Canton National Bank v. American Bonding & Trust Co.

Thomas, J., delivered the opinion of the Court. This suit was brought by the Canton National Bank against The American Bonding and Trust Company on a surety bond to recover losses suffered by the plaintiff through its cashier, John W. H. Geiger. By its bond, executed for the term beginning on the 26th day of September, 1896, and ending on the 26th day of September, 1897, and renewed from year to year so as to be in force down to and including the 26th day of September, 1907, the defendant covenanted and agreed, subject to the provisions and conditions therein contained, at the expiration of three months next after delivery to the company of proofs satisfactory to it of a loss within the term of the bond, to “make good and reimburse to the” plaintiff “to the extent of ten thousand dollars and no further, such pecuniary loss, if any, as may be sustained by the employer by reason of any fraudulent or dishonest conduct of the employed in connection with the duties of said position, amounting to embezzlement or larceny, which shall have been committed during said term, and discovered during said term or within three months after the expiration thereof.” The bond is set out in full in the declaration, which then charges, in one count, seven distinct acts of the cashier, each one of which the plaintiff claims amounts to larceny. The defendant demurred to the declaration, the demurrer was sustained, plaintiff declined to amend and judgment was entered for the defendant, and from that judgment this appeal was taken. .

By the terms of the bond the losses which the defendant undertakes to make good are limited to those occasioned by such acts of the cashier as amount to embezzlement or lar ⁴⁴ ceny, and. the contention of the appellee in this Court is that the several acts of the cashier set out in the declaration, and not claimed to he embezzlement, do not amount to larceny. The first inquiry, therefore, is, what is larceny? In 2 Russell on Crimes, 1 (6 Am. ed.), it is said that: “In a late work of great learning and research, larceny is defined at large to he ‘the wrongful and fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker’s) own use, and make them his own property, without the consent of the owner.’ ” In 1 Wharton's Crim. Law, sec. 862 (8th ed.), where the definitions given by Baron Parke, Coke, Hawkins and Blaekstone are criticised, larceny is said to be “the taking and carrying away of a thing unlawfully and without claim or right with the intention of converting it to a use other' than that of the owner,” and in 2 Bishop's New Crim.

Law, sec. 758, larceny is defined as “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 the owner of his ownership therein; and, perhaps it should he added, for the sake of some advantage to the trespasser — a question on which the decisions are not harmonious.” •These learned authors agree that even where it is held that the taking must he lucri causa, it is not necessary that the motive should he one of pecuniary gain, any advantage to the prisoner is sufficient; and they cite authorities to the effect that to take to give away is larceny. 1 Wharton's Crim, Law, sec. 896; 1 Russell on Crimes, 2; 2 Bishop's New Crim. Law, secs. 840-849. While it is intimated in State v. Hodges, 55 Md. 127 , that the taking must he lucri ca/asa, and in the case of Worthington v. State, 58 Md. 403 , larceny is said to “consist in the wrongful taking and carrying away the chattels of another with a felonious intent to convert them to the taker’s own use,” in the recent case of Williams v. U. S. Fidelity Co., 105 Md. 494 , this Court said that ⁴⁵ “Larceny, at common law, was the felonious taking of the property of another against his will with the intent to convert it to the use of the taker or, as some authorities hold, the use of the taker or a third person.” Mr. Bishop says (vol. 2, sec. 846), that the English Courts have at last overthrown the old notion of lucri causa. In the ease of Reg. v. White, 9 C. & P. 344, the prisoner White, was charged with larceny and the prisoner, Sellers, was charged with receiving, etc., and Ebskine, J., said: “If the prisoner, Eliza White, took the property and handed it to the other prisoner, as a gift, it was as much a felony as it would have been if she had sold it.

The purpose for which she took it is not material.” The case of Reg. v. Privett, 2 C. & K. 144, goes to the full extent of holding that it is not necessary that the prisoner should have intended to derive some benefit or gain, to himself. In that case the jury found that the prisoners took the oats from their master with the intent to give them to their master’s horses, and without any intent to apply them to their private use, and Earle, J., reserved the case for the fifteen judges, who held the conviction of larceny right. In 25 Cyc., 52, it is said that: “According to the weight of authority the felonious intent required for larceny is not necessarily an intent to gain advantage for defendant; an intention to deprive the owner of his property is enough,” while in 18 Am. & Eng. Ency. of Law, 504 (2nd ed.), the preponderance of authority is said to be the other way, but that “It is not necessary that the benefit should be of a pecuniary nature — it is sufficient that he intended to exercise proprietary rights to the permanent deprivation of the real owner, as where the purpose of the taking was to convert the thing taken to the use of a third person or merely in order to make a gift to a third person.” In every larceny there must also be a taking and a trespass, that is to say, there must be a taking from the possession of the owner against his will.

