Commonwealth v. Hurd

Endicott, J. The defendant was indicted for larceny of a horse and two wagons. It appeared in evidence that he took and sold them without authority from the owner, absconded and kept the money obtained from the sale. The defence was that he was authorized by the owner to sell to any purchaser he could find, and on this point there was conflicting evidence. If he was authorized to sell, or honestly believed he had the right to take and sell the property, his subsequent flight and wrongful appropriation of the money would not justify the jury in finding him guilty of larceny. But if he was not so authorized, and the taking and selling were without right or color of right, then evidence of his subsequent conduct was competent to show the intent with which he took and sold the property. This was in substance the ruling of the presiding judge, and we fail to see that the defendant has any just ground of exception. The first question for the jury to determine was whether the defendant had authority to take and sell the horse and wagons; if they found that he had or honestly believed that he had, that was the end of the case; and in deciding that question his subsequent conduct was immaterial. If, on the other hand, they found that he had no authority and knew he had not, then all his subsequent acts in connection with the transaction were compe 440 tent, as bearing on the question whether the taking and selling were felonious, and in that view they could properly take into consideration his flight and wrongful appropriation of the proceeds of the sale. Exceptions overruled.