First Department, May, 1906. [Vol. 113. If the facts set out in the depositions upon which the warrant here was issued be construed in the most liberal way consistent with a judicial determination, I am of the opinion that such facts do not establish that the crime of grand larceny in the first degree has been committed, as the same is defined by sections 528 and 530 of the Penal Code. First. Such facts certainly do not establish larceny as defined by the common law. The defendant had a right to give of his own funds to the chairman of the Republican national committee. There was no statute prohibiting such contribution, and such act was not, in and of itself, a crime. The relator made the contribution at the request of the president of the insurance company, with the express understanding that it would repay him. Having made the contribution, relying upon this understanding, he then had a claim against the insurance company for the amount advanced, and it is entirely immaterial, so far as the question here presented is concerned, whether or not such claim could have been enforced in a civil action. The claim existed, and if, in satisfaction of it, the defendant received from the insurance company the amount called for, in good faith, such reception and thereafter retention did not constitute larceny. Of this there can be no doubt because the statute provides that upon an indictment for larceny (and the sufficiency of the depositions must be tested in the same way that the sufficiency of an indictment would be) it is a sufficient defense that the property was appropriated openly and avowedly under a claim of title preferred in good faith, even though the claim were untenable. (Penal Code, § 548; People v. Ouley, 7 N. Y. St. Repr. 795.) The money belonging to the insurance company, if appropriated, was appropriated "openly and avowedly" by the relator, after all the facts had been stated to the finance committee, to reimburse him for the money which he had previously advanced. It was not stealthily taken, nor was there anything secretive about it. The fact that the check was drawn payable to the order of J. P. Morgan & Co., and so entered on the insurance company's books, is of no importance because it does not appear that the relator had anything to do with the drawing of the check, or had any knowledge of the entry in the company's books. Besides, the check was concededly for the purpose of reimbursing the relator for moneys which he had previously advanced. The finance committee knew App. Div.] First Department, May, 1906. that the president was about to repay the relator for this advance out of the funds of the insurance company by what is termed "executive order." There is not a single fact stated in the depositions from which a jury would have the right to find — and if they did it would be the duty of the court to set aside the finding -- that the relator in receiving the money in satisfaction of his claim, feloniously intended to deprive the insurance company of it; on the contrary, the only inference which can fairly and legitimately be drawn from such facts is that he believed he had a right to take it in satisfaction of his claim. The depositions are defective in that they do not show a felonious intent or any facts from which such intent can fairly be inferred. In McCourt v. People (64 N. Y. 583) the plaintiff in error stopped at the house of the prosecuting witness and asked his daughter, who was alone at the time, for a drink of cider. She refused to let him have it, and he thereupon opened the cellar door, went into the cellar, although forbidden by her to do so, and carried away a pail of cider. He was subsequently indicted, tried and convicted for burglary and larceny. On appeal the judgment of conviction was reversed, the court holding that the evidence failed to show that the accused entered the cellar with intent to commit a crime, and while there was evidence of an intent to obtain a drink of cider, and thus deprive the owner of his property, there was an absence of the circumstances ordinarily attending the commission of a larceny, and which distinguished it from a trespass, and all of the circumstances were consistent with the view that the transaction was a trespass merely. In People v. Woodward (31 Hun, 57) the defendant was found guilty of grand larceny in stealing a horse from the owner's stable and then killing it. At the conclusion of the trial the court was asked to instruct the jury that "If, before the taking of the horse, the intent was to take it and kill it, the crime would not be a felony, but an offense under the statute classed among misdemeanors, under the term of malicious mischief." The instruction was refused and on this ground alone, the judgment was reversed and a new trial ordered. The case is cited with apparent approval in People v. Bosworth (64 Hun, 78). In Devine v. People (20 Hun, 98), while a bartender was stooping to get a bottle, an outsider reached over the counter First Department, May, 1906. [Vol. 118. and took money from a drawer. He made no effort to secrete it, and thereafter returned it to the barkeeper, saying he took it for fun. He was subsequently indicted, tried and convicted, but on appeal it was held that the judgment could not stand, inasmuch as there were no facts or circumstances which justified a finding of felonious intent. In Abrams v. People (6 Hun, 491) a quantity of cloth was delivered to Abrams to be made into coats and then returned. He made the coats and then sold them and absconded with the proceeds. It was held that he was not guilty of larceny unless he intended at the time he received possession of the cloth to steal the coats. The relator, therefore, in receiving the money, did not commit larceny at common law. Second. Nor did he obtain possession of the money by false pretenses. It was not only voluntarily given to him by the president of the insurance company, but it was received openly and avowedly to reimburse him for what he had previously advanced. The case is devoid of every element from which it could be claimed possession was obtained by false representation. Third. The