24 Gratt. 563 | Va. | 1873
Lead Opinion
The indictment in this case is founded upon the 49th section of chap. 192 of the Code, which is in the following words: “ If a person obtain by any false pretence or token, from any person, with intent to defraud, money or other property which may be the subject of larceny, he shall be deemed guilty of the larceny thereof.”
The indictment contained but one count, which is a simple count for larceny ; and charges that “William J. Anable, on the 27th day of March, in the year one thousand ■eight hundred and seventy-two, at the said city.(of Richmond), and within the jurisdiction of the Hustings court ■of the city of Richmond, a certain check, the same being an order to the Planters Rational Bank, dated Richmond, March 27th, 1872, for the payment of three hundred ■dollars to E. B. Hewburu or order, and endorsed Edward B. Hewburn, and of the value of three hundred dollars,
As to the question so elaborately and ably argued by the prisoner’s counsel, that the statute declaring that a party who obtains money or other property, the subject of larceny, “shall be deemed guilty of the larceny thereof,” should be construed as fixing the punishment of the offence, and not as changing the mode of proceeding or the form of the indictment, it is sufficient to remark, that whatever may be the view of this court upon that question, as an original proposition, it cannot now be reopened, and must be considered as res adjudicata.
The principle settled in Dowdy’s case, 9 Gratt. 727, followed in Leftwich’s case, 20 Gratt. 716, and recently in Pierce’s case, 21 Gratt. 846, have fixed the judicial interpretation of the statute. That interpretation, accepted and acted upon by the profession since the year 1852, and the Legislature, with full knowledge of this judicial, interpretation, never having amended the statute, it would be mischievous to the last degree now to change-it; and the rule stare decisis must now prevail. It must, therefore, be now held as the settled law of this State, that upon an indictment simply charging larceny, the commonwealth may now show either that the subject of the lai’ceny was received with a knowledge that it was-stolen, or that it was obtained by a false token or false pretence.
This is sufficient to dispose of one of the grounds of' error assigned and much relied on by the prisoner’s-
First. The refusal of the court to give the first tion asked for by the prisoner’s counsel.
That instruction is as follows: “ If the jury believe from the evidence, that the prisoner had sums of money audited and allowed him by the board of supervisors of Henrico county, sufficient to pay all existing legal warrants drawn by him in his own favor, and passed to and owned by other parties, which have been registered on the books of the treasurer of the county before the warrants said to have been gold to Hr. "White, and also to pay the warrants of Hr. White, then they must acquit the prisoner.”
I am of opinion that this instruction ought to have been given. This instruction asserts the proposition, that the prisoner could not be found guilty of obtaining the check of Hr. White by false pretences, if at the time the warrant was sold to him the prisoner had funds audited and allowed him by the board of supervisors sufficient to pay this warrant and all others which had been drawn by him and registered upon the books of the treasurer of the county.
Flow, while the statute declares that a party obtaining money or other thing of value by false pretences “shall be deemed guilty of the larceny thereof,” it is manifest that he cannot be found guilty under a simple count charging him with larceny, any more than under one charging specifically the offence of obtaining money or other property by false pretences, if there is wanting in the proof any of those elements which constitute that offence. To constitute the offence described in the statute four things must concur:
1. There must be an intent to defraud;
2. There must be an actual fraud committed;
4. The fraud must be accomplished by means of the false pretences made use of for the purpose; that is, they must be in some degree the cause, if not the controlling and decisive cause, which induced the owner to part with his property.
If any of these essential elements are wanting, the offence is not made out. But especially is the gravamen of the offence that the pretences are false; and if the prisoner can show that the representations upon which he obtained the property from the owner are true he cannot be convicted; and certainly all testimony tending to show that fact is proper to be considered by the jury.
If the hypothetical case put in the instruction offered by the prisoner’s counsel, could be made out by the proof (and of this the jury must be the sole judges), then the representations made by the prisoner, in offering the warrant for sale, that he had allowed and audited in his favor a sufficient fund to meet this warrant was true and not a false pretence.
It is a well-settled rule, established by repeated decisions of this court, that if there is any evidence before a jury tending to prove a case supposed in au instruction asked for, and the instruction propounds the law correctly, it should be given. In Hopkins Brothers v. Richardson, 9 Gratt., 496, Lee, J., delivering the opinion of the court, said: “ In a plain case of the total absence of evidence tending to make out the supposed case, the court may well refuse to give any instruction based upon it. But where there is such evidence, of however little weight it may appear to be to the court, or however inadequate in its opinion to make out the case supposed, it is best aud safest for the court not to refuse to give the instruction asked for if it propound the law correctly.”
