of the offense is the conversion; it therefore must be distinctly charged. But the analogies of the indictment for embezzlement1 explain that even this allegation need not be expanded beyond the statutory terms; as, for example, it is sufficient to say that the defendant did "convert the same to his own use." 2 that the defendant was the bailee of one hundred and thirty ounces of gold dust,' which he converted to his own use, with intent to steal the same; the said gold dust being then and there the property, goods and chattels of one Francisco Gallardo.' There are no other averments showing the character or circumstances of the bailment, or that the defendant was in fact a bailee of gold dust. It was decided in the case of P. v. Cohen, 8 Cal. 42, that an indictment like this was insufficient, and the case of P. v. Peterson, 9 Cal. 313, was decided in the same way upon the authority of the former case. The remarks of the judge upon this point in the case of P. v. Cohen are rather applicable to another statute regarding certain officers who are charged with the custody of public moneys (Wood, Dig., art. 1927) than to the statute under which the indictment in that case was found (Wood, Dig., art. 1931); and there does not appear to be any authority for the conclusion that the legislature intended to use the word bailee, in the statute last referred to, in a limited sense, as designating bailees ‘to keep, to transfer or to deliver.' Any bailee who converts the property of which he is the bailee to his own use, with intent to steal the same, may undoubtedly be indicted for larceny under that statute. The decision that the indictment was insufficient was, however, correct, for the reason that it did not set forth the necessary facts to show that the defendant was a bailee of the property. The facts and circumstances which are necessary to constitute a complete offense must be stated with directness and certainty. Proof of the circumstances constituting the bailment must be made at the trial, and the essential facts to be proved should be stated in the indictment. So are the precedents of indictments under statutes substantially the same. 3 Chit. Crim. Law, 967; Com. v. Merrifield, 4 Met. 468. By the same precedents it appears that it is sufficient to state the fact of the conversion with intent to steal in the language of the statute, without specifying any par ticulars of the mode of conversion." Pages 600, 601. As to the authorities referred to by the learned judge near the close of this quotation, I cannot see that they are pertinent to the point, but perhaps I am mistaken. If, as precedents, they covered the precise point, I should adapt to the occasion the words of Seawell, J., sitting in the North Carolina court: "Although it is true that precedents are high authority as to what the law is, yet, in this case, they only prove that they contain these words; for it is certain that most of them contain many things which never were essential, and some they retain which long since have become useless." S. v. Sparrow, N. C. Term R. 93, 94. 1 Crim. Pro., II, §§ 322, 323. 