
    [Philadelphia,
    January 8, 1827.]
    LEWER against The COMMONWEALTH.
    IN ERROR.
    It is not constructive larceny if one by fraudulent means induces another to part - With the property in goods, and to deliver .the possession of- them absolutely : this description of larceny is confined to cases where the party intended only the delivery of possession.
    This case came before the court by writ of error' from the Mayor’s Court of the city of Philadelphia; at the last December sessions of which court, M. D Lewer, the plaintiff in error, was indicted for larceny in stealing the goods of David H. Davis and Benjamin Oakford, trading under the name of Davis and Oak-ford. The jury found a special verdict, setting forth that the said M. D. Lewer, in the month of October, 1825, went several times to ' the store of the said Davis and Oakford, and by various false and fraudulent pretences did procure from the said Davis and Oak-ford sundry dry goods belonging to them, of the total value of two hundred and ninety-six dollars and fifty-five cents; that he falsely represented to the said Davis and Oakford that he was the agent for his brother E Lewer of Morristown, New Jersey, for whom he wished to purchase goods; that he subsequently laid off some of goods, falsely pretending that they were for the said- E. Lewer, which goods were charged -by the said Davis and Oakford to the aforesaid E. Lewer, and the receipt of Davis and Oakford given as from the said E. Lewer, and the goods, when packed, marked with E. Lewer, Morristown, New Jersey; that he subsequently exhibited to the said Davis and Oakford a letter, which he said was written by the said E. Lewer to him, purporting that E. Lewer had transmitted to the said M. D. Lewer, the sum of three hdndred and fifty dollars, to pay for the goods which the said E. Lewer had authorized the said M. D. Lewer to purchase for him, and that the said M D. Lewer had the bill for the same made in the name of E. Lewer, and told the said Davis and Oak-
      
      ford that he had deposited the above sum of three hundred and fifty dollars in the Southwark Bank of the county of Philadelphia,—whereas it appears that no such person as E. Lewer existed, and that no money had been transmitted, or deposited in bank; but that the letter was forged and false, and written by the said M. D■ Lewer himself, with the intent, and for. the purpose of defrauding the said Davis and Oakford, and obtaining fraudulently the possession of their property; and further, that the said M. D. Lewer fraudulently delivered to the said Davis and Oakford, after bank hours, a false check drawn on the Southwark Bank in the county of Philadelphia for the sum of three hundred and fifty dollars, for which the said Davis and Oakford gave their receipt to 'E. Lewer, and the said check being for more money than the value of the said goods amounted to, the balance was delivered to the said M. D. Lewer by the said Davis and Oakford;—that the said M. D, Lewer had no money in the said bank, and never had kept any account there;—that by this series of false and fraudulent pretences he did unlawfully and dishonestly obtain possession of the goods of the said Davis and Oakford, with the premeditated design and intent wilfully to defraud and cheat them of their property, and without any intention of ever returning the same to the rightful owners. And that having thus fraudulently obtained the said goods, he eloped from the city'of Philadelphia, and went to New York, taking the said goods with him, where he was after-wards arrested with the said goods in his possession. The jurors found the said M. D. Lewer to have perpetrated all the acts herein enumerated, with a deliberate premeditated design and intention to defraud the said Davis and Oakford; and having found the facts, they submitted the question of law to the decision of the court; and if the court should be of opinion that the offence committed by the said, M. D Lewer be a larceny, the jurors-did in that case find the said M. D. Lewer guilty of larceny in manner and form, &c.; but if the court should decide that it was not a larceny, then they found that the said M. D. Lewer was not guilty. Upon, this finding, the court was of opinion that the prisoner was guilty of larceny, and passed sentence on him accordingly.
    