The objection taken to the instruction iu this court is, that it is limited to those warrants which had been registered on the books of the treasurer; while the evidence shows that there were a number of warrants sold by the prisoner which were not registered; and that, taking all the warrants, registered and unregistered, the prisoner had disposed of warrants to an amount largely exceeding the fund to his credit, due from the county of Henrico; and that therefore it was plain that the prisoner had obtained money upon some of these warrants by falsely representing that he had funds to his credit to meet them, •when in fact he had largely overdrawn on that fund.
That the prisoner had largely overdrawn on the fund -due him is abundantly shown; and that somebody had been defrauded by him, upon a false pretence, is equally clear. But the question is not whether he has cheated
It was this question which was submitted to the jury in the first instruction, and they were in effect asked to-be instructed that if the facts therein stated were true, there w^as no false pretence, and they must acquit the prisoner. In other words, the proposition submitted was simply this, that if the jury should find that at the time the warrant was sold to White the prisoner had to his credit funds sufficient to pay all outstanding warrants drawn in his favor and registered on the books of the treasurer of the county of Henrico, and also to pay the-warrants sold to White, then there was no false pretence,, and the prisoner could not be found guilty.
This was not an abstract proposition, but there was-evidence strongly tending to support the hypothetical case stated. This evidence I propose now briefly to notice. It is important, however, first to refer to the act of assembly prescribing the mode of auditing, and registration and payment of warrants upon the county treasurers. It is sufficient for the purposes of this case to note the 10th and 11th sections of chapter 170, Sess. Acts, 1871-2, which are as follows:
“ § 10. He (the treasurer) shall keep a well-bound book in which he shall make an entry of all warrants or orders legally drawn upon him by the County or Circuit court, or the board of supervisors for the county, and presented for payment, stating correctly the date, amount, number, in whose favor drawn, and the date the same-was presented; and all warrants or orders so presented*571 shall be paid in the order presented, out of the fund drawn upon.
“ § 11. Ho county treasurer shall refuse the payment of any warrant or order legally drawn upoD him and presented for payment, for the reason that warrants or orders of prior presentation have not been paid, when there shall be money in the treasury belonging to the fund drawn upon sufficient to pay such prior warrants or orders, and also such warrants or orders so presented; but such treasurer shall, as he shall receive money into the treasury belonging to the fund so drawn'upon, set the same apart for the payment of warrants or orders previously so presented, and in the order so presented,” &c.
It will thus be seen that all warrants or orders on the county treasury are to be registered according to the date of their presentation, and to be paid in the. order presented. Let us now look to the evidence certified by the court below. It is proved that in Mai’ch 1872 there was due to the prisoner from the county of Henrico the sum of $1,649, the sum of $225 being the balance due him from the levy of 1871, and the sum of $1,424 being due him out of the levy of 1872. It is further proved that on the 16 th day of March 1872, which is the date of the warrant sold to White, (which the court certifies to be the same warrant for which the check, the subject of the larceny charged ■was giveu,) there stood upon the treasurer’s books wai’rants registered and drawn in favor of tbe prisoner amounting to the sum of $1,664. Hut- of this amount, two warrants, drawn in favor of J. A. Smith for $350 each, were delivered to Smith, according to Smith’s own statement, as collateral security for a note of about $500, ,not due until April 1872, upon the agreement that Smith would return the warrants whenever prisoner would satisfy the note when it became due. As part also of this aggregate of the amount of warrants regis
The evidence further shows that White did not act alone upon the representations made by the prisoner or his agent. He did not purchase the warrant until he
I am constrained to say that upon this review of the evidence, the hypothetical case stated in the instruction refused, was strongly supported by the facts proved, and ought to have been given. I repeat, it is uo answer to this view to say that the evidence shows that other warrants, not registered, were sold by the prisoner, and that he overdrew largely upon the fund credited to him. This is all true. He did obtain money under, false pretences from some of the parties to whom he sold warrants which wrere not registered before Hr. White’s; but it must be constantly borne in mind that the specific charge against the prisoner was, that he “ did steal, take and carry away,” a certain eheeh, the property of Dr. White; and the question is, did he obtain that check upon false pretences. If the hypothetical case stated in the instruction be true, he certainly did not; and it was clearly for the jury to decide whether the supposed facts were sustained by the proofs in the cause or not. The refusal of the court to give the instruction asked for was in effect to prevent the jury from considering testimony 'which tended to negative the false pretence and the intent to defraud. And the case presents the strange anomaly that the prisoner
I am further of opinion that there was no error in the • refusal of the Hustings court to give the 5th and 6th instructions asked by the prisoner’s counsel, nor in giving, the 3rd instruction with the addendum made by the court.
