Opinion
May, 1927.
Appeal from County Court of Erie County.
Present — Hubbs, P.J., Clark, Crouch, Taylor and Sawyer, JJ.
Judgment of conviction affirmed. All concur, except Hubbs, P.J., and Crouch, J., who dissent and vote for reversal and dismissal of the indictment in a memorandum.
We dissent and vote for reversal upon the ground that there is no proof that the entry was made "with intent to commit some crime therein." It is undisputed that the intent of defendants was "to take the property, such as they might find, for evidence * * * to aid in obtaining this divorce, * * * in order that they might use it later as evidence in court." That was the claim of the People as stated by the trial judge in his charge to the jury, and it was the only claim. To constitute larceny under the statute, there must be an intent to deprive the owner of his entire ownership in the thing taken, not merely of his possession thereof temporarily. ( McCourt v. People, 64 N.Y. 583; Van Vechten v. American E.F. Ins. Co., 239 id. 303, 305; Parr v. Loder, 97 App. Div. 218, 220; People v. Kenney, 135 id. 380; State v. South, 28 N.J.L. 28; Reg. v. Trebilcock, 7 Cox Cr. Cas. 408; 2 Bishop's Crim. Law [9th ed.], § 841; 9 Halsbury's Laws of England, 629.) There is no claim here and no evidence to warrant a claim that defendants intended to appropriate another's property permanently and wholly.
See Penal Law, § 402. — [REP.
See Penal Law, § 1290 et seq. — [REP.