
    Starkie v. Commonwealth.
    December, 1836.
    Larceny — Obtaining Chattel by Consent of Owner— Under Pretence of Borrowing — Conversion.—where a party, fraudulently and with intent to steal, obtains possession of a chattel with the consent and by the delivery of the owner, under pretence of borrowing, and converts the chattel to his own use, he is guilty of larceny.
    Same — Felonious Intent. — Case in which the circumstances amounted to proof of such felonious intent.
    Petition for writ of error to a judgment of the circuit superiour court of law and chancery for Kanawha county. The petitioner was indicted, tried, convicted, and sentenced to five years imprisonment in the penitentiary, *for the larcenj’ of a horse, saddle and bridle, the property of Orestes Wilson. After the verdict was rendered, the petitioner moved the court to set the same aside and grant him a new trial, on the ground that the evidence proved a breach of trust only, and did not warrant the conviction. The court having overruled this motion, the petitioner excepted, and set forth in the bill of exceptions the facts proved on the trial; which were as follows:
    On the part of the prosecution it was proved, that on the 28th of July 1836, the prisoner, who had been for about a month in the employment of Wilson who lived in Charleston, applied to Wilson for the loan of a horse to ride to R. Slaughter’s on Two mile creek, saying, he had received a message from Slaughter requesting him to come down and settle a claim for debt which Mrs. Miller (whose sister Slaughter had married) had against him; and that he should not be gone above two hours. Wilson told him to go to the stable and take the horse, which he did, together with the bridle and saddle. This was about ten o’clock in the morning. — R. Slaughter, from whom the prisoner said he had received the message, proved that he had no acquaintance with the prisoner, and had never on any occasion sent him a message: that he saw him pass his house, on Wilson’s horse, on the day above mentioned, and the prisoner made no halt, but bowed to him as he passed. — W. Rorqueran proved that on the day above mentioned, the prisoner overtook and passed him about a mile below Slaughter’s; that as he passed, he halted for a moment, remarked that he was in pursuit of a couple of stray horses, enquired of the witness whether he had seen such, and then immediately rode on. —J. Middlecoif proved that on the following day (the 29th) about two or three o’clock in the afternoon, he met with the prisoner at Point Pleasant in Mason county, about sixty miles below Charleston. The prisoner offered to sell him *the horse, and a bargain was struck for the sum of 41 dollars for horse, saddle and bridle, the witness paying 20 dollars in money, and for the residue executing his note to the prisoner by the name of John Martin, which he represented to be his true name. Witness remarking that the horse looked gaunt and was much stiffened, the prisoner replied that it was ■owing to the length of the journey, as he had ridden him from Culpeper county in Virginia. The prisoner remained at Point Pleasant until nine or ten o’clock of the following day, when he crossed to the west side of the Ohio river, as the steamboat Texas approached Point Pleasant, coming from Charleston, on board of which boat were persons in pursuit of the prisoner and horse. These persons obtained from the witness the horse with the saddle and bridle, and one of them went on to Gal-lipoiis without finding any trace of the prisoner. Witness however was informed by the prisoner, in an after conversation, that he had passed Gallipolis, and waited for a boat at a woodyard below that town, at which point he got on board the steamboat Hope. — P. Scales proved that he first saw the prisoner on board the steamboat Hope, which had stopped at Guyandotte on her way down the Ohio river: that for some reason the prisoner was suspected of having stolen the horse in question, and the passengers on board the boat refused to travel any further in company with him: he was then put on shore by order of the master. When first interrogated as to the charge against him, the prisoner protested his innocence, and professed entire ignorance of the matter, saying he would stay six months in the place in order to shew his innocence. He was afterwards arrested by the witness and another individual, on suspicion of this guilt. Upon being further questioned, he said his name was John Martin, and that he had purchased the horse of Wilson the prosecutor, and sold him to the witness Middlecoif. Upon the road to Charleston, whither he was *brought by the witness for trial, he observed to the witness — “I suppose you would like to know the whole truth in relation to this matter, and X will tell you. I borrowed the horse from Wilson to ride to Two mile creek, but when I borrowed him I did not intend to steal him. On arriving at Slaughter’s, I got to drinking and became intoxicated, and was persuaded to go off with the horse; and at another grog shop lower down, I got to drinking with others, who also persuaded me to go off with the horse; and being very drunk I kept on, and sold the horse to Middlecoff at Point Pleasant.” But no evidence was given on the trial tending to prove that any of those occurrences took place as the prisoner had represented. The prisoner confessed to several other witnesses, that he had sold the horse, and was sorry for what he had done. It was further proved, for the prosecution, that the prisoner’s true name, and the only one by which he had ever been known, was Joshua Starkie. —And this was all the evidence for the commonwealth.
    Ror the prisoner it was proved, that he was indebted to Mrs. Miller before mentioned, for the price of a coat and pantaloons, and that after being committed to jail in this case, he returned the coat to her.
    The cause was argued here in writing, by J. Hendrick for the petitioner. He cited 1 Hale’s P. C. 504; Id. 208; The King v. Banks, Russ. & Ry. C. C. U. 441.
    
