, this series of circumstances, justify the conclusion that these defendants acted in concert, and that they conspired to get the complaining witness’ mare fraudulently out of his possession? ¥e think that such a conclusion is irresistible.

The demurrer was overruled in the court below upon the hypothesis, as we are advised by the charge of the court, that this transaction was one and entire; that Rodgers and Hunter were in design one person, that they mutually conspired and intended mutually to reap the benefit of the conspiracy.

The ground upon which we decide this case is that here was an incomplete sale, an incomplete or conditional delivery of the thing sold; that the transaction was not ripened and fully consummated until the purchase money had been paid for the mare ; that the title to the mare 'did not pass until the purchase money had been paid, and was not intended by the vendor to pass until then. The fact that Rodgers’ horse constituted one part of the consideration» and the five dollars paid by Rodgers another part of the consideration, and that the horse was saddled to convey the vendor to the place of payment of the balance of the purchase money, do not make it a complete transaction ; it ..could not become such until the purchase money had in fact been paid. ¥e hold that the right of property in the title to the mare remained in the vendor until the time of the payment of the purchase money, and as the purchase money was never paid the vendor never parted with his title to his mare.

If the question were res integra, I should myself hold that in no case could title pass where the possession has been obtained by fraud or deceit, and in my opinion there is no solid ground of distinction between cases where the title has been obtained by fraud and those in which only a naked possession has been so obtained. To say that a vendor has parted with his title under such circumstances may be correct in terms, but how has he parted with it? "Why, under the in fluence of fraud and false pretences. • His judgment and will have been cheated. All the requirements necessary to con" stitute a legal contract for the alienation of property have been outraged, yet that which the law in its civil issues treats as void, by the sublimated metaphysics of the criminal law is made valid. This is a refinement in the direction of protecting guilt and defrauding innocence ; it is a distinction in violation of common sense, and of all the analogies of the law, and if I were not bound by precedents I should not hesitate to declare all such transactions larcenies.

The court has, without any hesitation and' without argument on the part of the United States, concluded to affirm the decision below, and it is so ordered. '  