I am therefore of opinion, for the reasons above given, as to the said court refusing the 1st instruction, that the judgment of the Husting court be reversed and annulled, and that the prisoner be remanded to said Hustings court, for a new trial; at which trial the said first instruction,, or one similar thereto, if asked, shall be given by said •court.
Moncure, P. I am so unfortunate as to differ from .all my brethren in this case in the result at which they have arrived, and I will proceed to deliver my own opinion on the different questions arising in the case.
The most important question in this case, and the one most discussed by the learned counsel for the plaintiff in error, arises on the second and last bill of exceptions to the opinion of the court overruling the motion for a
The affirmative of the question has, in effect, been three times unanimously affirmed by this court: first in Dowdy's case, 9 Gratt., 727, 734, decided in 1852; secondly, in Leftwich’s case, 20 id., 716, 719, decided in 1870; and thirdly, in Price’s case, 21 id., 846, 850. In the first of these cases the offence was receiving stolen property, knowing it to have been stolen. In the second the offence was obtaining property by false pretences, and with intent to defraud; and in the third the offence was, as in the first, receiving stolen property, knowing it to have been stolen. In regard to both of these offences, and also in regard to the offence of embezzlement of property by officers, carriers and other bailees, the statute uses identically the same language, and declares that he who shall receive or obtain, or convert to his own use by such means the property of another, “shall be deemed guilty of larceny thereof.” Code, ch. 192, §§ 20, 21, 22 and 49. It is manifest that this same language used in each of these sections was used in the same sense, and must receive the same construction.
One would suppose that after these repeated affirmations ty the unanimous opinion of this court, the question would be considered as settled, whether rightly or wrongly, and as alterable only by an act of the legislature. But the counsel for the plaintiff in error contended that all these unanimous affirmations by this court were but obiter dicta, not necessary to the decision of the cases in which they were made, and that therefore they were not binding authority; that the question has never, in fact, been decided bjT this court, and is now a new question.
The course of legislation under which this question arises was substantially commenced by the legislature of 1847-8, in whose act, commonly called the criminal code, the provisions before referred to, or most of them, were substantially embodied. They were afterwards copied, with some extension and verbal alteration, into the Code of 1849. Hot long after the enactment of that code, to wit: in July 1852, Dowdy's case came before this court for decision; and the occasion seemed to the court
Such has not only been the repeated and uniform construction of these provisions of the law, which are not only in pari materia, but are contained in the same chapter of the Code, and are expressed, so far as the question under consideration is concerned, in identically the same language; but it seems to me to be their plain and necessary meaning. This language in all of them is: “he •shall be deemed guilty of larceny thereof;” that is, larceny of the goods so received, or so embezzled, or so •obtained under false pretences. Eow, what is the definition of larceny? “The felonious stealing, taking and carrying away of the goods of another.” Suppose these provisions, instead of saying “shall be deemed guilty of •the larceny thereof,” had used the definition of larceny: had said “he shall be deemed guilty of ‘feloniously stealing, taking and carrying away the goods ” so received, or so embezzled, or so obtained by false pretences,” could there have been a doubt but that the accused might have been charged in the indictment with a larceny of the goods in the common form? And is there any conceivable difference in meaning between these two forms of expression? I think not.
This construction is confirmed by the manifest objects of these provisions, according to my understanding of
The learned counsel in his argument spoke of this ■course of legislation as something different from what has ever existed in England. But it singularly happens that the standard English work from which he read most of his law, Roscoe’s Criminal Evidence, page 77, informs us ■.that the 24th and 25th Vict., ch. 96, § 72, provides that
If the true construction of our statute be not as before-stated, what can be its meaning? The learned counsel1 argues that its meaning merely is to make the offencesin question punishable as larceny. How-, if that had been the only meaning, why did not the legislature expressly say, as it might in at least as few words have done, “shall he punished as for the larceny thereof ?” Why, on the contrary, did it say “he shall be deemed guilty of larceny thereof?” — that is, deemed guilty of larceny, not only for the purpose of punishment, but for all purposes. There is no limitation or restriction of the general words-used. ■ This view is confirmed by the phraseology of the-acts referred to in the Session Acts of 1831-32, p, 22, §10, and of 1842-43, p. 58, § 2.
