The tax cases cited by defendant's counsel are not applicable for the reason that the words of the exempting statutes exclude buildings and premises not exclusively used for purposes stated and also because such statutes are to be construed very strictly against exemptions from taxation, while the Liquor Tax Law is to be construed liberally in favor of those institutions like churches, schools and State buildings which are permitted to be a certain distance away from liquor selling.

Neither has the defendant any vested right in the liquor traffic which cannot be controlled or prohibited by the police power of the State. "The police power of the State," says Mr. Justice Field in Crawley v. Christensen, 137 U. S. 91, "is fully competent to regulate the business-to mitigate its evils or to suppress it entirely. The manner and extent of regulation rests in the discretion of the governing authority. It is a matter of legislative will only."

The Legislature could suppress the liquor traffic altogether and then the defendant would be obliged to close his place, although his reasons and arguments advanced now would be equally applicable. Likewise the Legislature can regulate the traffic by prohibiting the sale within half a mile of State grounds and the defendant must submit to the uncertainties and chances of this particular kind of business.

The case of Matter of Cullinan (Burr Certificate), 113 App. Div. 485, simply passes upon the effect of a stipulation made by attorneys and does not touch the main question.

Application to revoke license granted.

SUPREME COURT-APP. DIVISION-FIRST DEPARTMENT,

May 31 1907.

THE PEOPLE v. GEORGE BURNHAM.

(119 App. Div. 302.)

(1). GRAND LARCENY-STEALING OF CORPORATE MONEY BY AGENT AND TRUSTEE-PENAL CODE § 528, sub. 2.

In order to sustain a conviction under subdivision 2 of 528 of the Penal Code providing that a person having custody of the property of another as bailee, agent or trustee, etc., who appropriates the same with intent to defraud the true owner of his property is guilty of larceny, it is essential to show an "intent to deprive or defraud" the owner of his property or of its use. It is not essential to show an intention by the defendant to reap any personal advantage from the taking, as the crime consists in the intent to despoil the owner of his property.

(2). SAME-INTENT ESSENTIAL.

The defendant was general counsel and vice-president of an insurance company Several claims aggregating a large sum of money had been made against the insurance company by different parties, one being a claim by a former employee for moneys claimed to have been advanced to the president of the corporation, a brother of the defendant. This claimant asserted the validity of his claim both as against the corporation and against its president individually. The majority of these claims, including the claim against the president, were being prosecuted by one attorney. The defendant, acting on the direction of the executive committee of the corporation, of which he was not a member, settled the claims with money of the corporation drawn under a warrant signed by himself and a majority of the executive committee.

Held, that the defendant was not guilty under subdivision 2 of § 528 of the Penal Code unless he used the corporate moneys to pay a claim for which the corporation was not liable.

(3). SAME.

That the fact that the president of the corporation might be personally liable for one of the claims paid did not establish the fact that the corporation itself was not jointly liable, the claim being also asserted against it, and hence the facts were insufficient to sustain the judgment of conviction.

Held, further, that the evidence as a whole negatived the criminal intent essential to conviction under the statute.

That a person cannot be convicted of a crime without proof of facts which justify a conviction, and the exclusion of evidence which would

have proved such fact on the objection of the defendant does not justify an affirmance of the conviction.

(4). SAME.

That the exclusion of minutes of a meeting of the board of directors at which the defendant was present, which authorized the action taken by him in settling the claims was error, as they were competent to show that the executive committee gave authority for the settlement and to show the good faith of the defendant in obeying instructions.

That it was error to admit entries in the books of the corporation with which the defendant had nothing to do and of which he had no knowledge showing the payments made in settlement of the actions, for the books of the corporation are not evidence as against an officer in a criminal prosecution against him.

(5). SAME.

That it was error to admit receipts given by the defendant to a third person for the deposit of canceled checks and the checks themselves, which indicated that they had been passed to the credit of the Superintendant of Insurance, such evidence merely tending to prejudice the defendant.

(6). SAME.

That it was error to charge in substance that a conviction could be had upon proof that the defendant, as an officer of the corporation, paid a personal claim "asserted" against another officer, for it was also necessary to find that the claim was one for which the corporation itself was not liable.

APPEAL by the defendant, George Burnham, the younger, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 17th day of December, 1906, convicting him of the crime of grand larceny in the first degree.

Morgan J. O'Brien, for the appellant.

Robert C. Taylor, for the respondent.

INGRAHAM, J.:

This appellant was indicted with two other persons for grand larceny in the first degree. The indictment contains nine counts, but the district attorney elected to proceed upon the first and

second counts. The first count is based upon the larceny of the sum of $7,500 of the Mutual Reserve Fund Life Association, and the second count alleges that the three defendants, jointly having in their possession, custody and control certain goods, chattels and personal property of the said association, which was the true owner thereof, to wit, the $7,500 mentioned in the first count of the indictment, did feloniously appropriate the said property to their own use, with intent to deprive and defraud the said corporation of the same and of the use and benefit thereof, and the same goods, chattels and personal property of the said corporation did feloniously steal, against the form of the statute in such case made and provided. This indictment was based upon section 528 of the Penal Code, the first count being the 1st subdivision of that section, and the second count under the 2d subdivision. I do not understand that the district attorney claims to sustain the conviction under the first count; but it is under the second count, based upon the 2d subdivision of the section, that the conviction is sought to be upheld. That subdivision provides that "a person who, with the intent to deprive or defraud the true owner of his property or of the use and benefit thereof or to appropriate the same to the use of the takee, or of any other person * * * having in his possession, custody or control, as a bailee, servant, attorney, agent, clerk, trustee or officer of any person, association, corporation money, property, evidence of debt for contract, article of value of any nature or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof, steals such property and is guilty of larceny.

* * *

any

This section has been lately under discussion both in this court and in the Court of Appeals, in the case of People ex rel. Perkins v. Moss (113 App. Div. 329; affd. 187 N. Y. 410). The Court of Appeals, Judge Gray delivering the opinion of the majority of the Court, said: "It is apparent that what con

stitutes the crime of taking the property of another for the use of the taker, or of that of any other person than the legal owner is the intention with which the act is committed. Under the statute the crime of larceny no longer necessitates a trespass; but it does need as an essential element that the "intent to deprive or defraud " the owner of his property, or of its use, shall exist. The intent, by necessary implication, as from its place in the penal statute, must be felonious, that is to say, an intent without an honest claim of right. It is not now essential as it was under the Roman and early English law, that the intention of the taker shall be to reap any advantage from the taking. The statute makes the crime to consist in the intent to despoil the owner of his property. That is necessary to complete the offense and if a man, under the honest impression that he has a right to the property, takes it, it is not larceny, if there be a colorable title. * * The charge of stealing property is only substantiated by establishing the felonious intent. Without it there is no crime; for it would be a bare trespass. It is the criminal mind and purpose going with the act, which distinguish the criminal trespass from a mere civil injury. * * * It is of the very nature of crime that the criminal act shall involve the violation of a public law or a wrong, which, because grossly immoral and vicious, affects the public injuriously." And subsequently calling attention to section 548 of the Penal Code, it was said: "This section is an expression of the emphasis which the statute lays upon the intent with which the property of another is taken. It is a qualification of the provisions of section 528 of the Penal Code, defining what shall constitute the crime of larceny." In the consideration of this case, therefore, we must start with the proposition that, to sustain this conviction, we must find that this defendant appropriated money of the Mutual Reserve Fund Life Association in his possession, custody or control to his own use or to that of another