105 Ga. 617 | Ga. | 1898
The defendant, by accusation in the criminal court of Atlanta, was charged with the offense of simple, larceny, in that she “ did wrongfully and fraudulently take, steal and carry away with intent then and there to steal the same, eight dollars and ten cents in money, the property of J. C. Northcutt, and of the value of eight dollars and ten cents.” The testimony for the State, in brief, is, that Northcutt went into the store of Mrs. Binkelstein and bought of her goods to the amount of j $1.90. lie handed her a ten-dollar bill from which to take pay- | ment. He claimed that she carried this bill to another part of ■the store, and placed the same in the money-drawer, and returning, handed him $3.10 in change. He reminded her that the bill he handed her was $10, which was denied, she contending that it was only a five-dollar bill; whereupon she took from her stocking a five-dollar bill, and exhibited it to him as the money she had received from him. In the meantime her husband came, who, learning of the accusation against his wife, seized the prosecutor, and desired to call in a policeman and to have the store searched to see if the ten-dollar bill was therein. An altercation and fight ensued between the husband and North-I cutt. No search was made. Defendant, in her statement, dej nied having ever received a tenrdollar bill, claiming that it was ■ a five-dollar bill paid her, and that she placed the same in her stocking when it was handed her. There was some conflict in the evidence as to whether or not Northcutt was under the influence of whisky at the time. There was proof of defendant’s good character by several witnesses. The defendant was found guilty, whereupon she filed a motion for a new trial, which was overruled, and she excepted.
Neither, under the facts of this case, could the charge of larceny after trust be maintained under any definition of that offense in the Penal Code. If the offense committed falls within any of the provisions of our law on this subject, it must be included in sections 191 or 194 of the Penal Code. -The former section relates to factors, commission merchants, etc., “ or any other bailee, with whom any money, or any other thing of value, may be intrusted or deposited.” In no legal sense was this defendant the bailee of the owner of this money. There was really nothing entrusted to or deposited with her. It was a cash transaction. While, with the consent of the owner, she received his money, yet it was contemplated that the two acts, one of receiving, and the other of paying back something in lieu, should be simultaneous. There was no delegated trust either to keep the money for any period of time, or to dispose of or use it for the benefit of either of the parties. In the case of Sanders v. State, 86 Ga. 717, it was held that the words “ or any other bailee,” in the section cited, should be construed to mean other bailees of like character as those named just above; that is, bailees ejusdem generis. In Cody v. State, 100 Ga. 105, that decision is criticised; and Chief Justice Simmons, in the opinion delivered by him in the case of Weaver v. Carter, 101 Ga. 213, said that while Cody v. State virtually overruled the decision in 86 Ga., yet it was without in any way or manner reviewing the same as prescribed by the statute. However, in
The proposition that simple larceny of goods may be committed by a person even if he acquires the lawful possession thereof, where there is no intention of the owner to part with the title, is sustained by abundant authority, both in the textbooks and in the decisions of numerous courts of last resort in this country. We quote the following from 12 Am. & Eng. Enc. of Law, p. 768 : “The mere delivery of property to another for-1 a special purpose vests in the person receiving it only the tempo- I rary charge or custody; the possession of the property remains in the owner, and a conversion of it is larceny, as in case of the ,, delivery of money by the owner to another for the purpose of having it changed into other money of a different denomina-, tion.” In Bishop’s New Criminal Law (vol. 1, §583), it is-declared: “If one fraudulently, to steal another’s goods, prevails on the latter to deliver them to him in a way to pass the property therein, he commits by this taking neither larceny nor any other crime, unless the transaction amounts to an indictable cheat. But if the permission extends to the possession only, and he takes and converts the whole to himself, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained covers no more than the possession.” Again, in volume 2 of the same work (§815, 2d div.), it is declared: “If, on a sale of goods, the seller contemplates no credit, but the purchaser secretly purposes appropriating them to himself without paying,
The case of Jones v. State, 97 Ga. 430, is relied on by cormsel for plaintiff in error to sustain the position that this was a case of being a cheat and swindler, and not of larceny. The marked distinction, however, between that case and the one at bar is, that there was an intention on the part of the little girl to pass to the -seller title to the coin which she delivered to him in payment for the goods. On page 431, Justice Lumpkin, in the opinion, says : '“The artful practice and the deceitful means which he employed
Judgment affirmed.