Free MEMORANDUM in Support - District Court of Delaware - Delaware

· · Case 1 :05-cv—00602-JJF Document 3-10 Filed 06/27/2005 Page 1 of 4
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F" [51 False Pretenses @20
Circuit Court of Appgals, Third Circuit.
In determining existence of "larceny" at common law,
T ` ```` i` distinction is drawn between giving up possession ofchattel
_ for a special purpose to another, who by convening it to his
C No. 7% l own use is held to have committed a "trcspass", and hence
"larceny", and the case of one who, although induced by
May 3» l94l· fraud or trick, nevertheless actually intends that title to the
Appeal from the District Court ofthe United States for the Chanel Shan pass w thc wmngdccn
Western District of Pennsylvania; Frederic P. Schoontnakcr, ml Larccny %62(2)
Judge- 2i4k62{2) Most Qitggl th, ses
Walter Addison Patton was convicted of entering national Prguf that d°f°'Yd“"‘ cashcdnahcrcd jnd f°'g°d chccks on
bank with intent to commit larceny and of larceny from national bank md nm show larccny at common law, and
_ hence did not warrant conviction of entering national bank
mmonai bank and he appcalS' with intent to commit larceny or committing larceny from
Rcvcrscd national bank. 12 U.S.C.A. § 588b.
*74 W. George Ncglcy, of Pittsburgh, Pa., for appellant.
West Headnotes
C. James Todaro, of Washington, D.C. (George Mashank,
[lj Criminal Law %·ll of Pittsburgh, Pa., on the brief`), for appellee.
I l0kl I Most Qited gases
When a federal statute uses a term known to the common Bstsrc MARlS· JONES and GOODRICFL Circuit J“dg°s·
law to designate a common law offense and docs not define MARIS, Circuit Judge-
such temt, courts should apply the common law meaning.
Q1 Lamm), %_l In the first two counts of an indictment which alleged the
MM 4 S i HI cs violation of section 2 of tlte bank robbery act of May 18,
"Larceny" at common law is the taking and removing by 1934* as amendcd by thc am of Augum 24’ l937’ c` 741 50
trespass of personally which the trespasser knows to belong Stat. 749,. l2 U.S.C.A. 5SSb, [EKU the defendant was
, , , , charged with entering a national bank with intent to commit
either generally or specially to another with the felontous , , , , ,
i¤t¢¤t to deprive him of his Dwnerghip thcrcgn IMCCPY thsrsm and lll tht? third count with taking and
carrying away certain money and property exceeding $50.00
[Q1 Lareeny @13 in value belonging to a national bank with intent to steal and
224kl q MEN Cmd Q-avg purloin the same. The stipulated facts are that the defendant
An Essential clcmcm of ·»lm.ccny·· is (hat thc taking is by was employed as chief clerk of the Linde Air Products
•·trcspaSS··’ that is, without Owncps conscm Company of New York at its branch plant located at
Trafford, Pennsylvania. The Linde Company maintained a
lj] False Pretenses €$T·720 petty cash account in the First National Bank and Trust
l70lg20 Most titgd tgsgs Company of East Pittsburgh in Pennsylvania. The defendant
Where owner intended to part with the property in goods, as was authorized to make deposits in this account, and,
distinguished from mere possession, though fraudulent provided he had the co-signature of his fellow employee, J.
means were used to induce him to do so, the ofl`ensc is that D. Jackson, to draw checks against this account. The Linde
of "cheat" and not of "larccny" as a "fclony". Company drew a cheek on a New York bank payable to its
petty cash account in the East Pittsburgh bank. This check
@9 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
£)C(Cl).

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120 F .2d 73
(Cite as: 120 F.2d 73)
came into the possession of the defendant who altered the common law meaning.
amount from 51,055.38 to $11,055.38 and deposited it on
June 25, 1938 in the Company's petty cash account in the Fegl, Qas. Ng. |4,4§Z, 2 Lug;. 446; Llnitgd S tgtgs v.
East Pittsburgh bank. The defendant drew a cheek dated
June 25, 1938, upon the Linde Company's petty cash States v Cgppersmith, Q (`., 4 F. l98; United States v.
account in the sum of Sl0,832.63, and forged Jackson’s
signature thereto. On June 27, 1938 the defendant appeared
in person at the East Pittsburgh amt, presented this forged Llllll ‘L¤r¤¢¤v- at <=¤mm¤¤ law is thc =¤*<*¤a Md r¤m¤V*¤a»
check to a teller and received in cash Sl0,832.63, which bY "°SP“sS· °fP°rs°““l Pmpcny which thstrssrassct kmws
Snm hn nnnvnrrcd rd his Own nsn to belong either generally or specially to another, with the
felonious intent to deprive him of his ownership therein.'
