United States v. Patton

• Decision Date: 03 May 1941
• Docket Number: No. 7681.,7681.
• Citation: 120 F.2d 73
• Parties: UNITED STATES v. PATTON.
• Court: U.S. Court of Appeals — Third Circuit

120 F.2d 73 (1941)

UNITED STATES v. PATTON.

No. 7681.

Circuit Court of Appeals, Third Circuit.

May 3, 1941.

W. George Negley, of Pittsburgh, Pa., for appellant.

C. James Todaro, of Washington, D. C. (George Mashank, of Pittsburgh, Pa., on the brief), for appellee.

Before MARIS, JONES and GOODRICH, Circuit Judges.

MARIS, Circuit Judge.

In the first two counts of an indictment which alleged the violation of section 2 of the bank robbery act of May 18, 1934, as amended by the act of August 24, 1937, c. 747, 50 Stat. 749, 12 U.S.C.A. § 588b,¹ the defendant was charged with entering a national bank with intent to commit larceny therein and in the third count with taking and carrying away certain money and property exceeding $50.00 in value belonging to a national bank with intent to steal and purloin the same. The stipulated facts are that the defendant was employed as chief clerk of the Linde Air Products Company of New York at its branch plant located at Trafford, Pennsylvania. The Linde Company maintained a petty cash account in the First National Bank and Trust Company of East Pittsburgh in Pennsylvania. The defendant was authorized to make deposits in this account, and, provided he had the co-signature of his fellow employee, J. D. Jackson, to draw checks against this account. The Linde Company drew a check on a New York bank payable to its petty cash account in the East Pittsburgh bank. This check came into the possession of the defendant who altered the amount from $1,055.38 to $11,055.38 and deposited it on June 25, 1938 in the Company's petty cash account in the East Pittsburgh bank. The defendant drew a check dated June 25, 1938, upon the Linde Company's petty cash account in the sum of $10,832.63, and forged Jackson's signature thereto. On June 27, 1938 the defendant appeared in person at the East Pittsburgh bank, presented this forged check to a teller and received in cash $10,832.63, which sum he converted to his own use.

The defendant entered a plea of "not guilty" and waived a jury trial. The court found the defendant guilty of a violation of the statute as charged in the indictment. The government states that the question involved on this appeal is whether under the facts above stated the defendant was guilty of entering a national bank with intent to commit larceny therein. It seems to be conceded that to take and carry away from a bank property belonging to it with intent to steal and purloin the same, as charged in the third count, is the equivalent of committing larceny in the bank. We shall accordingly limit our consideration to the question stated by the government. Its answer is entirely dependent upon whether what the defendant did in the East Pittsburgh bank amounted to larceny. Nowhere in the statute is the word "larceny" defined. It is, however, well settled that when a federal statute uses a term known to the common law to designate a common law offense and does not define that term, courts called upon to construe it should apply the common law meaning. United States v. Palmer, 3 Wheat. 610, 16 U.S. 610, 4 L.Ed. 471; United States v. Armstrong, Fed. Cas.No.14,467, 2 Curt. 446; United States v. Outerbridge, Fed.Cas.No.15,978, 5 Sawy. 620; United States v. Coppersmith, C.C., 4 F. 198; United States v. Clark, D.C., 46 F. 633.

"Larceny, at common law, is the taking and removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with the felonious intent to deprive him of his ownership therein." Clark's Cr.Law (3rd Ed.) 305. One of the essential elements of the crime is that the taking is by trespass, that is, without the consent of the owner. So in Reg. v. Ashwell, 16 Q.B.D. 190, A. L. Smith, J. said (p. 195): "To constitute the crime of larceny at common law, in my judgment there must be a taking and carrying away of a chattel against the will of the owner, and at the time of such taking there must exist a felonious intent in the mind of the taker. If one or both of the above elements be absent there cannot be larceny at common law. The taking must be under such circumstances as would sustain an action of trespass. If there be a bailment or delivery of the chattel by the owner, inasmuch as, among other reasons, trespass will not lie, it is not larceny at common law."

In Hawkins' Pleas of the Crown Vol. 1, Curwood's Ed., p. 142, it is said: "It is to be observed, that all felony includes trespass; and that every indictment of larceny must have the words felonice cepit, as well as asportavit; from whence it follows, that if the party be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them away."

That the defendant in the present case did not take the money from the bank teller against his will is undisputed. The fact that his consent was obtained by means of fraud and forgery is relied upon by the government to sustain its position that there was in fact no consent. On this point the opinion of Chief Justice Tilghman, speaking for the Supreme Court of Pennsylvania, in Lewer v. Commonwealth, 15 Serg. & R. 93, is so apt that we quote pertinent portions thereof. He said (15 Serg. & R. page 96):

"It is of the essence of larceny, that the taking be invito domino, without the will of the owner. Fost. 123; 4 Bl.Com. 230; 2 East, C.L. 665. The ancient known definition of larceny, says Foster, is fraudulenta obtrectatio rei alienae, invito domino. Fost. 124. The question is, then, whether the defendant took and carried away the goods of the prosecutors, against their will? To a person unacquainted with legal subtleties, it would seem strange, to make it a question, whether, after a sale and delivery of goods, and a receipt given for the price of them, the vendee could be said to take them away against the will of the vendor? The argument on behalf of the prosecution is, that the consent of the vendors was fraudulently obtained, and therefore, in law, it was no consent; and the defendant, having from the beginning an intent to get possession of, and carry away the property, without paying for it, was guilty of larceny."

The Chief Justice then examined the English common law authorities prior to 1776 which apparently sustained the prosecutor's argument. Concluding that they were all cases in which the consent was held to be...