where property is delivered with the intention of parting with it altogether (that is, by giving the title as well as the possession), the offense is that of false pretenses. On the other hand, if the possession is parted with, and not the right of property, the offense is that of larceny. In Commonwealth v. Barry, 124 Mass. 325, the rule is thus briefly stated: "If the possession is fraudulently obtained with intent on the part of the person obtaining it to convert the same to his own use, and the person parting with it intends to part with his possession merely, and not with his title to the property, the offense is larceny." In Murphy et al. v. The People, 104 III. 528, the same rule is announced, with a mere change of expression. It was said: "If the owner of the goods alleged to have been stolen parts with both the possession and the title to the goods to the alleged thief, then neither the taking nor the conversion is felonious. It can but amount to fraud. It is obtaining goods under false pretenses." To the same effect is People v. Morse, 99 N. Y. 662, 2 N. E. 45; Stinson v. The People, 43 Ill. 397; 2 Arch. C. R. P. L. 372; Clark & Marshall, 2d vol. 710. It will be observed that all of these cases are fully discussed in the recent cases of State v. Anderson and State v. Buck, in which the rule as announced fully met the approval of this court. In Murphy et al. v. The People, 104 IL, and Stinson v. The People, 43 Ill., supra, the further distinction was made between these two offenses that where "the owner parts with the possession voluntarily, but does not part with the title, expecting and intending that the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back, and make the taking and conversion a larceny."

It is ably and earnestly urged by counsel for appellant that under the line of authorities as indicated the facts developed in this case simply constitute the offense of obtaining property under false pretenses. We are unable to give our assent to this contention. It is urged by appellant that the railroad company had a special property in the goods delivered to Rector, and that in delivering the goods to him it surrendered its entire title or special ownership; hence the case should fall within the rule of the cases herein referred to that, where an owner voluntarily parts with his title to the property, and not only the possession, the offense is that of false pretenses. In our opinion, the argument of counsel for appellant is predicated upon an erroneous conception of the relation of the railroad company and Rector to the property charged to have been stolen. While it may be said that the railroad company had such a special interest in this property as to make the stealing from it larceny, yet 88 S.W.-2

their dominion over the property was far from being absolute. The railroad company is a common carrier. They had carried these goods to their place of destination, and had the possession of them for a limited purpose that was the delivery to the consignee or their authorized agent. The appearance of Rector, who had formerly been in the employ of the transfer company, in his usual way, with his wagon, upon the theory of the defense, must be treated as a representation or pretense that he was authorized to receive the goods of the shoe company. Upon this representation the delivery was made, but it was made for a special purpose, and upon an implied understanding that he would deliver the goods to the shoe company. It is clear under the facts in this case that the railroad company did not pass any title to this property, but they merely delivered the possession of these goods for a particular purpose. The dominion of the railroad company over this property was by no means absolute. They were simply intrusted with the custody of the property for a particular purpose. Its delivery of the possession of the property to Rector was accompanied with the implied condition or understanding that such possession was delivered for the purpose of the delivery of the goods to the shoe company.

There is a well-recognized distinction between obtaining possession of property from the absolute owner by false and fraudulent representations and the obtaining of property from other persons who simply have the custody and possession of the property as the agent or servant of the owner. Mr. Greenleaf, in treating of this subject, makes clear this distinction. In discussing this proposition he says: "A felonious intent may be proved by evidence that the goods were obtained from the owner by stratagem, artifice, or fraud. But here an important distinction is to be observed between the crime of larceny and that of obtaining goods by false pretenses. For, supposing that the fraudulent means used by the prisoner to obtain possession of the goods were the same in two separate cases, but in the one case the owner intended to part with his property absolutely, and to convey it to the prisoner, but in the other he intended only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself, the latter case alone would amount to the crime of larceny, the former constituting only the offense of obtaining goods by false pretenses. Thus, obtaining a loan of silver money in exchange for gold coins to be sent to the lender immediately, but which the prisoner had not and did not intend to procure and send, was held no felony, but a misdemeanor; and su it was held where the prisoner obtained the loan of money by means of a letter written by himself in the name of another person

known to the lender. But where the goods were obtained from the owner's servant, the prisoner falsely pretending that he was the person to whom the servant was directed to deliver them, it was held to be larceny. For in the two former cases the owner intended to part with his money, but in the latter case the taking from the servant was tortious, he having only the care and custody of the goods for a special purpose." Greenleaf's Ev. vol. 3, § 160.