I have said much more on this question, perhaps, than I ought to have done, inasmuch as we are all agreed, at least in this, that the construction of the law for which I contend must now be considered as its settled construction, however the question might be regarded if it were an originaTone. I have done so mainly because the:
The first error assigned is, the refusal of the court to give the first instruction asked for by the accused. That instruction is in these words:
“ 1. If the jury believe from the evidence that the prisoner had sums of money audited and allowed him by the board of supervisors of Henrico county sufficient to pay all existing legal warrants drawn by him in his own favor, and passed to and owned by other parties, which have been registered on the books of the treasurer of the-county before the warrants said to have been sold to Hr. "White, and also to pay the warrants of Hr. White, then they must acquit the prisoner.”
It appears from the evidence certified in the case, that county levies to a very large amount had been made in the years 1871 and 1872, by the board of supervisors of
To state intelligibly the question presented by the first instruction, it seems to be proper to notice briefly some of the provisions of the law in regard to the powers and duties of the board of supervisors of a county, and of some of the officers of the board and county. They may be found in two acts in the Session Acts of 1869-70, pp. 257 and 269; one of them being chapter 179, entitled “an act prescribing the duties and compensation of county officers; ” the other being chapter 188, entitled “an act prescribing the duties and compensation of certain township officei’s.” These are the first acts which were passed under the new Constitution, which introduced the present system of county organization. They were in force when the transactions involved in this case occurred, and therefoi’e govern it; though, I believe, the acts now in force on the same subject, being chapters 170 and 230 of the Session Acts of 1871-72, pp. 221 and 290, are to the same effect, in substance at least, so far as concerns this case. My references will be to the former.
Chapter 188, § 3. The board of supervisors of the seve
, , , . . ,. „ § 4. They may also hold special meetings, &c.
§ 5. They shall have power, at the meeting on the first Monday in December in each year, to audit the accounts of the county; to settle with the different county officers, &c.; to fix the county levies for the ensuing year, &c.
§ 6. They, shall have power, at.said meetiug in December or at any other legal meeting, among other things enumerated, to examine, settle and allow all accounts chargeable against such couuty, and when so settled they may issue county warrants therefor, as provided by law. But they shall not issue, in any one year, a greater amount of county warrants than the amount of the county tax levied in such county for such year, &c. They shall represent the couuty and have the care of the county property and the management of the business and concerns of the county in all cases where no other provision shall be made.
§ 8. They shall, at the first meeting after their election, choose one of their number as chairman, who shall preside at such meeting and all other meetings during the year, if present, &c.
§ 9. He shall countersign all county warrants.
§ 10 declares that accounts are to be allowed by the board, and how they are to be made out, and requires the attorney for the Commonwealth to represent the county before the board and resist the allowance of any claim that is unjust, or ought not to be allowed.
§§ 12, 13, 14 and 15 give a right of appeal from the board to the county court, prescribe the duty of the •clerk of the board in such cases, declare when an action may be maintained against a county, and when the determination of the board is to be final, &c.
§ 18 requires the board to have published yearly a full-report of the receipts and expenditures of the year next pi’eceding, and of the accounts allowed, &c.
§ 22 declares that the clerk of the county court shall be, ex officio ‘ clerk of the board of supervisors, and may appoint a deputy, for whose acts the clerk and his sureties shall be responsible under his official bond.
§ 23 presciibes the general duty of such clerk, among; which is the duty to sign all warrants issued by the board for the payment of money, and to record in a book provided for the purpose the reports of the county treasurer of the receipts and disbursements of the county.
§ 25 declares that such clerk shall not sign or issue-any county warrant except upon a recorded vote or resolution of the board of supervisors authorizing the same; and such warrant shall be signed by the clerk and countersigned by the acting chairman of the board;, and the name of the person to whom it is issued shall be entered in a book to be kept by him in his office for that purpose.