      Owens, for the plaintiff in error,
    argued, that in this state there never has been such a crime as constructive larceny; it is still necessary that the goods should be taken against the will of the owner in order to constitute a larceny—and if the law in this respect has been altered in England, it has been by cases decided since the 4th of July, 1776, which have, therefore, no binding authority in this state. The doctrine of constructive offences is a dangerous one, and ought to be rejected by the courts, as leading to great confusion and difficulty in the administration of the penal laws. With respect to larceny, the rule by which to determine the nature of the offence is, that if the property passes there can be no larceny; and he contended that in this case, Messrs. Davis and Oakford had clearly parted with the property in the goods delivered to Lewer; and therefore, however fraudulently he may have acted, he cannot be said to have taken the goods without their consent; consequently, the property passed to him, and he was not guilty of a larceny. He cited Bussell on Crimes, 1055 to 1063; and referred to two cases similar to the present, in the Mayor’s Court, in which the aldermen composing that court, (Read, Recorder, dissented,) had ruled the offence to be larceny.
    
      Pettit, for the Commonwealth, replied,
    that he did not intend to support the judgment of the court below upon any new ground of constructive offences:.-he was altogether opposed to the construction by either court or jury, of any acts into felony, which by the settled rules of law did not amount to felony; but he wished to prevent having that construed into mere misdemeanor, which by established law amounted to felony—there had been, he thought, a misconception In regard to what has been of late termed constructive larqeny'-—construction to a certain extent had been necessary ever since crimes had been the subject of definition: thus, there had always been a constructive breaking in burglary, a constructive putting in fear in robbery, and a constructive taking in larceny: in the present, case he submitted that there had been such a taking of the goods as by construction of law amounted to a felonious taking. He entered on -an analysis of the definition of larceny; obtrectatio rev alienee fradulenta cum animo furandi, invito domino; and contended, that upon this ancient definition, as found in Bracton, the plaintiff in error was guilty of-felony; that connecting the true import of the terms invito domino with the animus furandi, it was good law to say, that though there be a delivery by the owner, yet if there be clearly-a fraudulent intent and no ehange of property, the crime of larceny is consummated. He went into a consideration of that class of eases in which the facts were held not to constitute larceny, in as much as the property was not parted with, or meant so to be by the owner; and also of that class in which the facts were adjudged larceny on the ground of felonious intent, and that the possession only, not the property, had been parted with. The present case, he contended, belonged to the latter class; and, to show that the property had not. passed, he cited cases to prove that an action of trover of replevin might be supported, to recover the goods thus fraudulently obtained. He argued, too, that even the legal possession could not be said to háve be§n parted with, because such possession follows the legal right of property; and, further, that even if the prosecutors intended to part with the property in the goods, it was to E. Lewer, a person who had no existence, and not to the plaintiff in error. Besides, he urged the importance of measuring the degree of guilt in this, as in all other offences, by the intent existing in the mind- of the party accused, rather than by the intent of the party injured. Upon the whole case, he submitted, that if the distinction between the property and the possession could be so applied here as to avail the plaintiff in error, the result would seem to sanctipn the principle, that a half executed deception would amount to a felony—but a perfect, skilfully finished fraud, would constitute no offence punishable by the law. ..Hé cited, 4 Bl. Com. 11. 2 Russell, 1031, 1045. Archbold's Crim. Law. 119. 4 Mass. 502. 15 Mass. 156, 359. 16 Mass. 151. 17 Mass. 606. Russell, 1068, 1978.
    
      Biddle, for the plaintiff in error, in reply,
    was stopped by the court.
   The opinion of the court was delivered by

Tilghman, C. J.

