## Facts

- Harry Ashworth was mill superintendent and general manager of A‑O Worsted Co., Inc.; Alfred Ashworth was vice president and principal stockholder of Midland Wool Combing Co., Inc.
- The Lockport Felt Company contracted with the defendants for combing approximately 20,000 pounds of raw wool, which Midland combed.
- The defendants then arranged to spin the same wool into yarn for a per-pound fee, despite Midland having no spinning facilities.
- The spinning was performed at A‑O’s plant using A‑O’s machinery, facilities, and employees.
- Lockport paid Midland by check based on invoices rendered for the spinning work.
- The work and contract were kept from A‑O’s officers other than Harry; the defendants secretly used A‑O’s plant and labor for their own benefit.
- Defendants were indicted for conspiracy and grand larceny, alleging they conspired to cheat and deprive A‑O of money, property, and the use of it, and that they stole A‑O’s money and the use of its property.
- The prosecution relied on Penal Law § 1290 and argued that the “use” of A‑O’s plant and labor was property (or an article of value) capable of being stolen.

## Issues

1. Whether unauthorized, secret diversion of an employer’s plant, machinery, and labor for private profit constitutes larceny under Penal Law § 1290 when no tangible property or money is taken from the employer.
2. Whether an indictment and proof alleging theft of the “use” of property (and related conspiracy) are legally sufficient under the then-existing larceny statute.

## Decision

- The Appellate Division reversed the judgment of conviction.
- The court held that, under Penal Law § 1290 as then written, the conduct proved did not constitute larceny.
- Because the larceny theory failed, the general verdict resting on larceny and the related conspiracy charge could not stand as alleged.

## Legal Principles

- Under Penal Law § 1290 (as then in force), larceny required appropriation of statutorily covered subject matter (e.g., money or personal property); mere diversion of the use of another’s property and labor, without such a taking, was not larceny.
- Economic value associated with unauthorized use of facilities or services does not, by itself, satisfy traditional larceny elements when the statute is limited to specified categories of property.
- When a conspiracy count is premised on commission of a substantive offense, failure of the substantive offense as charged defeats the conspiracy theory in that form.

## Conclusion

The court set aside the convictions because New York’s larceny statute did not reach a secret scheme in which employees used an employer’s plant and workforce to perform outside work for private gain without taking money or tangible property from the employer as required by the statute.


People v. Ashworth, 220 A.D. 498, 222 N.Y.S. 24 (App. Div. 4th Dep’t 1927)