Mr. Wharton, in his recognized standard work upon Criminal Law, fully demonstrates this proposition. He said in the text: "Suppose A. goes to B. and says, 'I am C., sell me these goods,' and B. delivers the goods to A. believing A. to be C., this being an essential incident of the contract, does any property pass to A.? The better view is in the negative, there being no contract between A. and B. If this be correct, then it is larceny in A. to take goods on this false personation; though there are authorities to the effect that the case is not larceny, but false pretenses. If the pretense be not false personation, but false statement of means, then, as there is a contract of sale, the case is false pretense, and not larceny. And where A. says, 'I am sent by C. to carry the goods to him,' which is false, and thus obtains only possession of the goods, this is larceny in cases in which B. intends to part only with the possession of the goods to A. But here we encounter a subordinate distinction. Suppose A., pretending to be C., goes to B., and fraudulently obtains from B. certain goods of C., which are in B.'s hands as bailee. Is that larceny? It certainly is, because B. has no intention of passing the property in the goods to A., or to any one; he (B.) considering himself to have no property in the goods to pass. This distinction has been vindicated in Massachusetts the following case: 'Sanderson had left his watch at a watchmaker's to be repaired, and the defendant went to the shop, pretending to be Sanderson, asked for the watch, paid for the repairing, and took the watch with a felonious intent.' "These acts,' said Chapman, J., 'constitute larceny at common law.' The case is like that of Rex v. Longstreet, 1 Mood. C. C. 137. The defendant in that case went to a carrier's servant, and obtained from him a parcel by falsely pretending to be the person to whom it was directed. It was held to be a larceny, because the servant had no authority to deliver it to him, so that no property passed to him but the mere possession feloniously obtained. So in this case the watchmaker had no authority to deliver the watch to the defendant, and the latter obtained no property in it, not even the qualified property of a bailee, but a mere felonious possession, which is the essence of the crime of larceny." Wharton's Crim. Law, vol. 1, § 888, and cases cited. In Steen v. Harris, 81 Ga. 681, 8 S. E. 206, the rule is clearly and correctly

in

announced as to the delivery of possession for a particular purpose. The Supreme Court of Georgia, in discussing the Harris Case, which in some of its features is very similar to the case at bar, thus stated the law: "The rule is that if one, meaning to steal another's goods, fraudulently prevails on the latter to deliver them to him, under the understanding that the property in them is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat. But if, with the like intent, he fraudulently gets leave to take possession only, and takes and converts the whole to himself, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained covers no more than the possession.' 1 Bishop, Crim. Law, § 583, and authorities there cited. In this case Harris fraudulently represented to High & Ryan's Sons that he was the agent of Moore & Marsh. They did not sell him the goods, nor did they intend the title to go into Harris; but they simply delivered him the custody of the goods, to be delivered by him to Moore & Marsh. He having converted the proceeds of the sale of the boxes to his own use, he was guilty of larceny. The title still remained in the vendor. Harris got the custody of the goods wrongfully and fraudulently." In State v. Lindenthall, 5 Rich. Law, 237, 57 Am. Dec. 743, it was ruled that a person who obtained the possession of goods by consent of the owner for one purpose, such as hiring or carrying, with the intent to steal, and consummates that intention partly or entirely by converting the goods to his own use, is beyond doubt guilty of larceny.

In the case at bar Rector obtained the goods from the railroad company for a particular purpose that of delivery to the shoe company. He acquired no sort of title or ownership to the property, but a mere bare possession. The authority of the railroad company in respect to the goods in dispute was limited. They were only authorized to deliver the possession to the consignee or its authorized agent.