only remaining inquiry, then, is, was the money received in trust and thereafter converted to his own use? To this question, it seems to me, there can be but one answer. It was not received in trust; on the contrary, it was received to satisfy the relator's claim. But it is urged by the People that the relator was vice-president of the insurance company; was chairman of the finance committee, and as such was charged in law with the custody of the company's property, for which reason it was his duty when the same was received to turn it over to the treasurer or the proper custodian of the fund. It undoubtedly was the relator's duty to see to it, so far as he could, that the company's property was preserved and used solely for corporate purposes, but this did not prevent him from receiving money from the corporation in satisfaction of a just claim, nor did it make him guilty of larceny if he received money from the corporation in satisfaction of an illegal clain if he believed he had a right to receive it. It may be that the payment to the defendant was an ultra vires act, for which reason an action could be maintained by the corporation to reclain or recover such money, but if this be assumed, it does not show the defendant was guilty of larceny in receiving it, inasmuch as there App. Div.] First Department, May, 1906. are no facts stated from which, as we have already seen, a jury would be justified in finding a felonious intent, which is absolutely necessary before one can be found guilty of the crime of larceny. To say that the defendant's intent is a question for the jury is simply begging the question. As a general proposition, the intent of a person committing an alleged criminal act is for the jury, but if, in connection with the act which is alleged to be criminal, there are other facts and circumstances which negative the existence of a criminal intent, or are consistent with innocence, then a conviction cannot be had and it is the duty of the court to so hold as a matter of law whether the question be presented, as here, or on demurrer to an indictment, or on motion to discharge the defendant at the close of the People's case. 1 am of the opinion, therefore, for the reason stated, that the order appealed from should be reversed, the writ sustained, and the relator discharged. PATTERSON, J., concurred. PATTERSON, J. (concurring): I concur in the opinion of Mr. Justice MCLAUGHLIN. The affidavits presented to the city magistrate do not show that the crime of grand larceny in the first degree, as defined in the statute, was committed by the relator. It is conceded that criminal intent is an ingredient of the crime, is a fact and must be proven as well as the overt act. It is not charged in the information, nor is it shown by the affidavits, that the relator took, or received, or became possessed of the moneys of the insurance company feloniously. Criminal intent implies design, purpose and deliberation. It is not the act of taking the money which per se constitutes the crime of larceny, but there must be associated with the act the guilty purpose and design of depriving the owner thereof or appropriating the same to the taker's own use, or that of some person other than the owner. The fraudulent or felonious intent is an intent without an honest claim of right. (1 Whart. Crim. Law [10th ed.], 8883.) It is quite true that there are cases in which criminal intent will be inferred from the act itself; that is to say, where that act is in its nature wrongful. In the present case the act charged as inculpating the relator was his receiving money of a corporation in reim First Department, May, 1906. [Vol. 113. bursement of an amount he had paid out of his own private funds at the request of the president of that corporation, upon a promise of repayment from the corporate moneys. He undoubtedly had full knowledge that he was advancing money as a political contribution for and on behalf of the insurance company, and that he was to be repaid from funds of that company; but that knowledge does not necessarily imply an intent on his part to steal in receiving satisfaction of a claim which he honestly believed he had against the corporation and which constituted a debt due him, and that he had such belief appears in the statement made by him and which was received and acted upon by the magistrate as part of the proof upon which the warrant was issued. The contribution for political purposes was not, at the time mentioned in the information, prohibited by law. The officers and those in control of the insurance company had no power to use the money of the company for such a purpose, and the relator may be compelled by a civil action to make restitution of what he received, but the inference of an intent to steal the corporate money and that specific intent is required to be shown - cannot be drawn from the fact that in excess of corporate power corporate money was applied for a purpose not prohibited by law. "It is elementary, when a specific intent is required to make an act an offence, that the doing of the act does not raise a presumption that it was done with the specific intent." (People v. Plath, 100 N. Y. 592.) But it is argued that the surrounding circumstances disclosed by the affidavits in connection with the relator's position as an officer of the company sufficiently indicate a criminal intent running through the whole transaction, from its inception, in the request made by the president of the company up to the final act of the receipt of the money by the relator in reimbursement of his outlay. Upon the statements contained in the affidavits-and due weight must be given to all the facts therein stated the inference of criminal intent is not authorized but rather repelled. There are three affidavits, one of Mr. Kingsley, secretary of the finance committee of the New York Life Insurance Company, in which it is set forth that some time in December, 1904, a meeting was had of that committee, all of the members being present, including the relator and the president of the company, an ex officio member. It was stated by the president that he had promised to |