Burns v. State

MARSHALL, J. Error is assigned because the court instructed the jury to the effect that, if the accused converted to his own use any of Adamsky's money, he did so as bailee. It is suggested that the court should have defined the term "bailee," as used in the statute, and left it to the jury to find the fact as to whether the circumstances satisfied such statute or not.

A court may properly instruct a jury in a criminal case, as well as any other, respecting any fact, or facts, established by the evidence beyond any room for reasonable controversy, and when such evidentiary facts exist establishing, beyond any room for reasonable controversy, an essential of any ultimate conclusion sought, it is not harmful error, if error at all, to treat such essential as having been proven, as the court here did in saying that the accused was a bailee of whatever of Adamsky's money came to his possession.

It seems to be thought that a bailment was not established by the evidence because some sort of contract inter partes was essential thereto. No particular ceremony or actual meeting of minds is necessary to the creation of a bailment. If one, without the trespass which characterizes ordinary larceny, comes into possession of any personalty of another and is in duty bound to exercise some degree of care to preserve and restore the thing to such other or to some person for that other, or otherwise account for the property as that of such other, according to circumstances,--he is a bailee. It is the element of lawful possession, however created, and duty to account for the thing as the property of another, that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not.

It is said, generally, in the books, that a bailment is created by delivery of the personalty to one person by another to be dealt with in specie as the property of such other person under a contract, express or implied, but the word "contract" is used in a broad sense. The mutuality essential to the contractual feature may be created by operation of law as well as by the acts of the parties with intention to contract.

So it makes no difference whether the thing be intrusted to a person by the owner, or another, or by some one for the owner or by the law to the same end. Taking possession without present intent to appropriate raises all the contractual elements essential to a bailment. So the person who bona fide recovers the property of another which has been lost, or irresponsibly cast away by an insane man, as in this case, is a bailee as much as if the same property were intrusted to such person by contract inter partes. In the latter case the contract creates the duty. In the former the law creates it. Such a situation is to be distinguished from that where one knowingly receives money paid him by mistake and fraudulently retains it. There the element of bona fide possession may be said not to exist and so the duty accompanied by such possession essential to a bailment not to have been created. We refer to that case by way of illustration, not by way of approval. The logic of it may not be strictly correct.

The finder of property who voluntarily bona fide takes it into his possession, immediately, thereupon, has imposed upon him by law the duties of a depositary, the mildest type, as regards degree of duty, of bailee.

So the finder here of the cast-away money was clearly a bailee, and when his duties were voluntarily assumed by the accused he became such, and as there was no controversy in respect to such finding and assumption, the court's reference to the matter was proper.

The next suggestion in behalf of plaintiff in error is that, if the accused was guilty of any offense, it was that of having broken the package and extracted therefrom part of the contents for the purpose of appropriating it to his own use, and executed such purpose, thus committing the offense of larceny, not of conversion by a bailee. It is a sufficient answer thereto that the purpose of the statute was to abolish the distinction between conversion by a bailee of an entire thing, as a quantity of property in a package of some kind, and the unlawful breaking of the package and conversion of part or all of the contents,--whether preceded by the element of breaking bulk with intent to permanently deprive the owner of the thing appropriated or not,--making the latter a statutory class of larcenies, differing only from ordinary larcenies, by absence in the former of the element of trespass in gaining original possession, which is essential to the latter. The meaning of the statute, as indicated, seems very plain:

"Whoever being a bailee of any chattel, money or valuable security shall fraudulently take or fraudulently convert the same to his own use or to the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny. . . ."

It follows that the acquittal of the accused of the offense of larceny is not inconsistent with his conviction of the statute offense of larceny as bailee.