In support of the contention by appellant we are cited to the case of State v. Kube, 20 Wis. 217, 91 Am. Dec. 390. The facts in that case somewhat distinguish it from the case at bar. In that case an express agent had a package for Christiana Kube. John L. Kube, her husband, claimed the package for his wife, and by false representations induced the agent to believe that a mistake was made in the address of the package, and thereby secured the absolute delivery of it to him for his wife. It will be observed that the delivery to the defendant, John Kube, for his wife, was absolute, not coupled with any conditions or implied contract that he would deliver the package to the true owner. Neither the defendant nor his wife were the owners of the package, but the agent parted

absolutely with the package, believing that defendant's wife was the owner of it, and that he had delivered it to the proper person. The offense in that case consisted of false representations as to the true owner of the package, and the absolute dominion over the property was thereby obtained. In the case at bar the offense consisted of obtaining possession of the property for a particular purpose that of delivery to the true owner, the shoe company. It may be said that the railroad company thought and believed that it was delivering the goods to a person who was authorized to receive it, and no doubt that was true; but the delivery by the railroad company to Rector was not intended to grant to him absolute dominion over the property, but was limited to a particular purpose-that of delivery to the shoe company-who was known to the railroad company as the owner of the property. In other words, embodying one of the illustrations of Wharton, Rector says, "I am sent by the shoe company to get its goods," which was false, and thus obtained only possession of the goods for the purpose of delivering them to the shoe company. That is larceny, for the reason that the railroad company was only authorized and only intended to deliver a bare possession for the purpose of having the goods delivered to the consignee.

This brings us to the consideration of the second proposition-that the indictment is insufficient to support the judgment of conviction. This contention is predicated upon the failure of the indictment to charge that the property was stolen in Illinois and brought into this state. Section 2362 expressly provides: "In any such case the larceny may be charged to have been committed, and every such person may be indicted and punished in any county into or through which such stolen property shall have been brought." If the allegations contended for by appellant "that the property was stolen in Illinois and brought into this state" are essential to the validity of an indictment or information for such offense, it must necessarily follow that the provision of the statute which authorizes the charging of the larceny to have been committed in any county into or through which such stolen property shall have been brought is void, and of no effect. The statute, substantially, upon which the charge in this cause is based, was enacted by the Legislature at a very early period in the history of this state. This court at a very early period of its organization had in judgment the validity of this statute in the case of Hemmaker v. State, 12 Mo. 453, 51 Am. Dec. 172. Napton, J., in that case, after reviewing a number of causes in other jurisdictions, in which it was held that offenses of this character committed in other states or foreign countries were not cognizable in the courts of the state to which the property had been brought, said: "We are not under the necessity of

deciding the question which these cases present. Our statute was obviously intended to punish offenses committed against our criminal laws, and not those which were committed without jurisdiction of the state. If the Legislature think it expedient to declare that a person who is guilty of grand larceny in another state or country, and brings within our jurisdiction the stolen goods, shall be considered as guilty of grand larceny here, it is clearly within their constitutional power to make such enactment. In the determination of the character of the offense there is no necessity for inquiring what may be larceny under the laws of the country where the offense was committed. The Legislature punish the offense committed in this state by bringing the stolen property into it, and in doing so they merely codify a settled principle of the common law applicable to different counties, and extend it here to neighboring states and foreign countries. The case of People v. Burke, 11 Wend. 129, is an authority in point upon a statute exactly like our own." In State v. Williams, 35 Mo., loc. cit. 232, 233, this court again made reference to this statute, and very briefly thus stated its conclusions: "Whether the crime of larceny committed in one state can be transplanted with the goods into another state, so as to become an offense against and punishable in the latter state, is a mooted question, and has given rise to many conflicting opinions. But no such question can arise in this case, for it is expressly authorized by the third section of the ninth article of chapter 50 of our act relating to crimes and punishments. Rev. Code 1855, p. 637." Again, in State v. Butler, 67 Mo. 59, the validity of this statute was called in question, and its validity was maintained, and the conclusions as reached in the case of Hemmaker v. State, supra, were fully approved. In all three of these cases, in which there was a conviction by the trial court, the judgments were affirmed, and we have the original records now before us, and in none of them do the allegations contended for by appellant that the property was stolen in another state and brought into this state appear in the indictment.

In the disposition of this proposition we might be content by simply announcing that the cases to which we refer must be treated as decisive of the question now under discussion. However, it may be further said in State v. Butler, supra, the case of People v. Williams, 24 Mich. 156, 9 Am. Rep. 119, is cited with approval, and gives full support to the correctness of the conclusions announced by this court upon this statute. The provisions of the Michigan statute upon this subject were substantially the same as ours. Judge Cooley, in that case, responding to the challenge to the validity of the statute, in an able, clear, and exhaustive discussion of the proposition, fully met and answered every contention urged against it.

