## Facts

- Four defendants earned $6 for shucking corn and went to the Bank of Uniontown to get $2 changed into smaller coins to divide the money.
- Sandy Waggener entered the bank alone and asked the cashier for change of $2.
- The assistant cashier gave Waggener two half-dollars and a paper-wrapped roll described as “twenty nickels.”
- Waggener did not open the roll in the bank and returned to the other defendants; the group walked several blocks to divide the money.
- When they unwrapped the roll, they discovered it contained twenty $5 gold coins rather than nickels.
- The defendants kept and divided the gold coins rather than returning them to the bank.
- At trial, the court instructed the jury it could convict if the defendants initially shared the cashier’s belief that the roll contained nickels, later discovered the gold, knew it was delivered by mistake, and nevertheless converted it to their own use.
- The trial court refused a defense instruction requiring the jury to find felonious intent at the moment the coins were first received at the bank.
- The defendants were convicted of grand larceny and appealed.

## Issues

1. Whether a defendant who innocently receives property delivered by mistake, and only later decides to keep it after discovering the mistake, can be convicted of grand larceny absent felonious intent at the time of receipt.
2. Whether a jury instruction permitting conviction based solely on post-receipt discovery of the mistake and subsequent conversion misstated the elements of larceny.

## Decision

- The Court of Appeals of Kentucky reversed the grand larceny convictions and remanded.
- The court held the instructions allowed conviction without requiring felonious intent at the time of the taking, an essential element of larceny.
- The court concluded that later conversion of property initially received with the owner’s apparent consent does not retroactively make the original acquisition a trespassory taking for larceny purposes.

## Legal Principles

- Common-law larceny requires a trespassory taking and carrying away of another’s personal property without consent, accompanied by felonious intent at the time of the taking.
- When property is delivered with the owner’s apparent consent and the recipient lacks felonious intent at receipt, subsequent discovery of a mistake and later misappropriation do not satisfy larceny’s concurrence requirement.
- Misappropriation after lawful possession may fall under other offenses (such as statutory embezzlement-type crimes), but it is not larceny on a theory that relies solely on later intent.

## Conclusion

Because the defendants’ possession began through an apparently consensual delivery and without contemporaneous intent to steal, their later decision to keep the mistakenly delivered gold could not support a grand larceny conviction; the trial court’s instruction removing the requirement of intent at receipt required reversal and remand.


Cooper v. Commonwealth, 110 Ky. 123, 60 S.W. 938 (Ky. Ct. App. 1901)