Struthers v. Peckham

• Decision Date: 07 March 1900
• Parties: STRUTHERS v. PECKHAM.
• Court: Rhode Island Supreme Court

45 A. 742

22 R.I. 8

STRUTHERS

v. PECKHAM.

Supreme Court of Rhode Island.

March 7, 1900.

Action by William E. Strathers against John Peckham, in trover, for money stolen or embezzled. Verdict for plaintiff. Defendant moves for a new trial. Remitted, with direction to dismiss.

Franklin P. Owen, for plaintiff.

Comstock & Gardner and James A. Pierce, for defendant.

STINESS, J. The plaintiff sues in trover for the commission of $750 in money, and, a verdict having been rendered in his favor, the defendant petitions for a new trial. The plaintiff's testimony shows that on March 2, 1899, he put the sum of $750 into the defendant's safe, with his permission, for safe-keeping. The money was rolled up in a canvas belt, and was placed in an inside vault, secured by a combination lock; the defendant alone having the combination. The plaintiff was employed, somewhat, in and about the store, and on the 1st of Slay he asked for the money. The defendant put him off for a day or two by saying that he had left the combination at home, but when the safe was opened the belt was there, but not the money. The plaintiff further testifies that the defendant then admitted that he had taken the money and used it. The defendant denied the plaintiff's statements, and other witnesses testified to admissions and facts which were more or less in corroboration of each party. As the verdict was for the plaintiff, we must assume that the jury believed his story; and, as there was sufficient evidence to warrant such a decision, we cannot sustain the first ground of the petition,—that the verdict was against the evidence.

The second ground of the petition is that our statute (Gen. Laws, c. 233, § 16) provides that, when a person is Injured by the commission of any crime or offense, no action for such injury shall be commenced until after complaint has been made therefor, and process issued against the defendant, "excepting only those cases in which such action may now be maintained at common law." This provision was first adopted in February, 1838 (Pub. Laws R. I. 1837, p. 961), in "An act concerning crimes and punishments." Upon the statute, two questions arise: First, does this case show a crime? and, second, could an action be maintained for such an injury at common law?

That the charge, if true, amounts to a crime, there can be no doubt, because it is the taking of the plaintiff's property, without his knowledge or consent, animo furandi. The only question that can arise from the facts as claimed by the plaintiff is whether the crime was larceny or embezzlement. If the money was in any sense intrusted to and in the possession of the defendant, as the plaintiff's agent or servant, for a specific purpose, it was embezzlement. If, on the other hand, the money is to be regarded as having been in the plaintiff's possession, even though it was in the defendant's safe, because it was buttoned or rolled in a belt which defendant had no right to open, then it was larceny. In either case there would be a crime, and, as held in State v. Taberner, 14 R. I. 272, substantially the same crime, which might be larceny at common law, or embezzlement under the statute. Gen. Laws, c. 279, § 16, provides that one who embezzles shall be deemed to be guilty of larceny, "and may be tried, sentenced and punished as for any other larceny." The case, therefore, sets out either larceny, or that which is deemed to be and punished as larceny; and larceny was a felony at common law.

The next question is whether the action could be maintained at common law, so as to bring it within the exception in our statute. The rule of the common law was that no civil action could be maintained for an injury arising from a felony until after a trial of the defendant for the felonious act, and his conviction or acquittal. The public offense was deemed to be of so much greater consequence than the private injury, that the civil action was put aside until the demands of public justice had been satisfied. Some have said, but with obvious inaccuracy, that the private tort is merged in the felony. Another reason has been given for the rule,—that it was to stimulate public prosecutions for crime, rather than to allow a plaintiff to secure payment for his private injury, leaving the criminal to prey upon others. Possibly the reason may have been that, as the estate of a felon was forfeited to the crown, the king's prerogative should not be infringed by a subject by means of a civil action. These several reasons are suggested in Golightly v. Reynolds, Lofft, 88, where an action of trover for stolen goods was sustained after conviction. Lord Hale, in Pleas of the Crown (page 546), says: "If a man feloniously steal goods, and before prosecution by indictment the party robbed brings trover, it lies not; for so felonies should be healed." See, also, Crosby v. Leng, 12 East, 409; Stone v. Marsh, 6 Barn. & C. 551; Wells v. Abrahams, L. R. 7 Q. B. 554; White v. Spettigue, 13 Mees. & W. 603. In these latter cases an action was sustained against a third party, even though the thief had not been prosecuted. It is quite evident from...