(after stating the special verdict and judgment of the court below.) it is of the essence of iarceny that the taking be invito domino, without the will of the owner. Fost. 123. 4 Bl. Com. 230. 2 East, C. L. 665. The ancient known definition of larceny, says Foster, is fraudulenta obtrectatio rei alíense invito domino. Fost. 124. The question is, then, whether the defendant took and carried away the goods of the prosecutors against their will? To a person unacquainted with legal subtleties, it would seem strange to make it a question whether, after a sale and deliyery of goods, and a receipt given for the price of them, the vendee could be said to take them away against the will of the vendor? The argument on behalf of the prosecution is, that the consent of the vendors was fraudulently obtained, and therefore, in law, it was no consent; and the defendant', having from the beginning an intent to get possession.of, and'carry away the property without paying for it', was guilty of larceny. The consequence of this principle has such an important bearing on society, that it must be well considered before it is adopted. The cases in favour of it in the English courts, if any such there be, are since the American Revolution (4th July, 1776,) and therefore no authority here. But although our legislature has forbid the citing of such cases in our courts, yet it was never so unwise or so illiberal, as to wish to restrain the judges from deriving useful information from the opinions of learned foreigners of all nations. I have, therefore, had the curiosity to run through the English decisions on questions similar to that before us, and it really appears to me that their judges have so entangled themselves in the nicety and minuteness of their distinctions, that their best elementary writers are unable to reconcile the adjudged cases: and'this must ever happen, when courts of justice endeavour to provide remedies which should be left to the legislature. This error has often been fallen into by men of the first talent and strictest integrity. Indignation is naturally excited by acts of flagrant villainy, and a judge thinks himself justified in taking one step beyond the line to come at the offender. But this step is not easily retraced; the case is urged on him as a precedent, and a new principle, once established, leads to so many unforeseen consequences, that at length the court endeavour to escape from them by distinctions too nice for comprehension; and thus the law becomes confused and uncertain—an evil always to be deprecated, but particularly in criminal cases. So much for the progress of the English law, since our revolution. But there are adjudications, prior to that period, which are authority, and by which, unless manifestly wrong, we have always held ourselves bound.

It was a principle of the common law in the earliest times, that its provisions were not to be evaded by fraud and artifice. A memorable example of this was given in a case in the 13th Edw. 4, mentioned by Kelyng in his Reports of Pleas of the Crown, 81, 82. One bargained with another to carry some packs of goods to Southampton, and delivered the goods to him. The carrier took them to another place, and there opened the packs, and took the goods, and disposed of them to his own use. The case being one of-difficulty, was referred by the king and council to all the judges in the Exchequer Chamber, who resolved it to be felony. The reason of this decision was, says Kelyng, hecause the carrier’s subsequent act of carrying the goods t.o another place, and then opening them and disposing of them to his own use, “ deplareth the intent originally was, not to take the goods upon the agreement and contract of the party, but only with a design of stealing them.” -This case has been often cited, and always held for law. And it has been said that if the carrier had not broken the packages, but disposed of them entire of his own use, it would not have been felony. The reason of this distinction is very refined, ,but shows the anxiety of the judges that a breach of trust should not be construed into a felony. They would suffer nothing short of an opening of the packages to be sufficient evidences of such a fraudulent original intention, as would constitute a felony. And it has never been denied, that if the original intention of the carrier had been to take the goods upon .the trust intended by the owner, and he had afterwards changed his mind, and converted them to his own use, it would have been but a breach of trust, and no felony. Kelyng mentions also another case of an unsuccessful fraudulent attempt to evade the law in á capital case. Some persons, under pretence of robbery, raised a hue and cry, and called a constable to search a house in the night timé, and,the constable coming, the owner of the house opened the door, and then, those-persons bound the constable; and those in the house, and robbed them. This was burglary, because they procured the door to be opened to them in the night by fraud. There are other ancient authorities, establishing the principle, that if the owner of goods parts with the possession for a particular purpose, and the person who receives possession, avowedly for that purpose, -has a fraudulent intention to make use of the possession as the means of converting the goods to his own use, and does so convert them, it is felony.

Such was Ckissers’s case', reported in T. Raymond, 275. 2 East, C. L. 275. Chissers asked the price of, some cravats in a shop, the owner told him the price was seven shillings, and handed them to him to look at; Chissers took the cravats, offered three shillings, and then ran away with them: this was felony.—Tunnard’s case was determined in 1722, and cited from a M. S. note, 2 East, 687. Tunnard borrowed a mare from Smith, to ride three miles; but, instead of three miles, he rode from the Isle of Ely to London, and there sold her. Lord Raymond left it to the jury to decide whether Tunnard took possession of the mare with the original intent to ride her only three miles, and then return her, or to steal her.- The jury were of opinion that the intent was to steal, and it was held to be felony. Now, in all these cases, and others which it is unnecessary to mention, the owner of the goods had no intent to part with the property, but only the possession for a particular purpose; so that when the felon, pretending to receive them for the same purpose, harboured the secret design of stealing them, it has not been thought straining the law too far, to say that a possession thus fraudulently obtained was void, and the legal possession remained in the owner.

