The opinion
Brown, J.
(dissenting, with whom Smith, J., joins). This case implicates an important issue: namely, whether the conduct described in the complaint lies within the purview of the criminal law. I am of opinion that it does, and respectfully dissent.
I recognize that the question presented here has potentially far-reaching effect. If unpaid commercial vendors, in general, are given the ability to haul delinquent customers before the criminal courts, long settled expectations as to the nature of business relationships would be altered. The civil law, as derived from sources such as the Uniform Commercial Code and the Bankruptcy Code, typically has provided the exclusive mechanism for resolution of disputes between merchants and their customers. The debtors prison is an element of the English legal system that was not imported here. This, however, is an unusual case.
*221 To prove larceny, it is necessary for the government to establish that (1) something specific was taken (and in the case of the precise offense charged here, that the item in question had a value in excess of $250); (2) that the item purloined was the property of another; and (3) that the defendant took it with the specific intent to permanently deprive the victim of his property. See Commonwealth v. Johnson, 379 Mass. 177, 181 (1979).
The parties, in their briefs, evince some confusion over the first point: namely whether it was money or a fish that the defendant pilfered. To the extent that the fact finder expressly indicated that the conviction was based upon the theft of the money, I conclude that we are bound to justify the conviction, if at all, upon that theory. 1 Just as well, perhaps, for by all appearances the victim tendered the fish voluntarily, and authorized the defendant’s firm to broker a sale. Indeed, the victim had no grievance until after the auction when he did not receive his portion of the proceeds.
The next issue is a little thornier: to whom did the money from the sale belong. If the defendant — or perhaps even his business — had title to the funds, subject perhaps to some form of commercial obligation to the victim, the conviction likely could not stand. Here, however, the civil law intervenes. Unless otherwise agreed, title to any property consigned for sale remains with the consignor. In civil law terms, a bailment is created. See Aldrich v. Hodges, 164 Mass. 570, 571 (1895). See also Sturm v. Boker, 150 U.S. 312, 329 (1893). 2 Likewise, the consignor retains title to the proceeds of any sale until the *222 consignee remits the consignor’s share. After the auction, therefore, legal title to the funds remained with the victim. When the defendant converted the money to his own use, he unambiguously took something that belonged to another. 3
This last point is what takes this case out of the realm of most business transactions. A larceny conviction ordinarily would not be appropriate where, for example, a businessman orders his monthly supply of staples on credit, and then discovers at the end of the month that he does not have the money to pay the bill. In these circumstances, nothing was stolen — at least not for the purposes of G. L. c. 266, § 30. The staples were supplied voluntarily by the vendor, and title passed to the purchaser at the time of delivery. See G. L. c. 106, § 2-401(1)-(2). The unpaid bill amounts to a commercial debt that may become the subject of a tort claim, but it is not a tangible res that may be converted. See G. L. c. 106, §§ 2-607(1), 2-709(1)(a), 2-401(2).
I disagree with the majority; the reasoning and result I reach would not implicate a vast majority of commercial transactions. Rather, its application is limited strictly to the realm of consignment sales and cognate arrangements. What is unusual, and, for me, ultimately dispositive, about the instant situation is that the victim here retained legal title, first to the tuna, and then to the auction proceeds. The diversion of the latter to the defendant’s own purposes satisfied the second element of the crime of larceny — conversion of the tangible property of another. The staple vendor could make no similar claim.
If this seems an overly technical basis on which to determine whether or not conduct falls within the reach of the larceny statute, in practice, it is usually quite clear that a consignee is accepting a special responsibility for the property of another for *223 potential sale. This is often an advantageous arrangement for a merchant: as noted already, where goods are advanced on credit, they become a merchant’s property, and he is required to pay for them whether sold or unsold. In exchange for the reduced risk associated with a consignment sale — where unsold items are simply returned, see Deyrmanjian v. Palais, 311 Mass. 553, 554 (1942) — a concomitant burden settles on the consignee to safeguard the consignor’s property, segregating it from his own assets. Here the defendant forgot this obligation, and treated what he knew to be the victim’s property as though it were his own. This is the essence of larceny.
