17 S.E.2d 301 | Ga. Ct. App. | 1941
Lead Opinion
1. "It is a well-settled general rule that the requirement of a felonious taking against the will of the owner is sufficiently met, and that larceny is committed, where a person intending to steal another's property obtains possession of it, although by or with the consent of the owner, by means of fraud or through a fraudulent trick or device, and feloniously converts it pursuant to such intent." (Italics ours.) 32 Am.Jur. 915. § 29. See Martin v. State,
2. However, the rule stated in the preceding headnote is not applicable where the owner, as here, "intends to, and does, part voluntarily with his title to the property, as well as his possession thereof, to the alleged thief, not expecting the property to be returned to him or to be disposed of in accordance with his directions. The well-established rule that the taking in such case involves no trespass and that the taker is not guilty of larceny applies even where the owner is induced to part with the title through the fraud and misrepresentation of the alleged thief. Although the acts of the perpetrator of the fraud may be criminal in such a case, they constitute some other crime than common-law larceny, such as swindling or obtaining property by false pretenses, or larceny under a statute which has expanded the common-law crime to include such an offense." (Italics ours.) 32 Am. Jur. 918, § 30. *148
3. Where the prosecutor cashed for the accused a check which was signed by the accused's employer and, according to the prosecutor, was presented to the bank and the bank would not cash it because such check required two signatures, and because the funds in the employer's account were insufficient to pay the check, the conviction of larceny of the money given for the check was unauthorized, because the evidence did not authorize a finding that the person parting with the money did not intend to relinquish both the ownership and the possession thereof. 2 Bishop's Criminal Law, 473, § 812, (3).
4. The evidence did not authorize the verdict.
The evidence disclosed that the defendant went to Joffre and asked him to cash a check for $75. The check appeared to have been given to the defendant by the Corbine Company, for labor performed. Joffre told Kent that he did not have enough money to cash the $75 check, but would advance him $50 on it and give him the balance of the money after the bank opened on Monday morning. The check was presented to the bank and, according to Joffre, the bank did not cash it because such checks required two signatures and, further, because there were not sufficient funds to pay the check.
Our Code, § 26-2602, defines larceny as "the wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same." To constitute larceny there must be a taking against the will of the owner, which is the essence of the crime of larceny. 11 Cox C. C. 193, 196; 32 Am. Jur: 908, 919, §§ 23, 30; Watson v. State,
Judgment reversed. Gardner, J., concurs.
Dissenting Opinion
I concur in the ruling set forth in the first headnote. I think that ruling is applicable and controlling in this case, and that the verdict was authorized by the evidence.