2 P. v. Poggi, supra. But see Snell v. S., supra; Hoyt v. S., supra; [Reg. v. Ashwell, 16 Cox, C. C. 1; Reg. v. Holloway, 18 Cox, C. C. 631; Reg. v. Wynn, 16 Cox, 231; P. v. Campbell (Cal.), 59 Pac. R. 593; Mangum v. S., 38 Tex. Cr. R. 231, 42 S. W. R. 291; S. v. Kasper, 5 Wash. St. 174, 31 Pac. R. 636; S. v. Hopkins, 56 Vt. 250; P. v. Hazard, 158 N. Y. 727, 53 N. E. R 1129.] § 423. What the bailment. The bailment, in these cases, is the same as in others in the law.1 We saw, in another connection, that it takes place where, and only where, the specific thing delivered is to be returned - this is the test- either in a form to which it is to be changed, or in the form received, when the object of the trust is accomplished. The contract of bailment may be express or implied. If, by it, the title passes with the thing, there is no bailment. The conditional purchase and sale of an article on instalments, the ownership to remain in the vendor and possession to be in the vendee until all the payments are made, and in case of default the thing to be restored to its original possessor, constitute a bailment. And the forms of bailment are numberless. Whether or not a married woman can be a bailee, within these criminal statutes, is perhaps an open question, but probably she can be. Even at the common law she could always receive property, though in some circumstances only to transmit the ownership to her husband. She could be an agent. And she could commit the offense of common-law larceny. It is difficult, therefore, to perceive any just ground to preclude her from being a bailee for the statutory larceny, and committing it of the goods in her possession. The recorder of London in one case intimated, and perhaps ruled, that there cannot be a bailment which is procured by the bailee's fraud." And this accords with other rulings where the facts are open to inquiry." But in just prin 1 See the long note to the last section; Reg. v. Hassall, Leigh & C. 58, 8 Cox, C. C. 491; Krause v. Com., 93 Pa. St. 418, [39 Am. R. 762;] Reg. v. Tonkinson, 14 Cox, C. C. 603; Reg. v. Flowers, 16 Cox, C. C. 33.] 2 Powder Co. v. Burkhardt, 97 U. S. 110; Marsh v. Titus, 6 Thomp. & C. 29, 3 Hun, 550; Mallory v. Willis, 4 Comst. 76; [Reg. v. Helier, 18 Cox, C. C. 267; Bergman v. P., 177 Ill. 244, 52 N. E. R. 363; Caskey v. S. (Tex. Cr. R.). 50 S. W. R. 703.] 3 Crim. Law, II, § 857; Grier v. Stout, 2 Bradw. 602; Foster v. Pettibone, 3 Seld. 433, [57 Am. D. 530;] Reg. v. Hoare, 1 Fost. & F. 647; [Reg. v. McDonald, 15 Cox, C. C. 757.] 4 Phelps v. P., 72 N. Y. 334, 357; Bohannon v. Springfield, 9 Ala. 789; Newhall v. Paige, 10 Gray, 366. 5 Krause v. Com., supra. 6 Whitney v. McConnell, 29 Mich. 12; Dunlap v. Gleason, 16 Mich. 158, [93 Am. D. 231;] Henry v. Patterson, 57 Pa. St. 346. But see and compare Krause v. Com., supra. 7 Reg. v. Denmour, 8 Cox, C. C. 440; Reg. v. Robson, Leigh & C. 93, 9 Cox, C. C. 29. 81 Bishop, Mar. Women, §§ 699, 700. 91 id. 701; 2 id. 400. 10 Crim. Law, I, §§ 361-363; 1 Hale, P. C. 514, 516. 11 Reg. v. Hunt, 8 Cox, C. C. 495. 12 Ante, § 419. ciple, apart from the adjudications, it would not be unreasonable to refuse to permit a man to set up one fraud as a ground of escape from the consequences of another.1 § 424. Bailee's act of larceny. The elements of larceny at the common law are stated in another connection. Those of larceny by a bailee are in reason the same, except that in his case the statute dispenses with the trespass. It was once ruled by a single judge to be necessary to show some act of conversion inconsistent with the purpose of the bailment. This doctrine has been both affirmed and denied by other judges; but, where one gave money to another to buy, and bring in the latter's cart, coals for hire, and the person so intrusted bought them in his own name, and on his way with them abstracted some for his own use, it was held that, whichever view of the above point be taken, the conversion here, there being deemed to be a bailment of the coals, was adequate. And a carrier who undertakes to deliver, to persons named in a list, a boat's load of coals in his own cart, commits larceny as a bailee if he fraudulently sells some of them and appropriates the money to himself. In another case it was laid down that a carrier, receiving money to procure goods, becomes guilty of larceny of the money as bailee, if he fraudulently converts it to his own use, though he obtains and delivers the goods." 