majority"> Jbnks, J.:

The defendant appeals from a judgment against him for a malicious prosecution. He charged the plaintiff with the larceny of a commission issued to the defendant out of a court of Tennessee, to take testimony. I think that the court did not err in charging that there was no larceny, and that there was not probable, cause. The defendant left these papers before the commission was executed in the keeping of the plaintiff for several days, then went to . the plaintiff’s country house to execute the commission. While the commission lay upon the table, filled out, signed and probably sworn to, the plaintiff took it into his possession, and thereafter refused ' the defendant’s demand that the commission be returned to him. *220forthwith. The plaintiff is a merchant of many years’ standing in the city of New York, and the defendant is a lawyer. The defendant was insistent that the commission be returned to him because, he says, of the formal instruction^ of his commission that he must certify that the depositions were returned without either being out of his possession or altered after they were taken. The commission was issued in a suit wherein ■ the plaintiff’s wife was plaintiff. The reasons given by the plaintiff were not fanciful or far fetched. It is entirely natural that such a witness, whose wife was the plaintiff in that suit, should desire to consult with counsel before committing the written testimony of his wife and himself to the' court of a foreign State through a commissioner who theretofore was a stranger to him.

I cannot see that a man. of ordinary prudence and caution, would have been justified in the belief that at this time the plaintiff intended to deprive the defendant of this paper permanently, or, in other words, to steal it. If he could not so believe, but rather that "the plaintiff then intended to keep it temporarily, and to return it to him, then there was no larceny. (2 Bish. Cr. Law, § 841; Whart. Am. Cr. Law [4th ed.], § 1868; Regina v. Trebilcock, 7 Cox Cr. Cas. 408; Regina v. Holloway, 3 id. 241; State v. South, 28 N. J. Law, 28; Archb. Pl. & Ev. Cr. Cas. [19th ed.] 358.) In Regina v. Trebilcock (supra) Lord Campbell, C. J., says: “ If- at the time of the asportation, his (the offender’s) intention is to make a mere temporary' use of the chattels taken, so. that thé dominus should again have the use of them afterwards, that is a trespass, but not a felony.” Sir James Stephen, in his History of the Criminal Law of England (Vol. 3, p. 132),says: “To this day it is part of the law-of this country, as settled by very modern cases, that .the motives which lead a man to commit theft are immaterial, and that the definition of the offence includes an intention to deprive the owner of his property, permanently.” In Regina v. Bailey (12 Cox Cr. Cas. 129) the prisoner was indicted under a statute that provided that “ whosoever shall; steal or shall, for any fraudulent purpose, take *, * * from any person having the lawful custody thereof * * * any part of any record, writ, return, panel, [or] process, * * * shall be guilty of felony.” The first count charged a stealing of certain warrant's of execution. . A bailiff had *221the legal custody of the warrants against the prisoner,, which the latter took away forcibly and kept. Lush, J., stated the case, and the court, per Cockbukn, O. J., decided that the first count could, not be sustained, saying that evidently it was the prisoner’s idea that if he could get the warrants from the officer he would thus deprive him of his authority and rid himself of the execution, but that the act was not done lucri causa, and that there was no felony.

That an intention to restore is neither ground of defense nor of mitigation of punishment, if restoration does not precede the complaint to a magistrate (Penal Code, § 549), does not help the defendant on the question of larceny. The statute reads: “The fact that the defendant intended to restore the property stolen or embezzled is no ground of defense or of mitigation of punishment, if it has not been restored before complaint to a magistrate, charging the commission of the crime,” and it, therefore, presumes that the property had at some prior point of time been stolen or embezzled, that is, necessarily there must have been an intent—whether fast or fleeting.— to deprive the owner of his property permanently. This section is rather a declaration than a departure in the criminal law. (Whart. Am. Cr. Law [4th ed.], § 1772; 2 Bish. Cr. Law, § 796.)

Probable cause is a question for the court when the facts are undisputed and admit of but one inference. (Hazzard v. Flury, 120 N. Y. 223 ; Fagnan v. Knox, 66 id. 525 ; Wass v. Stephens, 128 id. 123; Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321.) The versions of the parties vary, but not as to the principal features of the interview, out of which came the charge of larceny, and particularly not as to the statement of the plaintiff that characterized his taking, namely, that it was for the purpose of submission to his attorney, and that he would thereupon return the paper to the defendant.

The defendant insists that he is not responsible, because he stated the case to a magistrate, who thereupon issued the warrant; or, in other words, he is responsible for the truth of his statements to the magistrate, but not for the legal conclusions of that official therefrom, citing Thaule v. Krekeler (81 N. Y. 428); Anderson v. How (116 id. 336). Since the decision in Hazzard v. Flury (supra), I understand the rule to be that advice of counsel and the like is not a complete defense. In this case, where the question of probable *222cause was for the court, the advice of counsel' or of magistrate is of no importance, on that question. So far as it bears on malice, the evidence was before the jury, and the learned court submitted that question to it.

The learned counsel for the appellant insists that the court erred in excluding the decision of the judge in discharging the plaintiff. The questions excluded were whether on that proceeding the commission was directed to be returned, and whether such direction was not part of the decision. But, theretofore, the plaintiff had read in evidence the entire official record, which showed the decision ih the. manner and form required by law. (Code Crim. Proc. § 207.)

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.

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