Foster v. State, No. 21489

No. 21489 | Miss. | Oct 15, 1920

Holden, J.,

delivered the opinion of the court.

The appellant, Andrew Foster, was indicted and convicted of grand larceny, upon the following facts shoAvn by the state: Foster and three other negroes, viz., Neely, Williams, and Jones, all of Jackson, Miss., entered into a conspiracy to obtain one hundred dollars from Mr. C. E. Harris, a farmer of Grand Junction, Tenn., avIio was-in need of labor on his farm, which latter fact the conspirators knew of. Tavo of them, Neely and Williams, in pursuance of the conspiracy, got in touch with Mr. Harris and agreed to go to Tennessee to labor for him provided he would pay an account of one hundred dollars which they pretended to oAve to one “John Bentley” in Jackson, and to pay their transportation to Tennessee. Thereupon Mr. Harris sent his agent, John Thomas, to Jackson with the money to pay said account and transportation. When Mr. Harris’ agent, Thomas, reached Jackson, one of the four conspirators named Jones Avas presented to Thomas as “John Bentley,” and Jones then and there falsely stated to Thomas that Neely and Williams OAved him one hundred dollars, Avhereupon Thomas as agent of Mr. Harris paid to the said Jones the one hundred dollars in settlement of said pretended account and took his receipt for same. The representations to Mr. Harris and his agent, Thomas, were false and fraudulent; the one hundred dollars was divided among the four crooks, Avliich was a loss to Mr. Harris.

The appellant presents the point that the proof does not sustain the charge of larceny, and Ave think the position is Avell taken.

When Thomas, the agent of Mr. Harris,- paid the one hundred dollars to Jones, who Avas falsely pretending to be one John Bentley, a fictitious person,'he intended, to part Avith both the possession and the title to the property, and consequently there was no trespass in the taking and conversion of the property. In other words, the ownership of the property, as well as its possession, was intended to pass from Thomas to Jones; and thus Thomas consented to the conversion of the property. And this is true notAvithstanding the title and possession Avere obtained through false pretenses or other fraud.

If it were a case wherein Jones had obtained merely the possession and not the title, through fraud, and afterAvards converted the property to his oavu use without the consent of the owner, the offense would be larceny. But the case here is not larceny because Thomas intended to part with both the ownership and the possession of the property when he delivered it to Jones; the money was not paid to Jones to be held'in trust or to be returned to Thomas, but it was paid over in settlement of a fictitious debt with no intent on the part of Thomas to retain any interest in the money. That Jones was guilty of a cheat and fraud there is no doubt, but his offense was not larceny. Bishop’s New Criminal Law, p. 469; State v. Copeman, 186 Mo. 108" court="Mo." date_filed="1905-01-31" href="https://app.midpage.ai/document/state-v-copeman-8015264?utm_source=webapp" opinion_id="8015264">186 Mo. 108, 84 S. W. 942; Pease v. State, 94 Ga. 615" court="Ga." date_filed="1894-06-30" href="https://app.midpage.ai/document/pease-v-state-5565795?utm_source=webapp" opinion_id="5565795">94 Ga. 615, 21 S. E. 588; 25 Cyc. 23; Welsh v. People, 17 Ill. 339" court="Ill." date_filed="1856-06-15" href="https://app.midpage.ai/document/welsh-v-people-6948655?utm_source=webapp" opinion_id="6948655">17 Ill. 339; Perkins v. State, 65 Ind. 317" court="Ind." date_filed="1879-05-15" href="https://app.midpage.ai/document/perkins-v-state-7042925?utm_source=webapp" opinion_id="7042925">65 Ind. 317; Elliott v. Commonwealth, 12 Bush 176" court="Ky. Ct. App." date_filed="1876-05-11" href="https://app.midpage.ai/document/elliott-v-commonwealth-7379348?utm_source=webapp" opinion_id="7379348">12 Bush (Ky.) 176; Thorne v. Turck, 94 N.Y. 90" court="NY" date_filed="1883-11-20" href="https://app.midpage.ai/document/thorne-v--turck-3629712?utm_source=webapp" opinion_id="3629712">94 N. Y. 90, 46 Am. Rep. 126; Pitts v. State, 5 Tex. App. 122; Wharton Crim. Law, vol. 2, p. 1422.

In the Akroyd Case, 107 Miss. 51, 64 So. 936, cited by counsel for the state, it Avas held that where the possession of personal property is obtained fraudulently, with the felonious intent existing at the time to deprive the owner thereof, and the person so obtaining it, in pursuance of such intent, does deprive the owner of the property, the offense is larceny. But it will be observed that the OAvner in that case merely parted with the possession of the property to the thief, through fraud, and the title or ownership Avas not intended to pass, and did not pass, from the owner to the thief. In that case the accused obtained the property Avith the understanding that the title should remain in tlie owner and that the ring would he returned unless he decided later to purchase it. The difference between that case and the one at bar is that there only possession was obtained by fraud; here both possession and title were obtained by fraud. In the first case there was a trespass through fraudulent intent when obtaining the possession, and the subsequent conversion constituted larceny. But here the possession and title were both obtained by fraud, and, since the swindler became the owner as well as the possessor, he was thus authorized to convert the property to his own use, and this is so even though he obtained the title and possession through a manifest swindle.

The proof offered by the state in the loiver court failed to sustain the indictment, and, the error being substantial and fundamental, we must reverse the judgment of the lower court and discharge the appellant.

Reversed, and appellant discharged.