1 And see Crim. Law, II, §§ 264, 768. See further as to what is a bailment, Reg. v. Loose, Bell, C. C. 259; Reg. v. Bunkall, Leigh & C. 371, 9 Cox, C. C. 419; Reg. v. Davies, 14 W. R. 679, 14 Law Times (N. S.), 491; Hunt v. Wyman, 100 Mass. 198; Becker v. Smith, 59 Pa. St. 469; Reg. v. Cosser, 13 Cox, C. C. 187; Zschocke v. P., 62 Ill. 127; Reg. v. Oxenham, 13 Cox, C. C. 349; Hutchison v. Com., 82 Pa. St. 472; Coldwell v. S., 3 Bax. 429. A man on the ground, partly intoxicated and partly asleep, saw another, with whom he was acquainted, take from his pocket his watch, and made no effort to prevent it, believing the object to be to preserve the watch for him; this was ruled to constitute a bailment, sub jecting the bailee, who converted it to his own use, to indictment under the statute. Reg. v. Reeves, 5 Jur. (N. S.) 716. 2 Crim. Law, I, § 757 et seq. And see S. v. Stone, 68 Mo. 101; Krause v. Com., 93 Pa. St. 418, [39 Am. R. 762; Reg. v. Banks, 15 Cox, C. C. 450; S. v. Fisher, 38 Minn. 378, 37 N. W. R. 948.] 4 Reg. v. Jackson, 9 Cox, C. C. 505. Reg. v. Bunkall, Leigh & C. 371, 9 Cox, C. C. 419; [Reg. v. Holloway, 66 L. J. Q. B. 830, 77 L. T. 247.] 6 Reg. v. Davies, 14 W. R. 679, 14 Law Times (N. S.), 491; [Washington v. S., 106 Ala. 58, 17 S. R. 546; Holebrook v. S., 107 Ala. 154, 18 S. R. 109.] 7 Reg. v. Wells, 1 Fost. & F. 109. III. LARCENIES OF ANIMALS. § 425. At common law. As seen in another connection, most, not absolutely all, animals of which there may be ownership at the common law are the subjects also of common-law iarceny. There is, therefore, no such urgent occasion for the statutes within this sub-title as for those within the last, and they have not wrought consequences so wide. The statutes. The present English enactment on this subject, condensing the prior ones, is 24 and 25 Vict., ch. 96, § 10,— "Whosoever shall steal any horse, mare, gelding, colt, or filly; or any bull, cow, ox, heifer, or calf; or any ram, ewe, sheep, or lamb,- shall," etc." The South Carolina statute makes punishable "any person found guilty of the larceny of any horse, mule, cow, hog, or any other live-stock." And similar to these two, yet differing more or less from them and from one another, are the enactments in our other states.* § 426. Word to designate in indictment the animal."- In determining by what statutory word to designate the animal in the indictment, some discussions in an earlier chapter will be helpful. For example, the term "horse," primarily denoting the male, includes also, if it stands alone, mares and geldings. So, therefore, by the better opinion, it does in the statutory expression "horse, mare or gelding." But some would here restrict it, holding, under this expression, an indictment which employs the word "horse" not sustained by proof of a "mare" or a "gelding." While this rule prevailed in Eng 1 Crim. Law, II, §§ 771-779. 2 The prior statute of 7 and 8 Geo. 4, ch. 29, § 25, was in nearly the same words. But there were earlier enactments in forms perhaps less compact. See 2 East, P. C. 614-617. 3 S. v. Corley, 13 S. C. 1, 4. 