
    Court of Appeals.
    
      June, 1885.
    PEOPLE v. MORSE.
    (Affirming 8 N. Y. Crim. Rep. 104.)
    Larceny and False Pretenses under Revised Statutes.— Evidence..—Judge’s Charge.
    Upon the trial of an indictment, in determining whether the complainant intended to part with the possession and title of the money, or simply intended to pledge it. as security, retaining the title thereto, the court is not confined exclusively to the instrument executed by the parties at the time, where that instrument was obtained by fraud, and was one of the tricks and devices by which the money was obtained. It alone is not conclusive as to the precise intention and agreement of the parties, but it should be viewed in the light of all the facts in the case.
    People®. McDonald, 43 W. T. 61; Smith®. People, 53 N. T. Ill; Hildebrand ®. People, 56 lb, 894; People «. Loomis, 67 lb. 329; Zink ■ a. People, 77 lb. 114; Thom ®. Turck, 94 lb. 95, followed as to distinction under Revised Statutes, between procuring money by false pretenses, and grand larceny.
    The judge’s charge in that regard, in this case, reviewed and approved.
    Appeal from a judgment of the General Term of the Supreme Court of the First Department, affirming a judgment of the court of General Sessions of New York county, convicting defendant, Carrie R. Morse (otherwise known as Minnie West), of grand larceny, alleged to have been committed October 12, 1882.
    (The facts and points of counsel appear supra, p. 104.)
    
      Henry A. Mayenborg, for appellant.
    
      Randolph B. Martine, district attorney, and De Lancey Nicoll (assistant), for the people, respondent.
   Earl, J.

There is no dispute but that the defendant was guilty of a crime in obtaining and appropriating the money of Miss Wilson ; but her counsel claims that the crime was procuring the money by false pretenses, and not grand larceny, of which she was convicted. It is conceded by the district attorney that if Miss' W'ilson intended to part not only with the possession, but also with the title of the money, then the defendant could not be properly convicted of grand larceny, but could be convicted only of the crime of false pretenses. "It „is also conceded by the defendant’s counsel that if Miss Wilson intended to part with the possession of the money only for a particular purpose, and not with the title, then upon the facts of this case the defendant was properly convicted of grand larceny. The rules of law, applicable .to such a case as this, have been so clearly laid down and so thoroughly discussed in various cases in this court, that a further statement or examination of them at this time is wholly unnecessary. People v. McDonald, 43 N. Y. 61; Smith v. People, 53 Id. 111 ; Hildebrand v. People, 56 Id. 394; People v. Loomis, 67 Id. 329 ; Zink v. People, 77 Id. 114; Thorn v. Turck, 94 Id. 95.

Ho just complaint can be made of the charge of the trial judge to the jury". He charged: “ If you are satisfied from the evidence, beyond any reasonable doubt, that it was the design of the defendant, Carrie E. Morse, to fraudulently and feloniously obtain the complainant’s money, and convert it absolutely to her own use, without the complainant’s consent, and that, in pursuance of that design, the defendant so obtained $600, by the means and in the manner and under the circumstances testified to by the people's witnesses, with the intention of converting the money absolutely to .her use, without the consent and against the will of the complainant, and that the complainant did not intend to part with the $600, absolutely, but only gave the accused temporary possession thereof as security for the, faithful performance of the duties of Hattie M. Herder, I charge you that you can arid ought to convict the defendant, of grand larceny, otherwise she should be acquitted. Did she part with the money for the specific purpose of securing the defendant against any loss by reason of the acts of Hattie M. Herder while in her employ? Was that the only reason she parted with it? Was that the intention she had when she gave up the physical possession of it to the defendant? If such you find to be the fact, and then yon further find, —as I have instructed you here,—that all the acts disclosed by the evidence do constitute a scheme, a trick and device for the purpose of feloniously getting the money, then your verdict shall be guilty,” and further to the same effect.

The intention of Miss Wilson must be derived from all the facts of the case. Did she intend to part, not only with the possession but with the title of the money, or did she simply intend to pledge the money as security, retaining the title thereto ? In determining these questions we are not confined exclusively to the instrument that was executed between Miss Wilson and the defendant. at the time of the delivery of the money, because that instrument was obtained by fraud, and was one of the tricks and devices by which the crime was consummated, and it is not conclusive as to the precise intention and agreement of the parties upon the trial of the defendant for the crime. But in that instrument it is stated that the $600 was deposited as security for the faithful performance of the duties of Miss Herder; and it is apparent from the instrument itself that that was the sole purpose for which the deposit was made. It is stated in the instrument that if Miss Herder or the defendant should wish to terminate the contract, either party should give thirty days’ notice, in which case it is provided that “this $600,” the identical $600, should be returned. It is further stated that interest at six per cent, should be paid by the defendant on “ this ” identical $600, during the time it remained in her hands. But, reading the instrument in the light of all the circumstances accompanying and preceding its execution, we think it was competent for the jury to find that Miss Wilson did not intend to part with the title to the $600, and that, therefore, their finding that the defendant was guilty of grand larceny can be upheld.

The judgment should be affirmed.

All concur.  