English v. State

80 Fla. 70 | Fla. | 1920

Whitfield, J.

This writ of error was taken to a judgment of conviction, on a charge of grand larceny. It appears that English, in this State, using the name of A. L. Jones, sent a telegram to A. in another State, asking for a remittance by wire to A. L. Jones. The remittance was made by wire to A. L. Jones and the money was delivered in this State to an accomplice of English, one Kelly, who signed for it in the name of Jones and delivered the money to English. Jones knew nothing of the transaction. In making the remittance A. trans-¡ ferred the title to the money to Jones through the tele-j graph company as bailee. Possession of the money was delivered by the bailee to English through Kelly by reason of the fraud of English, in which Kelly participated. No title to the money passed to English and the possession obtained pursuant to a preconceived felonious intent to appropriate to his own use was larceny, because the fraud vitiates the transaction, and the money in pursuanee of the fraud was unlawfully taken from the lawful possession of the bailee of the owner with intent to feloniously appropriate it. The bailee gave no title to English. The ownership of the money was not improperly alleged to be in Jones to whom it was actually sent by A., and the possession fraudulently obtained from the bailee by Kelly was under the circumstances a fraudulent obtaining of possession from the bailee by English, who received the money from Kelly pursuant to the concerted fraud. See 17 R. C. L. 13, and cases cited; 2 Wharton’s Crim. Law, p. 1351, Sec. 1126, 1167, and cases cited; People v. Miller, 169 N. Y. 339, 62 N. E. Rep. 118, 88 Am. St. Rep. 546, text 569; Commonwealth v. Collins, 12 Allen (Mass.) 181; 2 Bishop’s New Crim. Law, §§ 812, 822.

Judgment affirmed.

Brown®. C. J., and Taylor, Ellis and West, J. J., concur.