72 Ark. 516 | Ark. | 1904
(after stating- the facts). The judgment in this case must be reversed for error in the instructions given in this case and the refusal of those asked by the appellant.
It is often difficult to make the distinction between larceny and obtaining money under false pretenses. Bishop, in his work on Criminal Law (Vol. 2, § 758, 8th Edition), says: “Larceny is the taking and removing by trespass of personal property, which the trespasser knows to belong either generally or specially to another, with the felonious intent to deprive him of his ownership therein.” 3 Greenleaf, Ev. § 150, gives this definition of larceny: “The wrongful or fraudulent taking and carrying away of the mere personal goods of another, with a felonious intent to convert them to his (the taker’s) own use, and make them his own property, without the consent of the owner.” “The owner’s consent to the taking prevents larceny.” 2 Bishop, Cr. Law, 811, 8th Edition. “There can be no trespass where there is a consent to the taking.” lb.
At subdivision 3, section 811, Bishop says: “Assuming the consent to be equally broad with the taking, and to comprehend the ownership in the thing together with its possession, we have just seen that by the theory of this branch of the law, contrary to just principle, it will protect the thief, though he obtained from the owner by fraud; in other words, by reason of the consent, even when procured by fraud, there is still no trespass, therefore no larceny.”
Mr. Greenleaf, volume 3, section 160, says: “A felonious intent may also be proved b}' evidence that the goods were obtained from the owner by strategem, artifice or fraud. But here an important distinction is to be observed, between the crime of larceny and that of obtaining goods by false pretenses. For supposing that the fraudulent means used by the prisoner to obtain possession of the goods were the same in two separate cases, but in the one case the owner intended to part with his property absolutely, and to convey it to the prisoner, but in the other he intended to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself; the latter case alone would amount to larceny, the former constituting only the offense of obtaining goods by false pretenses.” So says Russell on Crimes (6th Ed.), 200.
There are a great many decisions to the same purport. See Welsh v. People, 17 Ill. 399; McDonald v. People, 23 N. Y. 61; Smith v. People, 53 N. Y. 11; Commonwealth v. Eichelberger, 13 Atl. 422; 4 Am. St. Rep. 642; Connor v. People (Colo.), 25 L. R. A. 346; People v. Shaughnessy, 42 Pac. 2; People v. Campbell, 59 Pac. 593.
Where persons conspire to cheat a man under color of a bet, and he simply deposits his money as a stake with one of them, not meaning thereby to part with the ownership therein, they, by taking the money, commit larceny, and not the less so' though afterwards they arei by fraud made to appear to win. 2 Bishop, Cr. Law, § 813, subdivision 3.
The third, sixth and seventh instructions given at the request of the state are clearly not the law. They declare the law to be that, if money or property is obtained by means of a fraudulent game contrived for the purpose of defrauding another out of his property by fraudulent representations and acts, the person obtaining property under such circumstances is guilty of larceny. They leave out of view entirely the purpose and intention of the owner in parting with his property. Under these instructions the prosecuting witness may have surrendered his property with the purpose and understanding that he was passing the absolute title as well as the possession, and the defendant would have been guilty of larceny if the property was obtained by means of a fraudulent game.
It is evident that the court should have given some of the instructions asked by the appellant and refused by the court. The testimony in this case shows that Haffner consented to the taking by the appellant of the diamonds and 'money lost by him on the foot race, and his consent, though fraudulently obtained, prevented larceny, though it may have been fraudulent and false pretenses.
Reversed, and remanded for a new trial.