People v. Salorse

McKee, J.: This case arises out of an information against the defendant for embezzlement. Conviction followed the trial of the defendant, and on this appeal from the judgment and order denying his motion for a new trial, it is contended on his behalf, that the conviction is erroneous, because the offense committed, if any, was larceny, not embezzlement.

The evidence went to prove that the defendant in March, 1879, in the county of San Benito, hired a horse from its owner for a term of two months, and he agreed that he would use it exclusively in San Benito County, and redeliver it to the owner at the end of the term, and then pay for its hire. Under this contract the horse was delivered to the defendant, who used it for about a month in San Benito County, but after-wards—some time in April, 1879—he took the horse out of the county, without the consent of the owner, into the counties of Merced, Stanislaus; and San Joaquin, where he tried to dispose of it by sale or raffle, and he never returned the horse to its owner nor settled for its hire, but converted the same to his own use.

1. The proofs did not make out a case of larceny. Larceny is the felonious stealing, taking, carrying, or driving away the personal property of another. (P. C., § 484.) When the act of taking co-exists with a felonious intent to deprive the owner of his property, the offense is complete; hence, if at the time of receiving the horse from its owner the defendant had conceived the fraudulent intent to take it and convert it to his own use and to deprive the owner of it, and did, in fact, obtain the possession for that purpose, he would have been guilty of larceny, because the fraudulent receipt of the property of another, amounts in law to a taking without his consent. But here there was no charge against the defendant and no proof that the original taking was felonious. The [142]horse was intrusted to the defendant by the owner for a lawful purpose. There was nothing in the evidence which tended to prove that the defendant received it otherwise than for that purpose; therefore the delivery was such as to divest the owner of the possession of his horse and to vest it in the defendant, for the time expressed in their contract, to be restored at the end of that time to the owner in San Benito County. In taking the horse for that purpose, the defendant became bailee of it for the owner, and continued to hold it as such until he absconded from the county, taking the horse with him. That act, being in violation of his duty as bailee and connected with the fraudulent intent to appropriate the horse, and to deprive the owner of it, as the jury found by their verdict, constituted embezzlement and not larceny.