4 S. v. Buckles, 26 Kan. 237; Hunt v. S., 55 Ala. 138; Lavenner v. S., 60 Ala. 60; Watson v. S., 55 Ala. 150. In Texas, the words, differing from the earlier form (ante, § 248), are: "If any person shall steal any cattle he shall be punished," etc. Duval v. S., 8 Tex. Ap. 370, 371; [S. v. Gilbert, 68 Vt. 188, 34 Atl. R. 697.] 998 6 Ante, §§ 246c-2-18. 7 Baldwin v. P., 1 Scam. 304; Reg. v. Aldridge, 4 Cox, C. C. 143; [S. v. Gooch, 60 Ark. 218, 29 S. W. R. 640; P. v. Monteith, 73 Cal. 7, 14 Pac. R. 373; P. v. Pico, 62 Cal. 50; Smythe v. S., 17 Tex. Ap. 244.] 8 Ante, §§ 246c-248; P. v. Butler, 2 Utah, 504; P. v. Sensabaugh, 2 Utah, 473. Mule. That this word will include a "mule," see Allison v. Brookshire, 38 Tex. 199; that it will not, see Com. v. Edwards, 10 Phila. 215. 9 S. v. Buckles, 26 Kan. 237; [S. v. McDonald, 10 Mont. 21, 24 Pac. R. 5 And compare with post, §§ 440- 628, 24 Am. St. R. 25.] In Georgia the code requires the sex to be des 442. 2 land, a charge of stealing a "cow" was adjudged not to be sustained by proof of the larceny of a heifer. But in locali ties and circumstances not governed by this rule, the word designating an animal includes the young with the old; as, a mare filly is a "mare," a pig is a "hog," a heifer is a "cow," and a calf is within the term "cattle."5 Under the present Texas statute, the words of which are simply "any cattle," the allegation need not contain this word "cattle," but merely to designate the animal by its species as, a "calf," "steer," "ox," or the like is sufficient." On the other hand, if the pleader chooses, he may say, instead of this, "one head of neat cattle," "one beef cattle," or the like. He must not create a variance; and it will be such if the allegation is one of "beef steer," and the proof is of only a "steer," 10 or of a "cow" and the evidence shows the animal to have been a "bull,"" or if he . misdescribes the color.12 The words "a yearling," and no more, are not sufficient. 13 § 427. Value.-A rule pervading the entire procedure in larceny is that the value of the thing stolen must be alleged ignated. Taylor v. S., 44 Ga. 263; [Brown v. S., 86 Ga. 633, 13 S. E. R. 20; Nightingale v. S., 94 Ga. 395, 21 S. E. R. 221.] See ante, § 248; Marshall v. S., 31 Tex. 471. 1 Rex v. Cook, 1 Leach, 105, 2 East, P. C. 616. 2 Rex v. Welland, Russ. & Ry. 494. Ante, § 247, note. [Where the indictment charged stealing of "chick. ens," it was supported by proof of stealing "hens." S. v. Bassett, 34 La. An. 1108.] 4 Parker v. S., 39 Ala. 365. And see Watson v. S., 55 Ala. 150; [S. v. Crow, 107 Mo. 341, 17 S. W. R. 745.] 5 Grant v. S., 3 Tex. Ap. 1. "Id., at p. 5: Robertson v. S., 1 Tex. Ap. 311. And see post, § 440: [Smith v. S., 24 Tex. Ap. 290, 6 S. W. R. 40. See also Sanders v. S., 86 Ga. 717, 12 S. E. R. 1058; S. v. Baden, 42 La. An. 295, 7 S. R. 582.] 7S. v. Murphy, 39 Tex. 46; [Matthews v. S. (Tex. Cr. R.), 51 S. W. R. 915; S. v. Barkuloo, 18 Wash. 141, 51 Pac. R. 9 That the word cattle" alone would be too indefinite, see post, § 440; [S. v. Bookhouse, 10 Wash. 87, 38 Pac. R. 862; S. v. Laun, 80 Mo. 241; S. v. Bowers (Mo.), 1 S. W. R. 288. But see McIntosh v. S., 18 Tex. Ap. 284; Walton v. S. (Tex. Cr. R.), 55 S. W. R. 566.] 10 Cameron v. S., 9 Tex. Ap. 332. 11 S. v. McMinn, 34 Ark. 160; [Terr. v. Martinez (Ariz.), 44 Pac. R. 1089. 12 Courtney v. S., 3 Tex. Ap. 257; Wolf v. S., 4 Tex. Ap. 332. 13 Stollen werk v. S., 55 Ala. 142. And see Rivers v. S., 57 Ga. 28; Alderman v. S., 57 Ga. 367. [The statutory enumeration of different animals applies to live animals only. Golden v. S., 63 Miss. 466; P. v. Smith, 112 Cal. 333, 44 Pac. R. 663.] |