Chap. 179, §§ 4-33, relate to the county treasurer, but only a few of these sections need he noticed here.
§ 8. The treasurer shall reside in the county of which-he is treasurer, and shall keep his office at the county-seat, and shall receive all moneys payable into the treasury thereof, and disburse the same on orders of the.County or Circuit court, or warrants drawn by the board, of supervisors for the county; but it shall be competent for the judge of the County court, by order entered of record, to certify that in his opinion some other point in said county would be more convenient to a majority of the citizens of said county; and upon the entry
§ 9. He shall keep a just account of all moneys received and disbursed by him for the county, and return at intervals of two months, until his settlement with the hoard at the end of the year, sworn statements of his receipts to the clerk of the court, to be preserved by him for the inspection of any person having an interest therein. He shall keep the books, papers and money pertaining to his office at all times ready for the inspection of the county judge or board of supervisors; and shall, when required, exhibit his account and the book containing a list of the warrants and orders drawn upon the county treasurer provided for in the following section.
§ 10. He shall provide and keep a well-bound book, in which he shall make an entry of all warrants or orders legally drawn upon him by the County or Circuit court, or the board of supervisors for the county, and presented for payment, stating correctly the date, amount, number, in whose favor drawn, and the date the same-was presented; and all warrants or orders so presented shall be paid in the order presented, out of the fund drawn upon.
§ 11. Ho county treasurer shall refuse the payment of any warrant or order legally drawn upon him and presented for payment for the reason that warrants or orders of prior presentation have not been paid, when there shall be money in the treasury belonging to the-fund drawn upon sufficient to pay such prior warrants or orders, and also such warrants or orders so presented; hut such treasurer shall, as he shall receive money into-the treasury belonging to the fund so drawn upon, set the same apart for the payment of warrants or orders previously presented, and in the order presented: pro
These sections show how careful the legislature has been to secure the people of a county against the imposition of unjust or improper claims, and to prevent the issuing of illegal, pretended, or fraudulent warrants upon the treasury of a county. And yet the facts certified in the record in this case show, that since the board of supervisors of Henrico county was first organized, in 1870, the board has never, by a recorded vote, authorized the issue of any warrant; but it has always been the custom, sanctioned by the acquiescence of the board, for the chairman and clerk of the board to issue warrants whenever a claim against the county had been audited and allowed by the board. It has been the habit of the chairman to sign his name to blank warrants, and leave them with the clerk of the board, to be filled up and delivered by the clerk to persons entitled thereto; trusting to the clerk to act faithfully in the matter. The record book of the proceedings of the board rvas in possession of the clerk, and he could always see from it what amounts had been allowed. According to this extraordinary and most unwarrantable custom, Samuel L. Anable, the father of the accused, who had been a member of the board ever since it was organized, and was chairman thereof from July 1871 to July 1872, signed, as such chairman, a large number of these blank warrants, how many does hot appear, and placed them in the hands of the accused for the purpose aforesaid. The accused at different times, between the 30th of December 1871 and the 26th of March 1872 inclusive', filled up a large number of these blank rvarrants in his own favor for different amounts, signed them as clerk of the board, and negotiated and effected sales of them through the agency of different
Thus it appears that the accused, having an interest in the county levy of Henrico county only to the extent of $1,649, and well knowing that that was the full amount of his said interest, and the utmost extent to which he was entitled to receive and have county warrants on the treasurer of said county, yet filled up and signed blank warrants as aforesaid to the amount' of upwards of $3,000, and negotiated and sold them, falsely pretending to the purchasers, or some of them, that he had an interest in the county levy to that extent, and a right to draw on the county treasurer to that amount.
How, it is evident, from this statement of the facts, that a large amount of money, or its equivalent, has been thus obtained by the accused by these false pretences, and the question is, whether the check, the larceny of which is the subject of this accusation, is a part of the subject which was thus obtained.
