197 Iowa 878 | Iowa | 1923
Lead Opinion
The plaintiff carried a policy of insurance issued by the defendant, whereby the plaintiff was insured against losses from various causes. The only provision of the policy necessary to be set forth for the purpose of this case is the following :
“(B) Through robbery, burglary, theft, holdup, destruction, or misplacement, while the property is within any of the*879 insured’s offices covered hereunder, whether effected with or without violence, or with or without negligence on the part of any of the employees.”
Also:
“(E) This bond does not cover any loss caused from an overpayment by a teller to a customer.”
For the purpose of our consideration of the questions presented, we adopt the statement of facts contained in the brief of appellee, as follows:
“The appellee, Cedar Rapids National Bank, is a national banking corporation, with its principal place of business in the city of Cedar Rapids, Linn County, Iowa, engaged in the banking business in that city. The appellant, American Surety Com-. pqny of New York, is a corporation organized under the laws of the state of New York. On the 10th day of December, 1912, the appellant issued to the appellee a certain bond, known as a banker’s blanket bond, whereby it undertook to indemnify the said appellee against certain losses occurring in its banking house in said city of Cedar Rapids, Iowa, to wit: ‘robbery, burglary, theft, holdup, destruction, or misplacement.’ On the 20th day of January, 1921, a person calling himself Chas. E. Boyer called at the plaintiff’s bank, stating that he desired to open an account. He conferred with the vice president, Martin Newcomer, and stated that he was a traveling salesman, who had just moved to' the city, and that he had taken an apartment in the Brown Apartments. He deposited, on this occasion, the sum of $6,875 in currency. There were three paying tellers and four teller’s cages along the northerly end of the bank, the bank room being about'120 feet long. On the following day, January 21st, Boyer persSnally cashed two checks, one for $300, in the morning, and later on said date, one for $375. The cage occupied by Julius Richter was the westerly cage. On Saturday, the 22d day of January', 1921, about 11:30 A. M., a rush hour, while the .bank was crowded with customers, said Boyer came to the cage of the teller Julius Richter, and presented a check payable ‘to cash,’ in the amount of $6,200. Richter, not knowing the state of Boyer’s account, went to the bookkeeper and ascertained that he had sufficient funds in the bank to cover said check, and therefore paid to Boyer the sum of $6,200 in currency. While*880 he was paying out the money to him a telephone message came to the bank, stating that Richter was wanted at once at St. Luke's hospital, on account of a serious accident which had happened to his family. The telephone operator receiving the message, failing to get Richter by telephone, sent one of the bookkeepers to' notify him. Richter, having paid Boyer the money, receiving this urgent, terrifying message, immediately locked his cage, leaving the paid~check therein, and left hastily for the hospital, without notifying anyone that he had cashed the check. The bank closed at 12:30 on Saturdays. Immediately after Richter left, Boyer presented a second check for $6,200 to the teller Leinbaugh, in the easterly cage, who took it .to the vice president, Newcomer, to verify the signature. Newcomer knew nothing of the previous check cashed by Richter, so inquired of the bookkeeper, Mrs. Grace M. Collingwaod, the same one previously consulted by Richter, as to whether or not the deposit was in currency or checks. She informed him that the deposit was in currency, and he told the teller Leinbaugh the check was all right. Thereupon, the teller Leinbaugh paid the second check for $6,200 to Boyer, who immediately decamped with the money thus secured. The bookkeeper, Mrs. Colling-wood, testified that she saw Richter hastily leave the bank, and heard one of the girls say, in the bank, that some of his family had been hurt, and that he had been called to the hospital. When Newcomer made inquiry in reference to the check, which was within a minute or two after Richter had spoken to her about it, she assumed that it was in reference to the first check for the same amount, and that the departed teller had turned it over to the other teller, Leinbaugh, to take care of for him, on account of the supposed accident. The bank did not discover, until Richter returned to the bank, that both checks had been paid. They immediately informed the police, and every effort was made to apprehend Boyer, but he made good his escape. They learned, upon inquiry, that he had never had an apartment in the Brown Apartment, and no trace of him was found. The telephone operator who received the message at the bank testified she was familiar with the voice of the customers of the bank, and that the voice of the -person calling in with the message for Richter was strange to her; that the person appeared greatly*881 excited, and fairly shrieked into the phone, and conveyed the impression of great urgency, and then immediately rung off. The whole transaction was a trick, to secure possession of the $6,200, for the purpose of stealing the same. The plaintiff, as a part of his main case, offered to show that Boyer, under the name of E. L. Norris, attempted this same trick upon the Fourth National Bank at Atlanta, Georgia; that he was apprehended in the act of doing the same; but that he made his escape from the officers by jumping out of a lawyer’s window, whom he had been permitted to consult, and has never been heard of since. The testimony concerning the Atlanta attempt was excluded by the court, upon objection by the defendant. The whole transaction took place in about two minutes, when the bank was crowded with customers, at a rush hour; and all the facts unmistakably show that it was a scheme boldly planned and skillfully executed to secure possession of the bank’s money with the intention of stealing it and carrying it away. It was the well known crime of larceny by trick, which has been the subject of many decisions. ’ ’
"We deem the evidence quite conclusive, and appellant does not contend otherwise, that Boyer acted with fraudulent intent, and with criminal purpose to possess himself of the money of the plaintiff to which he was not entitled. In order to recover, it was incumbent upon the plaintiff to show that Boyer, the wrongdoer, was guilty of theft by reason of the means adopted by him to obtain the money. The contention for the defendant is that he was guilty of obtaining money by false pretenses, and that he was not guilty of theft.' This is the disputed question presented.