The taking however, need not be by the hand of the accused; “if he procure a person innocent of any felonious intent to take the goods for him— ⁴⁶ his offence will be the same as if he had taken the goods himself.” 2 Russell on Crimes, 4; 1 Bishop’s New Crim. Law, secs. 631 and 651; 1 Wharton’s Crim. Law, sec. 207; 25 Cyc., 58; 18 Am. & Eng. Ency.

Law, 468 (2d ed.); Hochheimer’s Crimes and Pro., sec. 31; Com. v. Barry, 125 Mass. 390 . Where the person who actually takes the property is also guilty, he who procured him to commit the larceny is, if present, guilty as principal, and if absent, is guilty as an accessory before the fact. Hochheimer’s Crimes & Pro., secs. 26-38; 25 Cyc., 58; 1 Bishop’s New Crim. Law, sec. 651; 1 Wharton’s Crim.

Law, sec. 207. In the light of these principles, we will now consider the several acts or breaches charged in the declaration. The first charge is that on the- 22nd day of November, 1906, the cashier, who was then a member of the firm of German & Company, caused to be drawn a check on the plaintiff in the name of said company for the sum of $2,500, in favor of his brother, George H. Geiger, and delivered the check to him; that thereupon his brother presented the check to the paying-teller of the plaintiff, and that the paying-teller, acting under the orders and directions of John W. H. Geiger, who was then and there the cashier of the plaintiff, paid the said George H. Geiger, in currency, $2,500 the amount of said check; that at the' time the check was cashed “there were no sufficient funds to the credit of German & Company to satisfy and pay said check,” and that the check was not charged against their account, but by the direction of the cashier was “held in the cash of the paying-teller of the plaintiff;” that said sum of $2,500, received by George H. Geiger, was, by the direction of the cashier, applied to purposes foreign to the interests of the plaintiff, and that when the cashier ordered the paying teller of the plaintiff to turn over the $2,500 to George H. Geiger, he acted with the felonious intention of causing the said sum of $2,500 to be wrongfully taken and carried away from the possession of the plaintiff and of causing the plaintiff to be deprived of the same. ⁴⁷ 2. The second charge is that on the fifth of October, 1906, there was deposited with the plaintiff by the United Surety Company the sum of $4,500, the understanding between the plaintiff (acting, solely through the cashier and without the knowledge of the other officers of the plaintiff) and the United Surety Company being that said deposit of $4,500 should be subject to the check of German & Company only when said check was countersigned by Charles B. Brown, on behalf of the Surety Company; that German & Company assented to the arrangement and a' separate account, representing this deposit, was opened with the bank by German & Company, designated as German & Company No. 2; that on the 7th of December, 1906, a check for $4,500 was drawn through the procurement ^and direction of the cashier by German & Company against this account, but was not countersigned by Charles B. Brown; that this check for $4,500 was, by the direction of the cashier, charged to the account of German & Company No. 2, and was then substituted izz the cash of the paying teller of the plaintiff for the cheek of $2,500, cashed for George H. Geiger, and a memorandum of $2,000 credited to German & Company, and that the memorandum was then taken from the cash of the paying teller by the cashier. 3.

The third charge is, that on November 12th, 1906, there stood to the credit of German & Company in their account with the plaintiff $241.29; that on that day a check drawn on that account for $500 was paid out of the plaintiff’s funds by the diz’ection of the cashier, and that from that time until and including the 24th of November, 1906, the account of German & Company was continuously overdrawn, although divers and sundzy deposits. during that pezdod wez*e znade by the said German & Company; that notwithstanding the fact that the account of German & Company was continuously overdrawn during the above mentioned pezdod, divers and sundzy cheeks, including the check of $500 amounting in the aggregate to $10,733.63 wez’e paid out of the funds of the plaintiff by the direction and order of the cashier; that on ⁴⁸ the 24th of November, 1906, the account of German & Company was balanced by crediting $800 deposited that day, and the said memorandum of $2,000 and that when the cashier ordered the paying teller to make.payment of each of the above mentioned checks of German & Company, the payments of which were not warranted by cash standing to their credit, he, the said cashier, acted with the felonious intent of causing the sums of money called for by said checks to be wrongfully taken and carried away from the possession of the plaintiff,