It does not appear from the record at what precise dates the supposed warrants were negotiated and sold as aforesaid, except that the one for which the check afore
But the counsel for the accused insists, that if when the warrant for which the check was given was registered the amount due to the accused on account of the ■county levy was sufficient to cover the amount of all the ■supposed warrants in favor of the accused which had been registered, including the one for which the check was given, then the accused cannot be guilty of obtaining that check by false pretences, and therefore cannot lawfully he convicted of the larceny of the check, even though long before he obtained it he may have sold and
I can only say that if this be law, it strikes me as something very strange; for even if we admit the truth •of the fact assumed by the instruction, as to the sufficiency of the amouut of his claim against the county to cover the amouut of warrants registered down to and including the time of registering the one for which the check was given, (which I am not disposed to controvert, and which may be true,) and even if we admit, which I certainly do not admit, that the holders of these supposed warrants were entitled to receive payment of them from the county treasurer in the order of their being registered, until the amount due the accused by the county was exhausted, although before they were drawn he had sold and assigned to others the whole of said amount, still it does not follow that the check in question was not obtained by fraudulent pretences.
Let us suppose that the whole of these warrants, to the amount of upwards of $3,000, had been sold and assigned before any of them were registered, would not the accused have thereby obtained a part of the proceeds of sale by false.pretences? — by falsely pretending that he had in the county treasury enough to pay the whole amount of said warrants, when he knew he had not more than about one-half of that amount in the said treasury? If any part of said proceeds of sale would have been obtained by such pretences, which part would have been so obtained? Certainly that part obtained after he had fully sold and assigned the whole amount of what was due him by the county. Ilis offence would have been complete so soon as he obtained that part or any portion of it; and he might then have been prose- • cuted aud punished for the offence. Can it be possible
The fallacy of the reasoning in opposition to the view I contend for seems to me to consist in this: that, to-maintain this prosecution, it is necessary to show that Dr. White sustained a loss by the transaction; and as Dr. White, by getting his warrant registered first, will, according to the argument, avoid that loss himself and throw it upon another, therefore this prosecution for obtaining the check from him by false pretences cannot be maintained. With all deference I think this a non seqidtur. A man from whom property is stolen may get it back or recover its value. The thief himself may voluntarily return it. But even that will not purge theoffence when once it has been completed. Dor the same reason, if this offence was complete when the check was received, it does not cease to be an offence, if it can be supposed that Dr. White became entitled to receive the-amount of the warrant assigned to him by having it first registered.
But let me suppose a case for the purpose of illustrating the strange consequence to which the view contended for might lead. Suppose that the county had owed to the accused only $1,000, the whole of which debt he? bona fide, sold to A, filling up a blank warrant and endorsing it to him for the amount; that some time after-
But, it is needless to discuss this question further, because it does not arise. Ur. White has not obtained payment of the warrant assigned to him, and non constat that he ever will. In my opinion he certainly never will, if when the supposed warrant was assigned to him the accused had, by prior sales and assignments, entirely exhausted the amount which was due him by the county.
With all due deference to the opinions of those who differ with me, I think the purpose and effect of the registration of these county warrants has been wholly misconceived. The purpose is not to give them effect or make them complete, nor to make them void, even as to
The law, as we have seen, expressly declares that the clerk shall not sign or issue any county warrant, except upon a recorded vote or resolution of the board of supervisors authorizing the same, and such warrant shall be signed by the clerk and countersigned by the acting chairman of the board, and the name of the person to whom it is issued shall be entered in a book to be kept by him in his office for that purpose. By a very bad custom, the chairman of the board of Henrico has been in the habit of signing blank warrants and trusting them to the clerk, to be filled up, signed by him and issued to the county creditors. Although a bona fide execution of this trust by the clerk (if trust it can be called) would not expose him to the imputation of a criminal offence, however illegal the custom may be, there being no criminal intent in the case, yet certainly he is not authorized to issue a warrant to anybody he pleases, whether a county creditor or not; and if he fraudulently issue a -warrant to a person not a county creditor, with intent to deceive, he is guilty of forgery; and if he obtain money or other valuable thing by means of such a paper, he is guilty of obtaining the same by false pretences, and is by law deemed guilty of the larceny thereof. To fill up, with a fraudulent intent to deceive, such a blank paper, entrusted to him for a different purpose as aforesaid, is as much a forgery as if the whole paper had been forged and fabricated. That the paper in this case was issued to a person who had been a county creditor makes no difference. He had previously sold and assigned to others all that was due him by the county, and was then no longer a county creditor. He stood as if a dollar had never been due him by the county. He knew that such
In no view of the case therefore did the court err in refusing to give the first instruction.
The second and fourth instructions asked for by the accused were given, and there is of course no question as to them.
The third instruction asked for was also given, but with an addition which was excepted to. I think that addi
The fifth.instruction was refused, and rightly so; but as this is not complained of as an error by the accused, I will take no further notice of it.