Theft is the equivalent of larceny. It is denominated by the latter term in our criminal statutes. Our statutes also define the crime of obtaining property by false pretenses. These are separate and distinct offenses. When the larceny is accomplished by a trick, they approach each other in close similarity. Even then a well defined distinction is maintained. The latter offense is defined by Section 5041 of the Code, which is a part of the chapter on “Cheating by False Pretenses.”
Under our previous holdings, if the wrongdoer by false pretense or trick induce the injured party to surrender to him the
“But in view of the allegations of the indictment and the charge as given by the court, it was important that the crimes of larceny and of cheating by false pretenses be clearly distinguished. That there is a distinction between the two is apparent, although they are in some respects similar in character. The distinction is this: If the false pretenses induce the owner to part with his property, intending to transfer both title and possession, the crime is cheating by false pretenses. If, on the other hand, one by fraud, trick, or false pretense induces the owner to part merely with the possession of his property, there being no intent to pass the title, and the party who receives it took it with intent fraudulently to convert it to his own use, the crime is larceny. State v. Edwards, 51 W. Va. 220 (41 S. E. 429, 59 L. R. A. 465); State v. Hall, 76 Iowa 85; People v. Morse, 99 N. Y. 662 (2 N. E. 45). The distinction depends largely, if not wholly, upon the intent of the prosecutor. State v. Anderson, 47 Iowa 142; State v. Hall, supra; People v. Rae, 66 Cal. 423 (6 Pac. 1, 56 Am. Rep. 102); 1 Wharton, Criminal*883 Law, Section 1179; Loomis v. People, 67 N. Y. 329 (23 Am. Rep. 123).”
At page 429, we said:
‘ ‘ If the prosecutors did not intend to part with the title, but delivered the possession for a temporary purpose, and defendants took and fraudulently converted it, they were guilty of larceny, and not of the crime of cheating by false pretenses. State v. Anderson, supra.”
In State v. Dobbins, 152 Iowa 632, 638, we said:
‘! That a felonious tailing is necessary to constitute larceny, and that, generally speaking, a taking which is accomplished with the consent or acquiescence of the owner of the property is not felonious, will be readily conceded; but where such consent is obtained by fraud or trick, with promise to return the property after it has served some temporary use or purpose, but with the secret intention on the part of the receiver to convert, it, then, as has already been said, the fraud supplies the place of trespass in the taking, and the offense committed is larceny. Says the California court: ‘Consent to deliver the temporary possession is not consent to deliver the property in a thing; and if a person, animo furandi, avail himself of a temporary possession for a specific purpose, obtained by consent, to convert the property in the thing to himself and defraud the owner thereof, he certainly has not the consent of the owner. He is acting against the will of the owner, and is a trespasser.’ People v. Rae, 66 Cal. 423 (6 Pac. 1, 56 Am. Rep. 102). The rule as thus stated has been frequently recognized in cases substantially like the one we are now considering, and is too manifestly just and wholesome to require further discussion at our hands.”
To the same effect, see State v. Anderson, 47 Iowa 142; State v. Hall, 76 Iowa 85.
