State v. Cammeyer

Ogden, J. (Slidell, O. J., and Campbell, J., absent.) An application for re-hearing having been made in these cases, we have considered the reasons, and are satisfied with the judgment pronounced. We think no stronger illustration could be afforded of the correctness of it, that in passing on the question presented by the refusal of the Judge below to charge the jury that the facts proved did not establish the crime of larceny, we would be deciding a question of fact and not of law, than by quoting a portion of the opinion of the Judge in refusing a motion for a now trial, which is in these words : “ It is useless to go into an examination of cases, in which it has been decided that it was not theft where the owner has sold his property, either for cash or on credit, however *315 much such purchasers may have been induced by the false pretence of the purchaser, and in which the purchaser has absolutely taken the property without paying or being able to pay for it, because no case of that kind can apply to the present. Sines sold one hundred and eighty-four ounces and some pennyweights of gold dust, and no more, if he sold them at all, which the testimony does not establish. If they took then from him two hundred and forty instead of one hundred and eighty-four, it cannot be presumed he had parted with the possession of the fifty-six ounces with his full consent at all. This is a fact which the jury are to determine—a fact which they did determine, and I do not choose to disturb their verdict.” Re-hearing refused.