After a careful and logical discussion of the purposes of the statute, and fully stating the broad grounds upon which its validity should be maintained, the learned and distinguished jurist then sums up his conclusions upon the question in judgment before him. He said: "Now, it may be true that this wrong would not have been an offense within this state at the common law; but that does not prevent its being made so by statute. Many trespasses upon individual rights are made punishable because the interest society has in suppressing such disorders is such that they may properly be treated as offenses against society. The present is a case of trespass upon private right, begun, indeed, in another state, but continued into our own, and which the paramount law of the land requires that we should see righted on demand of the party aggrieved. The persistence in the wrong here, then, as against the right of one whom the state is bound to protect to the full extent that it must protect one of its own citizens, is not only not a matter of indifference to the state, but is a flagrant contempt of its authority; and it is eminently proper that the state should treat it as a crime, if in the opinion of the Legislature the peace and good order of the state demand its punishment. That such is its opinion is proved by the statute in question." Whatever doubts may have been entertained as to the validity of this statute, they are certainly removed by the clear and able discussion of the proposition by Judge Cooley.

It is very earnestly urged and ably presented that the failure to charge in the indictment that the property was stolen in Illinois and brought into this state is misleading to the defendant, and does not comply with the provisions of the Constitution, which guaranties to him the right to know the nature and character of the charge preferred against him. In response to this argument it is sufficient to say that when a defendant is charged with stealing property, and the property is described, even though it does not aver the particular place of the stealing other than the county or city in this state to which the property is brought, seems to us as rather a full notification of the nature and character of the charge, and is amply sufficient to require the defendant, in order to meet such a charge, to summon to his aid proof of every nature and character, in whatever state it may be found, to rebut such charge, and, if in possession of the property, to show that such possession was honestly acquired. We see no legal reason for overturning the results of the cases heretofore referred to which were decided by this court upon indictments similar in form to the one in the case at bar.

This brings us to the only remaining proposition presented to our consideration; that is, the refusal of the court to instruct the

jury that if "they believe and find from the evidence that the witness Rector had no intention to take, steal, and carry away the property when he obtained it, then he was not guilty of larceny, nor was the defendant guilty of larceny." Upon the facts developed at the trial of this case we have reached the conclusion that there was no error in the refusal of this request. The testimony as introduced by the state is undisputed that the witness Rector was the instrument selected by the defendant to accomplish his fraudulent and felonious intent of stealing the property as charged in the information, and permanently depriving the owner of it. He furnished the wagon, directed Rector how to proceed in order to obtain this property, and upon the testimony as disclosed by the record the felonious intent and design entertained by the defendant in this case is made too clear for discussion. Whatever was done by Rector must be treated as the act of this defendant, and, even though Rector's mind was inactive, and he was ignorant of the purposes of his act, if defendant, Mintz, directed the act to be done, and had the felonious intent of stealing the property and converting it to his own use through the act of his instrument, Rector, then the act of Rector and the intention of the defendant, Mintz, should be brought together, and the commission of the act must be treated as though it was executed by the defendant, who directed it. In other words, if defendant, Mintz, entertained the felonious intent and design of stealing this property, and directed Rector to do such acts as would result in obtaining the property, without informing Rector as to his intent, and by reason of the commission of the act by Rector the property is obtained and converted by the defendant, Mintz, to his own use, we are unwilling to say that this would not constitute larceny on the part of the defendant, Mintz. If Rector had no design or intent to steal the property obtained by him at the time of taking such property, and he was simply, as claimed by appellant, carrying out the purposes of the defendant, Mintz, without any information as to what Mintz's purposes were, then there is no difference in principle in the use of Rector by the defendant as an instrument to remove the property from the possession of the owner, and in using any inanimate instrument in reaching out-such as tongs, pinchers, or other instruments-to remove the property sought to be stolen from its location. The defendant, Mintz, having directed Rector in the commission of the act of taking the property, it must be held that the intent of defendant, Mintz, accompanied Rector in the commission of such act.

We have carefully considered the instructions given by the court upon which this cause was submitted to the jury. They fully cover every feature of this case to which the testimony was applicable, and, finding no

reversible error upon the record as presented, the judgment of the trial court should be affirmed; and it is so ordered.

GANTT, J., concurs. BURGESS, P. J., absent.

STATE v. HEUSACK.

(Supreme Court of Missouri, Division No. 2. May 16, 1905.)