_1§\jj_, Section 2(a) of the act, as amended, provides Clark's Cr. Law (3rd Ed.) 305. One ofthe essential elements
in part that '* * * whoever shall enter or attempt to ofthe crime is that the taking is by trespass, that is, without
enter any bank, or any building used in whole or in the consent of the owner. So in Reg. v. Ashwell, l6 Q.B.D.
part as a bank, with intent to commit in such bank 190, A. L. Smith, J. said (p. 195): 'To constitute the crime of
or building, or part thereof, so used, any felony or larceny at common law, in my judgment there must be a
larceny, shall be tincd not more than $5,000 or taking and carrying away of a chattel against the will of the
imprisoned not more than twenty years, or both; or owner, and at the time of such taking there must exist a
whoever shall take and carry away, with intent to felonious intent in the mind of the taker. If one or both of
steal or purloin, any property or money or any the above elements be absent there cannot be larceny at
other thing of value exceeding S50 belonging to, or common law. The taking must be under such circumstances
in the care, custody, control, management, or as would sustain an action of trespass. lf there be a bailmcnt
possession of any bank, shall be fined not more or delivery of the ehattel by the owner, inasmuch as, among
than $5,000 or imprisoned not more than ten years, other reasons, trespass will not lie, it is not larceny at
or both; * * *‘. common law.'
LL] The defendant entered a plea of‘not guilty‘ and waived a ln Hawkins' Pleas of the Crown Vol. l, Curwood's Ed., p.
jury trial. The court found the defendant guilty ofa violation 142, it is said: 'lt is to be observed, that all felony includes
ofthe statute as charged in the indictment. The govemment trespass; and that every indictment of larceny must have the
states that the question involved on this appeal is whether words felonice cepit, as well as asportavit; from whence it
under the facts above stated the defendant was guilty of follows, that if the party be guilty of no trespass in taking
entering a national bank *75 with intent to commit larceny the goods, he cannot be guilty of felony in carrying them
therein. It seems to be conceded that to take and carry away away.'
from a bank property belonging to it with intent to steal and
nnrlrnn rnd Snnnn ns cnnrnnd in dn, dnrd Cdnnn in dn, That the defendant in the present case did not take the
cdnnrnlcnr dr- cornrnnnng rnrnnny in rnd bnnk_ Wn snail money from the bank teller against his will is undisputed.
accordingly limit our consideration to the question stated by Thc fac! that his conscm was °bml“°d by mmm Of fraud
dn: nnvnrnmnnr ns answer is nndrcn, dnnnndnnr nnnn and forgery is relied upon by the government to sustain its
whether wha, [hc ddrdndnnr did in rnd Ensr pnrsbnrnn bank position that there was in fact no consent. On this point the
amounted to larceny. Nowhere in the statute is the word °Pi“i°“ of Chicf Jusucc Ti*shm==·¤» spcaklng for lhs
’larceny‘ detined. lt is, however, well settled that when a Supreme Court of P°"“SYi"a"la· in 1&‘E!—i·
federal statute uses a term known to the common law to is SP api that wc qumc
designate a common law offense and docs not define that pcnincm P°“i°"S thcrcm-· Hc Said (I5 S°"g·& R-Page 96)7
“’"“· °°“"5 °“"°d “*’°“ '° °°""'“’° " ‘h°"'d apply 'h° it is ofthe essence of tammy, that me ating be imma
@3 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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120 F.2d 73
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domino, without the will ofthe owner. Fost. l23; 4 Bl.Com. with his title to the property has been made many times by
230; 2 East, C.L. 665. Tlte ancient known definition of text writers [_}il12_] and by American [_E_§l_fj as well as
larceny, says Foster, is fraudulenta obtrectatio rei alicnae, English [E_l$l_lcases at common law.
invito domino. Fest. 124. The question is, then, whether the
defendant took and carried away the goods of the EE 2 Bisiicpis Cciraw (9iii Ed) p· cici Ciciics
prosecutors, against their will'? To a person unacquaintcd Cic Law (Miiiciiis 3ici Ed) P· 322: 'Tiic mw-
with legal subtleties, it would seem strange, to make it a h¤w¤~*<=¤‘· miikcs ii disiiiiciicn whcic ihc cwiici
question, whether, after a sale and delivery of goods, and a iiiiciids ic pim wiiii tits ipmpciiyl ci ¤w¤¤rShi¤· as
receipt given for the price of them, the vendee could be said wall as iiic Pcsscssicii Whcic ihc cwiici ci. gccds
to take them away against the will of the vendor? The dciivcis Pcsscssicii ic iiic acciiscib iiiiciidiiig ic
argument on behalf of the prosecution is, that the consent of pim iibcciiiiciy Wiiii iiic ¤W¤¤rSh*¤» iiiciic can bs iic
the vendors was fraudulently obtained, and therefore, in law, ia'°°“Y· whatsvsr maY bs iiic iiiiciii ci- iiic ickci?
