People v. Montarial

VAN FLEET, J. Appellant makes hut one point in support of his appeal—that the evidence did not warrant his conviction of grand larceny, but established, if anything, embezzlement instead.

At the time the money was taken it was in two trunks belonging to defendant, five hundred dollars being in one and three hundred dollars in the other, where it had been placed by Paillac, to whom it belonged, some time before, for safekeeping, under these circumstances: Paillac and the defendant were fellow countrymen and intimate friends, and roomed together at the same house; they had two rooms, one upstairs and the other down, but their intimacy was such that they used them in common, sleeping together in the lower room, and keeping wearing apparel and other articles in the upper one—each having like access to both, and indifferently carrying the keys; they had been thus situated for several years; Paillac, who had accumulated several hundred dollars, had been in the habit of keeping it buried in the ground in a secret hoard; observing that the defendant kept his money in his trunk, a discussion arose between them as to the safest way to keep money; which one of the two first suggested the idea of placing Paillae’s money in the defendant’s trunks does not clearly [693]appear, Paillac, who testified on the subject, being unable to speak English, and his evidence being given through an interpreter, and leaving the fact in some confusion; at one point he states that the suggestion came from himself, but elsewhere his statements indicate that it was made by defendant. It does appear from his evidence, however, that in the conversation defendant assured Paillac that he "might as well put the money in the trunk”; that it was "safer there than any bank,” and that Paillac had better put his money there, since the latter’s trunk was old and the lock broken; telling him, “Don’t be afraid, it will be a good, safe place”; and further, as expressed by the witness, "he said that some time I [Paillac] might die, or an accident fall to me, or I might fall off the wagon and get killed, and then I [defendant] will know where the money is.”

The result of the conversation was that Paillac dug up his treasure and placed it in defendant’s trunk. This was something over two years prior to the taking. At that time Paillac had some five hundred dollars, and he put that amount in a purse, securely tied up in a handkerchief, and handed it to defendant, who in Paillac’s presence placed it in the trunk in the upper room, where it remained undisturbed, except when inspected by Paillac, until taken by defendant. Subsequently to this first deposit the three hundred dollar fund was accumulated by Paillac. This latter was the fund to which Paillac resorted for current needs from time to time—the five hundred dollars being kept intact— and it was kept in the trunk which stood in their sleeping-room downstairs. Like the first it was always kept in a package securely done up by Paillac himself, and which he would merely hand to the defendant to be placed in the trunk in his presence; the defendant, as the evidence clearly indicates, never being given the right to handle or disturb either package in any way, except in the presence of Paillac, and then only for the purpose of handing them out when wanted by the latter, or replacing them at his direction. And, while defendant carried the keys to the trunks, they were always at the call of Paillac whenever he wished to get at his money; the defendant on such occasions unlocking the trunks for the purpose and handing out the money, or putting it back, as the case might be; and the evidence indicates that while Paillac had confidence in his friend, it did not