1. HOMICIDE-CORPUS DELICTI.

On a prosecution for murder, evidence examined, and held to establish the corpus delicti. 2 SAME-IDENTITY OF MURDERER.

The evidence held sufficient to identify de fendant as the murderer.

3. WITNESSES-COMPETENCY-CONVICTION OF CRIME.

Under Rev. St. 1899, § 4680, providing that any person who has been convicted of a criminal offense is, notwithstanding, a competent witDess, but that the conviction may be proved to affect his credibility, proof of a former conviction for a misdemeanor is admissible.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, § 1127.]

4. CRIMINAL LAW-OTHER CRIMES.

Under Rev. St. 1899, § 4680, the state, on a prosecution for crime, was entitled to ask the defendant on cross-examination as to his previous conviction for crime in another state. [Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, § 1147.]

5. HOMICIDE-INSTRUCTIONS.

On a prosecution for homicide, where there were no eyewitnesses of the killing, and nothing to induce the jury to believe there were, an objection to a portion of a charge that it was not necessary to prove the defendant guilty by the testimony of "the" witnesses who may have seen the offense committed, on the ground that it was an implication that eyewitnesses saw the defendant commit the crime, but that in the case at bar it was not necessary to bring them into court, was hypercritical.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Henry Heusack was convicted of murder in the first degree, and he appeals. Affirmed.

Chas. J. Maurer and Chas. P. Johnson, for appellant. H. S. Hadley, Atty. Gen., and John Kennish, Asst. Atty. Gen., for the State.

GANTT, J. The defendant was indicted at the April term, 1904, of the circuit court of the city of St. Louis, for the murder in the first degree of August Raphael at said city on the 16th day of March, 1904. The cause was regularly assigned for trial to division No. 8 of said court. The defendant was formally arraigned upon said indictment, and entered a plea of not guilty thereto, and on the 10th day of May, 1904, was put upon his trial, and convicted of murde: in the first degree. Motions for a new trial and in arrest of judgment were filed in due time, heard, and overruled, and exceptions properly saved, and from the judgment pronounced the defendant appealed to this court.

The evidence upon which the verdict and judgment are based was circumstantial, and tended to prove the following facts: Au

gust Raphael was murdered in his own home at No. 2213 South Tenth street, in the city of St. Louis, between the hours of 11 a. m. and 1 p. m. on the 16th day of March, 1904. He was then 77 years of age, and his family, residing with him at that time, consisted of his wife 83 years of age, and their grandson, Herman Raphael, about the age of 17 years. The defendant, Henry Heusack, was the son-in-law of Raphael and his wife, and lived with his wife and son at No. 1759 South Eighteenth street, in said city. Heusack was addicted to the excessive use of intoxicating liquor, and was somewhat under its influence on the day of the homicide. The house in which Raphael lived was located on the west end of a lot 25 feet wide and extending from Tenth street on the east to the alley on the west. The alley runs north and south, and connects with Ann avenue on the north and Shenandoah street on the south. On the east end of said lot, fronting on Tenth street, there was a building covering the full width of the lot, consisting of three rooms. This building was owned by Raphael, the deceased, and was rented and occupied by a club of 12 or 15 young men, who met there for social purposes two or three evenings each week. The Raphael home fronted on the alley, and to the west. It was a one-story house, with a basement. The basement was not occupied by the Raphael family. They lived in the first story, consisting of three rooms; the front room being next to the alley, a door opening from it to the middle room on the east, and a door from the middle room east to the kitchen. The kitchen and a kind of porch outside formed the east end of the Raphael home. Between this east end of the Raphael home and the west end of the building used by the club there was an open space from 30 to 50 feet in length. But in this space there was a shed on the south, and an ash box, used as a flower bed, on the north; so that there was not much open space left. This space is referred to by the witness as the yard. There was a fence on the north side of this property. Entering the Raphael house from the alley (which was the only way it could be reached from the outside save by going through the clubrooms) there were four or five steps up to what was called a "gangway" or "aisle." This gangway was about four feet wide, extending along between the house and the fence on the north side. There was an outer door to the front room on the east, and another outer door on the north of the kitchen along this gangway. The gangway led from the alley back to the yard, and the members of the club sometimes passed back and forth by that way. There was a door in the partition between the kitchen and the middle room, and another from the middle to the front room. In the northwest corner of the front room there was a bed, in which the old lady, Mrs. Raphael, was lying sick, hav