Nature of the Case
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Facts
D took a payroll check, payable to the brother in the face amount of $97.92, to a bank where the brother maintained an account. D asked the teller to deposit $80 to the credit of the brother's account and to deliver to him the balance of the check in case. The teller was inexperienced. She first inquired of another teller whether the check could be credited to an account in part and cashed in part. Having been told that this was permissible, she required D's endorsement on the check, and, misreading its date (12-06-59) as the amount payable, she deducted the $80 deposit and placed $1,126.59 on the counter. There were two strapped packages, each containing $500, and $126.59 in miscellaneous bills and change. D took the $1,126.59 in cash thus placed upon the counter and departed. The teller who handled the transaction was found to be short in her accounts by $1,108.67, the exact amount of the difference between the $1,206.59, for which she had supposed the check to have been drawn, and $97.92, its actual face amount, and that her adding machine tape showed that she had accepted the check as having been drawn for $1,206.59. D stated that he received only the $17.92, to which he was entitled, denying that he had received the larger sum. D was charged with larceny. The jury was instructed that they should find D guilty if they found the much larger sum was placed upon the counter and was taken by the D with the intention to appropriate the overpayment, or if he thereafter formed the intention to, and did, appropriate the overpayment to his own use. The jury was deadlocked, and the Court instructed the jury regarding its duty to agree, but without the ameliorating admonition that no juror should yield his conscientious conviction. The jury again retired and, in a few minutes reported it had reached an agreement upon a verdict. D was convicted and appealed.
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