In the end, this is a fairly simple case. The victim caught a fish, and entrusted it to the defendant for the narrow purpose of conveying it to auction. In these circumstances, the defendant was the victim’s agent, a mere factor — no reasonable argument can be made that ownership of the fish ever passed to the defendant. Indeed, the majority never identifies any specific moment when title to the fish plausibly might have passed to him. When, after the auction, the defendant pocketed the proceeds, he stole the victim’s money.
As to the question of the defendant’s intent — i.e., whether = he intended to deprive the victim of his share of the sale proceeds indefinitely or only until his business fortunes changed — unlike the majority, I defer to the fact finder. Intent, relating as it does to a subjective state of mind, almost never is proved by direct evidence. See Commonwealth v. Stewart, 411 Mass. 345, 350 (1991). The trial judge, who had the opportunity to observe the witnesses firsthand, apparently concluded that the defendant had it in mind to keep the victim’s money. I cannot fairly say that such an inference was wholly unsupported by the evidence here. 4 See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
*224 Lastly, the majority, without pointing to any case authority, suggests that the Bankruptcy Code provides the sole medium through which the victim can find a remedy here. In essence, the majority argues that the bankruptcy laws have preempted the criminal law in this area. This is a spurious assertion. State criminal law is a matter purely of State concern. Although it is possible that Congress, acting through the power of the commerce clause, might preempt the right of a State to enforce its criminal laws, no authority — statutory or common law — has been presented that even suggests that the Bankruptcy Code ever has been interpreted to have such preemptive effect. In the absence of any such authority, I reject the majority’s novel construction.
At the conclusion of all the evidence, the judge found the defendant guilty of larceny but not guilty of larceny by check. The judge then observed, “[t]he larceny, if it occurred at all, occurred on the failure to account for the funds after the [fish] auction.
“And I think by failing to turn over [Souza’s] share of the money at that point in time that the [defendant committed a larceny.”
The court in Sturm v. Boker, 150 U.S. at 329-330 , stated, “The recognized distinction between bailment and sale is that ... the title to the property is not changed. . . .
“[An] agency to sell and return the proceeds . . . stands upon precisely the same footing, and does not involve a change of title. An essential incident to trust property is that the trustee or bailee can never make use of it for his own benefit.” The most widely cited modem commentator takes exactly the same approach: “A consignment of goods for sale does not pass the title at any time, nor does it contemplate that it should be passed. The very term implies *222 an agency, and the title is in the consignor, the consignee being his agent.” Hawkland, Consignment Selling Under the Uniform Commercial Code, 67 Com. L.J. 146, 147 (1962), citing Rio Grande Oil Co. v. Miller Rubber Co., 31 Ariz. 84 (1926).
In many key respects, this case mirrors the situation in Commonwealth v. Hull, 296 Mass. 327, 329-330 (1937). There the defendant, a stockbroker, was entrusted with securities. The owner instructed the defendant to sell the bonds and deliver up the proceeds. The defendant agreed. However, after selling the bonds, he used the proceeds to secure unrelated debts of his employer. In these circumstances, the court concluded that the defendant could be convicted of larceny of either the bonds (since there was evidence that he intended to convert them to his employer’s use from the outset) or the proceeds from the sale. Id. at 330 .
While the majority is correct that there was no direct evidence of the defendant’s intent here, I note that the intent required for a larceny conviction (i.e., an intent to deprive the victim of his property permanently) may be inferred from actions that suggest indifference as to whether a victim recovers his property. See Commonwealth v. Souza, 428 Mass. 478, 490 (1998). Here, such indifference reasonably might be inferred from the fact that the defendant accepted a consignment knowing the fragile state of his business, and the concomitant likelihood that the defendant would not be able to remit the victim’s money to him after the auction. Further, unlike the majority, I see no necessity for the defendant to have hatched a plan to steal from the victim at the time of the consignment. It would suffice to support the conviction here *224 even if it could be inferred that the notion to steal only crossed the defendant’s mind once he had the auction proceeds in hand.