Recognizing this distinction between the two offenses, was the offense of Boyer that of larceny, or that of obtaining property by false pretense ? Boyer received the money at the hands of Leinbaugh, the bank teller. He had fraudulently induced Leinbaugh to believe that he had that amount of money still to his credit in the bank. Leinbaugh honored his check, with the intent to pay him what was due him from the bank, as Leinbaugh was induced to believe. Boyer in fact had no right to the money
It may be added that this conclusion is quite consistent with the general character of the insurance provided by the policy. Losses resulting through the mistakes of employees or officers, even though induced by fraud, are not, in terms, within the scope of the insurance. The quality of mistake on the part of the employees strongly characterizes the circumstances of this loss. If the bookkeeper had not been mistaken in her own inference that Boyer was presenting to Leinbaugh the same check which he had presented to Richter a moment before, the loss could not have Occurred.
It is conceded that the policy does not cover losses resulting from the mere fraud of third parties, or from the offense of obtaining property by false pretenses, and that, unless Boyer’s offense can be classified as larceny, there is no liability there
Dissenting Opinion
(dissenting). With all due respect for tbe opinion of tlie majority, I cannot bring’ myself to tbe point-of concurring in the majority opinion. I therefore respectfully dissent.
Under the undisputed evidence in the case, I think that Boyer was guilty of larceny, rather than of obtaining money under false pretenses. I shall state my reasons as briefly as I can.
Under the authorities, it is sometimes difficult to determine whether, under a given state of facts, a party is guilty of larceny or of false pretense. I am inclined to think that, in some cases, a situation might be such as to involve either one. 17 Ruling Case Law 8. In some jurisdictions, all distinction between the two crimes of obtaining property by false pretenses and larceny has been abolished. Zink v. People, 77 N. Y. 114. In some of the old English cases, the difference between the two is more artificial than real, and rests purely on technical grounds. Much of the nicety is due to the fact that, at the time many of the English cases were decided, larceny was a capital felony in England, and the judges naturally leaned to a more merciful interpretation of the law. 17 Ruling Case Law 8. A conviction or acquittal of one was a bar to a prosecution for the other. 12 Cyc. 286, Note. It has been held otherwise in this country. Dominick v. State, 40 Ala. 680. But see State v. Reiff, 14 Wash. 664. This being so, I am not so sure but that the rule ought to apply that there is an ambiguity in the policy, which should, under familiar rules, be construed against the party who prepared- his own contract. But I shall not discuss that feature of the case.
In this state, we have larceny by embezzlement, by bailee, and other embezzlements. Code Sections 4841 and 4842. See, also, Code Sections 4844 and 4852. By these sections, different kinds of embezzlement are made larceny. See, also, Code Sec
“If possession is obtained by a trick, artifice, or false pretense, with the felonious intent on the part of accused to convert them to his own use, he is guilty of larceny. These are familiar rules of law.”
In Towns v. State, 167 Ind. 315 (78 N. E. 1012), it was held that, where one procured contributions by falsely representing that he was a representative of a national organization whose object was to construct homes for convicts, and that his mission was to raise funds for such a home, and he converted the amount’ contributed to his own use, he was guilty of larceny, and not merely of obtaining money under false pretenses. The distinction between larceny by trick and obtaining property by false pretense is a narrow one. In both, the property is voluntarily Relinquished by the owner, and possession is secured through a trick or false pretense; and in both, the accused secures the property with intent to convert it to his own use. The distinction between the two crimes lies in the intention with which the owner parts with the property. If his intention is to invest'the accused with the mere possession only of the property, and the latter, with the reqhisite intent, receives and converts it to his own use, it is larceny. 25 Cyc. 10, 11; People v. Rae, 66 Cal. 423, and other cases cited in the note; State v. Loser, 132 Iowa 419, 427. But if the owner, in parting with the property, intends to invest the accused with the title also, the latter has committed the crime of obtaining the property by false pretense. 25 Cyc.