But when the owner intended to part with the property, the case is different. For although fraudulent means may have been used to induce him to part with it, yet he delivered the possession absolutely, and the purchaser received the possession for the express purpose of doing with the goods what he pleased. The owner was not deceived by the manuer in which possession was taken. It was his intent that the possession should never return to him. Therefore it was a case of cheat, and not of felony. I find it laid down by East, a writer on criminal law of respectable character, “ that if the owner parts with the properly, by whatever fraudulent means he was induced to give credit, it is not felony7.” I have seen no judicial decision, which is authority in this court, carrying the doctrine of what may be called constructive larceny, beyond the case where possession only was intended to be delivered.

And I am for stopping there, because we have a line distinctly marked, which is of great importance in criminal law. If it be said that it is equally criminal to prevail on the owner to part with the property by fraud and falsehood; I answer, that granting it to be so, it is not for the court to punish actions according to the degree of immorality. That is the province of the legislature. There is an insuperable objection to the extension of the law by courts of justice. What they decide must be taken to have been law before their decision; so that a man may be, in effect, punished by an. ex post facto law. Whereas the legislature takes care, when it creates an offence, to confine it to subsequent actions. I confess my own opinion is, that the law of felony has been pushed quite far enough, by the adjudged cases on possession fraudulently obtained. I am alarmed at the consequences of the principles now contended for. The argument is, that a fraudulent contract is void; therefore the property never passed from- the owner; and as the property draws to itself the legal possession, the possession never passed from him, in contemplation of law. Let us see to what this may lead. A man, in contemplation of insolvency, purchases goods with an intention never to pay for them. Here is a fraud; is it therefore to be a larceny? Or suppose a man purchases goods, and makes payment in a bill of exchange which he knows will not be honoured—that too is a fraud. Is it a larceny? Again, a man purchases goods, and pays for them, and, on examination, finds them to be damaged, he offers to return them, and rescind the contract, on the principle of the seller’s having known them to be damaged when they were sold. Perhaps he may be able to make this out to the satisfaction of a jury, and thus avoid the contract. Is it to be said, in that case, that the seller had an original intent to defraud the buyer of his money, and was therefore guilty of larceny? No, will be the immediate answer of the counsel for the commonwealth, and there is no danger of any man’s being improperly convicted of felony, because the jury are to decide whether the intention was felonious. But juries have sometimes their passions and their prejudices. There are times when the public mind is strongly excited, and juries are hurried away by the common feeling. A man is thrown into a tremendous uncertainty, who has nothing to trust to, but the opinion' which a jury may Jform of his secret intention; a matter, of .which, after all, they can have no positive or certain knowledge. All cheating is immoral, but its degrees of guilt are very different. Let the legislature, if it thinks proper,’ declare the offence, and prescribe the punishment. ‘ - ’ ,

Now to come to a conclusion;—the defendant in this case deceived the prosecutors most shamefully. But he did obtain their consent to an absolute sale, and the possession was delivered accordingly. There was no condition in the'case. When Davis and Oakford were imprudent enough to receive the defendant’s check, they knew that it was not money. But such as it was, they accepted it in payment, and went so far as to give cash for the amount by which it exceeded the price of the goods. I say not, whether the property passed legally to the defendant, or not; but it is beyond doubt, that Davis and Oakford intended to pass the property when they delivered the possession, and, therefore, it was not a case of larceny.

I am of opinion that the judgment of the Mayor’s Court should be reversed, and judgment entered for the plaintiff in error.

Judgment reversed.  