Commonwealth v. Rubin

• Decision Date: 02 March 1896
• Citation: 43 N.E. 200,165 Mass. 453
• Parties: COMMONWEALTH v. RUBIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 453

43 N.E. 200

COMMONWEALTH v. RUBIN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 2, 1896

COUNSEL

Fred N. Wier, Dist. Atty., for the Commonwealth.

A.T Johnson, for defendants.

OPINION

HOLMES J.

The defendants have been convicted on a count for larceny of a horse, the property and in the possession of one Perkins, in Natick, in the county of Middlesex. The question presented by the exceptions is whether the evidence justified a conviction. The horse had been bought for Perkins, and a boy had been engaged by Perkins's servant to take it from the sale stable in Boston to Framingham. On his way the boy fell in with the defendants, driving, and they took him into their wagon. While driving they said they would deliver the horse for him. He assented. They paid him what he was to receive from Perkins, and he left the horse with them, at Wellesley in the county of Norfolk. The defendants misappropriated the horse, which afterwards was found on their premises at Natick. The boy was innocent.

If the boy had converted the horse, inasmuch as it had been delivered to him by a third person, and had not reached its destination, the offense would not have been larceny, by reason of the ancient anomaly sanctioned by Com. v. King 9 Cush. 284, and explained in Com. v. Ryan, 155 Mass. 523, 30 N.E. 364. But that is in consequence of the ambiguous attitude of the law towards his custody, which prevents it from regarding his conversion as a trespass. There is no such trouble when a third person converts the chattel. It is larceny equally when he takes the thing from a bailee, from a servant, or from the owner himself. Com. v. O'Hara, 10 Gray, 469; Com. v. Lawless, 103 Mass. 425; Com. v. Sullivan, 104 Mass. 552. Of course, the title had passed to Perkins, and, for most purposes, the possession, also; and, this being so, either there is no question of pleading or variance, or the statute disposes of it, if a larceny is proved. Pub.St. c. 214, § 14.

But the horse was delivered to the defendants, and the question remains whether their conduct falls under any recognized exception to the requirement of a taking by trespass. One such exception is when the possession of a chattel, but not the title, is gained by a trick or fraud, with intent to convert it. Com. v. Barry, 124 Mass. 325; Com. v. Lannan, 153 Mass. 287, 289, 26 N.E. 858. It may be assumed that acceptance of a chattel upon a contract or promise, with intent not to carry out the promise, but to convert the chattel, is within this exception. Com. v. Barry, supra; 2 Bish.Cr.Law (8th Ed.) § 813. So that the question is narrowed to whether there was any evidence of intent at the time when the defendants received the horse, the only fact bearing upon the matter being what they did shortly afterwards. This has been settled, so far as precedent can settle it, from very early days, although the principle has been disguised in an arbitrary seeming form. The rule that, if a man abuse an authority given him by the law, he becomes a trespasser ab initio, although now it looks like a rule of substantive law, and is limited to a certain class of cases, in its origin was only a rule of evidence by which, when such rules were few and rude, the original intent was presumed conclusively from the subsequent conduct. It seems to have applied to all cases where intent was of importance. Hill, J., in Y.B. 11 Hen. IV. p. 75, pl. 16; 13 Edw. IV. p. 9, pl. 5; Six Carpenters' Case, 8 Coke, 146, a, b; See Y.B. 9 Hen. VI. p. 29, pl. 34. Compare, as to burglary, 1 Hale, P.C. 559, 560; 1 Starkie, Cr.Pl. 177; 2 East, P.C. 509, 510, 514. This rule was mentioned in the well-known case in which it was decided that a carrier breaking bulk is guilty of felony (Y.B. 13 Edw. IV. p. 9, pl. 5), and in the time of Charles II., even was thought to explain the decision there (J.Kel. 81, 82). It is true that this explanation hardly can be accepted. 2 East, P.C. 696. It was repudiated by the judges who decided the case. But seemingly the reason for the repudiation was that at that time the intent of the bailee was supposed to be always immaterial, and that as yet, and, indeed, as late as Lord Coke and Lord Hale, no exception had been made to the general rule that delivery by the owner prevents a conversion from being felony. Y.B. 13 Edw. IV. p. 9, pl. 5. See 8 Coke, 146b; 1 Hale, P.C. 504; Y.B. 12 Edw. IV. p. 8, pl. 20; 21 Edw. IV. pp. 19, 75, 76. Probably the first suggestion that intent can be important when there is a bailment is in J.Kel. 81, 82, just cited. Since the law has changed, or has been developed, the Carrier's Case sometimes has tended to make confusion. 2 East, P.C. 695, § 115. The rule...