The sixth instruction was refused and that is complained of as error. It presents the question whether the check beiug described in the indictment as endorsed by Rewburn, to whose order it was payable, and the evidence being that it was not endorsed by Rewburn when it was handed to him by White, but was so endorsed afterwards; that is a fatal variance.
I do not think it is, for two reasons:
First. The law of larceny does not require a minute •description of the property stolen. The general rule is that it should be described with such a certainty as will enable the jury to decide whether the chattel proved to have been stolen is the very same with that upon which the indictment was founded, and show judicially to the court that it could have been the subject matter of the offence charged, and enable the defendant to plead his acquittal or conviction, to a subsequent indictment relating to the same chattel. 2 Russ. on Crimes, 107. It is .generally sufficient in an indictment to describe a matter made a subject of larceny by statute in the words in which it is described by the statute. Id. 110. To be sure, if an indictment profess to set out a writing in Jiaec verba, it ought generally to be truly set out. But here the check was not intended to be set out, nor was it necessary. It is merely described by certain marks, and the question is, whether the description is sufficient for the purpose of identity, notwithstanding there may have been a misdescription in the respect mentioned. Robody can doubt the fact of identity in this case between the check proved and the check charged to have
But, secondly, I think there is a better answer still; which is, that Dr. White was not deprived of the title or possession of his property in law by its being stolen from him; that both title and possession continued thereafter in him, so long as it was held by the thief or his agent; that during all that period there was a continual repetition of the larceny, in contemplation of law; that the legal title and possession of Dr. White were not determined by the endorsement of the check by Eewburn; and that, therefore, the check must be deemed to have been stolen, taken and carried away, as well after as before it was endorsed by Eewburn. And so there was no variance.
The only remaining question to be considered in this case, if any, must arise under the second bill of exceptions; which was to the opinion of the court overruling-the motion for a new trial. I have already considered
First. It was suggested that the object of the accused was to obtain money, and not a cheek; that he gave no authority to Hewburu to obtain a check; indeed, that he gave no authority at all to Hewburn, to obtain either money or a check; but only gave authority to Quarles to obtain money by a sale of the pretended warrant. To this suggestion the answer is, that the authority given to Quarles, to obtain money by a sale of the warrant, was an authority to sell it and to obtain the money in the usual manner in such cases; and the employment of Newburn as a sub-agent by Quarles, and the receipt of the money by Fewburn, by the means of a check, were within the scope of the power conferred by the accused. If it was larceny to obtain the money, it was equally larceny to obtain the check, which was received as an equivalent for the money, according to the universal custom in such cases, and was the usual and proper means of obtaining the money.
Secondly. It is suggested that the check was not White’s and could not have been recovered by him of Newburn, who at least had a lien upon it for his commission, as also had Quarles. To this suggestion there are several sufficient answers: first, neither of them could have had any claim to commission on a check obtained by them or their principal by false pretences; secondly, even supposing they had such a claim, the general property and right of possession of the check was in White, subject only to a lion or charge for commission, and he could therefore be properly stated as the owner in the indictment; and, thirdly, the Code, ch. 207, § 8, provides that
Thirdly. It does not certainly appear from the record, in what precise order the supposed warrants were- sold and assigned by the accused; and, therefore, it may not certainly appear that before the check was obtained he had sold and assigned warrants to the full amount of what was due him by the county. I confess I had some doubt at first upon this question; hut, on further reflection, I am decidedly of opinion, that the jury having found a verdict against the accused, with which the court of trial was satisfied, the appellate court ought not to reverse the judgment because the verdict was contrary to evidence in.that respect. All the supposed warrants and the holders of them were before the jury, and nothing would have been easier', I suppose, than to have shown the order in which the sales were made. That the learned counsel of the accused raised no question of that kind, but on the contrary raised the question which his first instruction presents, shows clearly that no such question as the former could be raised on the facts of the case.
Upon the whole I think there is no error in the judgment, and that it ought to be affirmed; but as the other judges think otherwise, it must be revei’sed, and the cause remanded for a new trial to be had thereon.
Anderson and Staples, Js., concurred in the opinion of Christian, J.
Concurrence Opinion
concurred in the opinion that the offence might be prosecuted under the indictment. He also concurred in the opinion of Christian, J., as to the re
Judgment reversed.