#### STATE v. JAMES RUFFIN.

(Filed 24 September, 1913.)

Criminal Law — Bailee—Larceny—Trespass.

One who is intrusted by a person to mail a letter given by another for that purpose, and breaks open the letter before mailing and extracts and appropriates money therefrom, is guilty of larceny, upon the principle, if considered as a bailee, that he has broken “bulk and appropriated the goods or a part of them to his own use.” Semble, a conviction of larceny could be sustained upon the ground that the defendant had only the 'care or custody of the property, and not the legal possession. Hence, the position cannot be sustained that a conviction of larceny could -not be had because the defendant had acquired possession with the consent of the owner.

Appeal by defendant from Oline, J., at May Term, 1913, of VaNce.

Prosecution for larceny. Tlie facts in evidence tended to show that oh a certain Sunday night, 1913, Robert Royster had several letters written, and same were put in envelopes, sealed 'and addressed to the respective parties; that one of these letters so inclosed and sealed was addressed to his father, Spot Royster, Virgilina, Va., and in that one said Robert had put $10 in bills. Next morning Robert'gave these letters to Eugene Sandiford to mail, and Sandiford handed .them to defendant for like purpose. There was further evidence tending to show that defendant having opened the envelope and taken the money, resealed and mailed the letter at the post-office in Henderson. The court charged the jury that if they should find beyond a reasonable doubt that defendant secured the letter from Sandiford for mailing and undertook to mail same at his request, that the money was then in it and he broke open the letter and took it out and appropriated it to his own use, they would render a verdict of guilty; that the breaking of the letter was a sufficient taking within the 'proper definition of the crime. There was a verdict of guilty, and from sentence to jail for eight months, defendant excepted, assigning for error that on the facts in evidence defendant could not be convicted of larceny, having acquired possession by consent of owner or his bailee.

*417 Attorney-General and Assistant Attorney-General for the State.

Thomas M. Pittman for defendant.

Hoke, J.,

after stating tbe case: At common law it was regarded as an essential feature, of tbe crime of larceny tbat tbe party charged should have acquired possession of tbe property against tbe will of tbe owner and ordinarily with intent to steal at tbe time. Tbe taking considered necessary to make out tbe offense involved the idea of a trespass on tbe possession of tbe owner, either actual or constructive. Tbe principle was held to include cases where possession was acquired from tbe owner animo furandi, by trick or fraudulent contrivance. S. v. McRae, 111 N. C., 665; People v. Miller, 169 N. Y., 339, reported with instructive editorial note, 88 Amer. St. Reports, 546. And convictions were upheld when tbe party charged bad only tbe cus- . tody of tbe property, tbe constructive possession remaining with tbe owner. Instances of this occurring when a servant or employee intrusted by tbe master with goods or money for a specific purpose, in breach of this purpose appropriates same to bis own use with felonious- intent. S. v. Jamis, 63 N. C., 528.

There is high authority for tbe position tbat tbe conviction in tbe present case .could'very well be sustained on tbe ground tbat defendant bad only the care or custody of tbe property, and not tbe possession. Murphy v. People, 104 Ill., 528; Walker v. State, 9 Ga. App., 863.

We áre not called on to determine whether this view is in accord with our decisions more directly relevant to tbe question presented, the defendant not being tbe servant or employee of tbe prosecutor (S. v. Copeland, 86 N. C., pp. 692-695; S. v. England, 53 N. C., 399; S. v. Martin, 34 N. C., 157), being of opinion tbat on tbe record the defendant has been properly con-vietéd, whether considered originally as bailee or only as custodian. It is tbe well established principle tbat “a bailee who breaks bulk and'appropriates tbe goods or a "part of them to bis own use with felonious intent is guilty of larceny.” 18 A. and *418E., p. 479; Robinson v. State, 1 Coldwell, 122; S. v. Fairclough, 29 Conn., 47; Rex v. Jones, 32 Amer. Com. Law, 474; Rex v. Jenkins, 38 Eng. Com. Law, 27.

In Fairclough’s case, supra, citation is made from my Lord Golee as follows: “If a bale or pack of merchandise be delivered to carry to one at a certain place, and be goetb away with the whole pack, this is no felony; but if he open the pack and take anything out, animo furgndh, this is larceny.” 3 Coke’s Inst., p. 417.

In Robinson’s case, supra, the principle was applied where the prosecutor left his room and trunk unlocked in charge' of defendant, who in prosecutor’s absence opened the trunk and took money out of it with felonious intent.

And again in Rex v. Jones, supra, to a case where defendant broke open a letter intrusted to him to mail and abstracted money from same, the very case we have here, and is recognized as the correct position in S. v. England, supra, an authority to which we were referred by counsel.

There is-no error, and the judgment is affirmed.

No error.