Larceny is so subtle that it is difficult to say ; it is this, and nothing else ; or this is it, and nothing else. It is liable to be confounded with fraud and trespass.
If A boiTOW a horse from B with the felonious intent to deprive B of it, and to appropriate it to his own use, and does .so, A is guilty of larceny. But if A borrow of B twenty •dollars with the same intent, it is not larceny, but it is fraud
This distinction is settled by the authorities. It is satisfactorily treated in Welsh v. People, 17 Ill. Rep. 339, and the •cases there cited.
The reason for the distinction is, that in lending the horse, the owner expected the return of the same horse and did not part with the title / the property remained iu him. And therefore, when the borrower, subsequently, feloniously converted the horse, it related back, and was a theft from the beginning. But when B loaned the money he parted with the title, and •did not expect the return of the same money, (unless loaned with that express understanding) but made it a debt, which the borrower might pay with any other money. And therefore, *128this was fraud and not larceny. That distinction is the de-fence relied on in this case..
It is insisted that the prosecutor loaned the defendant the twenty dollar bill, and thereby voluntan y j art,ed with the posxe-'tsiwt expecting it to be returned in kind; bnt with the title, and that the defendant having by contract acquired .the title to the bill, as well as the possession, did not by what subsequently passed, steal, take and carry away the ¿tr-jpei ty of the protii-eiUor.
It must be conceded that if the prosecutor loaned the defendant the bill, then the defendant is not guilty of lm ceny, of whatever else he may be guilty. But put the most, liberal construction upon the wliolé transaction for the defendant, and there is not a single feature in it that looks like a contract, nor a particle of testimony that tends to show it, and but for the fact that juries are. very safe judges of such matters, it would seem to be trifling with the administration of justice to have left the question to the jury. His Honor might very well have told the jury that there was no evidence of any contract of lending.
The prosecutor was a feeble, nervous old man, going home from market in his wagon with a considerable amount of money. It is natural that that fact should have made him timid. The-defendant, a colored man, overtakes him, and is permitted to get into his wagon and ride, pulls out cards and proposes to gamble, which the old man refused to do. That was calculated to alarm him. They get to a thicket, when another colored man, Aiken, comes up and asks the old man for tobacco, which he refuses to give him. The defendant addresses Aiken as “ stranger,” and proposes to gamble with him, and they do gamble. Defendant then says, “ stranger, I will bet you this old man in the wagon can draw the prize card.” And he proposes for the old man to bet., which he refuses to do. The defendant then says to the old man, “ you must lend me twenty dollars and draw for me.” The *129old man takes out bis pocket book, but does not show his money. The defendant put his arms around him and draws, him around to the other side of the wagon. At this time a third man, white, comes up and defendant says, “ Hallo, stranger, I want you to hold stakes.” He then takes hold of the old man’s pocket book, which the old man holds on to, unrolls the money, the old man feels some of it go out of his, hands ; he does not know how much; (it turns out to be five twenty dollar bills;) the defendant hands one twenty dollar bill to the third man to hold ; tells the old man to draw a card for him, which he does ; defendant pretends to have lost the bet; directs the stake holder to hand over the money to Aiken, and they all three make off together and leave the old man in the road. The old man was examined as a witness and swore that lie did not lend the money, but he did not resist the taking.
That was the' transaction-; those were the facts. Now-when the facts are ascertained, whether they amount to a contract is usually a question for the court. And yet in the greatest liberality to the defendant, it was left to the jury to-say whether the old man did not voluntarily tend his money to those three highwaymen, all of whom were strangers, who had stopped him on the highway in a thicket, and by unmistakable conduct showed that they meant to have his money. When he refused to bet or play, and the defendant said to him, “ Well, if you won’t bet you must lend me the money,” if he had handed him the money it could not be tortured into a ■•oluntary loan. But he did not do that. He took out hia pocket book, but held on to it, showing- Ms unwillingness to part with it as long as it was safe to keep it. But the defendant took him in his arms and carried him to the other side of the wagon, (showing how completely the old man was at his mercy,) took hold of the pocket book and took out the money the old man feeling it pass out of his hand. And because the old man did not resist him, putting his life in peril, it is left, *130to the jury to say whether it was not a voluntary loan. And that too, when the nncontradicted testimony of the old man is, that it was not a loan but a taking. It is not pretended. that there was any conflicting testimony to be reconciled; but it is insisted that from the undisputed facts a loan is implied by the law or might be found by the jury. But we are of the opinion that the undisputed facts make a plain case of larceny.
There is no error. This will be certified.
Per CuRiam. Judgment affirmed.