it was no consent; and the defendant, having from the ici? thc c’“’“ci` having Pimcd Wiiii iiic iiiic ic iiic
beginning an intent to get possession of, and carry away the gccds ic iiic acc“Scci• MY cci“’ci`Si°ii br iiic
property, without paying for it, was guilty of lareeny.’ ccciiscd is mi ii cciwcisicn ci ihc gcccs ici
another‘. The fact that the possession is obtained
The Chief Justice then examined the English common law fraudulently, and with intent to appropriate the
authorities prior to l'/76 which apparently sustained the goods, is altogether immaterial. Thus, a person
prosecutor’s argument. Concluding that they were all cases who, by false and fraudulent representations,
in which the consent was held to be void because the owner induces another to give him a thing, or to sell and
ofthe goods had no intent to part with the property, but only deliver goods on credit, does not commit lareeny.'
the possession for a particular purpose, he continued (li
S c,.g_S; B_ nag. 95). FN3 Welsh v Peggie, l7 lll. 33 9; Ross v. People,
5 Hill, N.Y., 294; ligllgggg v. §tatg, 2Q Qhig §t. 15.
L4] 'But when the owner intended to part with the property,
the case is different. For although fraudulent means may -i& Rcii V- ·i“ci‘c°ii» i Mc°iiY CC- ii9· icg
have been used to induce him to part with it, yet he E"g·RcPi· 1208; Tiic Qiiccii "· icscpii Biii`iicS· 2
delivered the possession absolutely, and the purchaser Dc“· 5i· icg Eiig·RcPi`· M7? Rcgiiic i"- Th<>¤~¤S» 9
received the possession, for the express purpose of doing C¤F·& 9741. W3 E¤g·R¤Pl’· IO33-
with the goods what he pleased. The owner was not _
deceived by the manner in which possession was taken; it
was is r...,.... rs. is shorts nctc . ..r....., is ated we by is g¤~*¤¤·m¤·¤* and by is
him; *76 thcmfomy it was a msc Of chem, and nm Of felony- district court, reaches a different result upon the facts there
I End it laid down by East, 3 www of criminal law Of, presented but does not question the correctness of the
respectable camera, 'that ir uic owner pans with the 2""""°"‘ °il 'i‘° “°""“°" i““’ ““"°"“"°‘i '" _ L°“"" "‘
pmpcny, by “_hm€Vcr Eaudulcm mums hc was induccd I0 ommonwea th, supra. On the contrary, Mr. Justice Paxson
. . . . , . . . . . stated (119 Ba. page ZQQ4, 1} A. pggg; 425): 'Lewcr v.
give credit, it ts not felony. lhave seen no judicial decision, Commcnwcahh was WCM dccidcd and wc adhere to every
which is authority in this court, carrying the doctrine of _ I , _ _ ’
what may be Called Constmctivc larceny, beyond the case word there said. He distinguished the ease solely upon the
. . . , facts. The defendant was the maker of a promissory note for
where possession only was intended to be delivered. _ _ _
$1,600. He paid the discount charge for renewing the note,
The disuncnon here made by Chicf Justice Tilghmm, procured the old note from the bank teller and gave the teller
bciwccn the case where the Owner pans with possession Of a new one for SI6. The defendant was indicted for larceny
the personal property to be disposed of in accordance with cf iiic Si·ccc picmissciy iicic· Tiic Siipicmc Ccim siaicii
his directions and where the owner intends to and does part `Tiic bank Piiiicd wiiii
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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the possession. If it also intended to part with its property
represented by the note, we have no hesitation in saying the
offense of the defendant was not larceny, whatever else it
may have been. ' Upon the Lacts the Supreme Court found
that thc bank did not intend to part with its property in the
note considered as an evidence of debt. lt therefore
concluded that the taking, being without the consent of the
owner, was a trespass and that the defendant was guilty of
larceny.
[§][Q] lt will be seen that the distinction drawn by the
common law is between the case of one who gives up
possession of a chattel for a special purpose to another who
by converting it to his own use is held to have committed a
trespass, and the case of one who, although induced by
fraud or trick, nevertheless actually intends that title to the
chanel shall pass to the wrongdocr. lt may well be that thc
distinction is artificial and illogical and was evolved by
judges in a humane search for legal methods for saving
defendants from the consequences following conviction
upon a charge of larceny which at the time many of thc
cases were decided was a capital offense. Commonwealth v.
Eichelberger, supra. We are nevertheless here concerned
solely with the question whether the govemment has proved
facts which would sustain a conviction for larceny at
common law. Our conclusion is that the facts would not
sustain such a conviction.
The judgment of the district court is reversed.
l20 F .2d 73
END OF DOCUMENT
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.