In the instant case, we have more than the mere passing of a worthless check. It is very clear that this entire transaction from the very first was a cleverly laid plan by Boyer and a confederate to obtain the money, — a trick, pure and simple. There was not only the presentation of the check, but there was the trick of having someone telephone the teller to come to the hospital at an opportune time, — also a previously designed plan. The cases hold that the correct distinction between larceny and obtaining money by false pretenses is that if, by means of any trick or artifice, the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner parts with not only the possession, but with the right of property or title also, and such is his intention, the offense will be obtaining goods-by false pretenses. This is the rule of State
I think that this ease comes within the rule announced in State v. Dobbins, cited in the majority opinion. Mr. Justice Weaver,' who wrote the Dobbins case, so considers it. That was a criminal case, and a conviction was sustained. It was there
I have tried to show, and it is very clear to me, that in this case Boyer had the felonious intent at the very time of securing, and before he secured, possession of the money. The different acts of Boyer prior to the final consummation were a part of the scheme or trick. I have cited a number of cases which are not directly in point, but which, I think, have a bearing tending to show how closely related larceny is to other crimes, and as showing that, even though acts might properly be held to be robbery, larceny from the person, embezzlement, and false pretenses, convictions for larceny were sustained. The rule of the Dobbins case has been applied to cases where a person takes a piece of money from another to change it, and keeps it, with the unlawful intent to convert it to his own use, and refuses to deliver the money given him, or the change therefor, on demand; and the fact that the taking was open and from the owner is of no consequence, if the intent to steal existed.’ State v. Anderson, 25
In Rapalje on Larceny and Kindred Offenses 14, the rule is stated thus:
‘ ‘ If, by trick or artifice, the owner of property is induced to part with the custody or naked possession of it to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking will be larceny.”
Smith v. People, 53 N. Y. 111 (13 Am. Rep. 474); Huber v. State, 57 Ind. 341; Loomis v. People, 67 N. Y. 322 (23 Am. Rep. 123); State v. Bryant, 74 N. C. 124; Regina v. Hollis, L. R. 12 Q. B. 25 (49 L. T. [N. S.] 572); Walters v. State, 17 Tex. Ct. App. 226 (50 Am. Rep. 128).
‘ ‘ It is larceny where the defendants so fraudulently conduct a gambling game or lottery as to give the prosecutor no chance of winning, and he parts with his money through fraud or fear.” Rapalje, supra, and cases.
“A conviction of larceny is warranted on proof that the defendant went into a shop and asked to buy the chattel, but was referred by the clerk to the owner, who refused to sell it to him except upon his father’s order, which was not obtained, and thereafter defendant asked the clerk to be shown the chattel, which he took and carried away, saying to the clerk that he had made it all right with the owner. [Commonwealth v. Wilde, 5 Gray (Mass.) 83 (66 Am. Dec. 350)]. If the property is obtained by defendant through the connivance of a servant of the owner, the defendant may be guilty of larceny though the servant’s offense is embezzlement. [State v. McCartey, 17 Minn. 76].” Rapalje on Larceny 14.
The obtaining possession of a soldier’s discharge paper by falsely personating the owner is held larceny. Commonwealth v. Low, Thach. Cr. Cas. (Mass.) 477.
“The question in the case is whether the obtaining of the automobile in the way described constituted a larceny, under the contract of insurance. It provided insurance against theft, robbery, or pilferage, excepting that committed by persons in the household service or employment of the assured. The plaintiff insists the term ‘theft,’ as used, is equivalent to larceny, and that, as Dolson fraudulently gained possession of the automobile by a preconceived plan, with the intention of depriving the owner of its property, a theft was committed. As will be observed, the facts pleaded are quite similar to those involved in Motor Co. v. Insurance Co., 111 Kans. 225 (207 Pac. 205). That decision, which was made since the judgment in this was rendered, is controlling here. It was decided that: ‘ The prevailing rule is that any scheme, whether involving false pretenses or other fraudulent trick or device, whereby an owner of property is swindled out of it with the preconceived intent of the swindler not to pay for it, is classed as larceny, and is punished accordingly.’ ”
In the Hill Motor Co. case, the provision of the policy was like the policy in the Overland case. The insured was deprived of property by the swindler by means of a preconceived plan, which involved impersonation, misrepresentation, and fraud. It was held that this was a species of theft, for which the insurance company was liable..
It seems to me that my conclusion, and appellee’s contention, is sustained by the foregoing authorities. See, also, 17 Ruling Case Law 13, and many cases cited in the note, some of which are as follows: Frazier v. State, supra; People v. Rae, supra; State v. Kallaher, 70 Conn. 398; State v. Levine, 79 Conn. 714 (10 L. R. A. [N. S.] 286); Harris v. State, 81 Ga. 758 (12 Am. St. 355, and note); Slaughter v. State, 113 Ga. 284 (84 Am. St. 242, and note); Doss v. People, 158 Ill. 660 (41 N. E. 1093); Luddy v. People, 219 Ill. 413 (76 N. E. 581, 3 L. R. A. [N. S.] 508); Beasley v. State, 138 Ind. 552 (38 N. E. 35); Williams v. State, 165 Ind. 472 (75 N. E. 875); Towns v. State, 167 Ind. 315
I would affirm.