      
      Larceny — Owner Induced by Fraud to Part with Chattel — Felonious Intent. — In Vaughn v. Com., 10 Gratt. 762, it is said: “If by fraud or device the owner (not intending to part with his right) be induced to place his property in the hands of another, who acquires possession with a felonious intent to convert it to his own use, the ‘taking’ and trespass are such as are required to complete the offence of larceny. See Starkie v. The Commonwealth, 7 Leigh 752.” See monographic note on “Larceny” appended to Johnson v. Com., 21 Gratt. 555.
    
   SUMMERS, J.,

delivered the opinion of the court. This case comes before us on an application for a writ of error to a judgment of the circuit court, on a verdict convicting the prisoner of horsestealing.

When the prisoner was brought up to receive judgment, his counsel moved the court to set aside the verdict and award him a new trial, on the ground that the evidence did not warrant the conviction, but shewed a ^breach of trust only. This motion being overruled, an exception was taken, and in the bill of exceptions the evidence is set out upon which the present application must be decided. It is deemed unnecessary to recapitulate that evidence, because it is peculiarly the province of the jury to determine the intent with which any act is done; and here the testimony fully warranted the conclusion that the prisoner obtained the use of the horse fraudulently, and with intent to steal him.

The ground urged by the prisoner’s counsel is, that the possession of the horse having been acquired by the consent of the owner, no subsequent disposition of the animal could amount to felony. The authorities to which he refers, we think, do not sustain him in the exclusion of the exceptions found in the modern cases. Larceny is defined in the early authors to be “the wrongful taking of goods with intent to spoil the owner of them, causa lucri.” But it is said that if the party is not guilty of a trespass in taking the goods, he cannot be guilty of a felony in carrying them away; and that in this case the consent of the owner excludes this essential feature of larceny. This, however, is a mistaken view of the subject. The temporary use of personal property for a special purpose does not change the possession, as 'shewn by Littleton, who says, % 71. “If I lend to one my sheep to dung his land, or my oxen to plough the land, and he kills my cattle, I may have trespass notwithstanding the lending.” The possession therefore was not changed by the permission to ride the horse a mile or two and return him, nor did the prisoner thereby acquire a special; property, or any legal possession. The: riding of the horse and selling him, under the circumstances shewn by the evidence,, was therefore the same invasion of the1 owner’s possession, as if the license fraudulently obtained had not been given; and1, the fraud was equivalent to force, actual or constructive.

sWe think the law well settled, that where a person obtains the goods of another by lawful delivery, without fraud,, although he afterwards converts them to his own use, he is not guilty of felony; but if such delivery be obtained by any fraud or falsehood, and with an intent to steal,, though under pretence of hiring, borrowing, or even purchase, where no credit is. intended to be given, the delivery in fact by the owner will' not pass the legal possession, so as to save the party from the guilt of larceny. Adopting these conclusions, the judges are unanimous in overruling the application for a writ of error.

Writ of error refused.  