175 Ind. 515 | Ind. | 1911
Appellant was indicted, tried, convicted and sentenced for grand larceny in the alleged stealing, taking and carrying away of a piano of the value of $300.
The theory of the State was that the piano was procured by trickery and fraudulent representations. The theory of appellant is that there is no evidence in the record, direct or inferential, of any trick or fraud, and hence that the verdict and judgment are wholly without evidence to support either, and this is the sole question presented. The error assigned is in overruling the motion for a new trial.
The facts disclosed by the evidence most favorable to the State are as follows: Currens and another were piano dealers in the city of Indianapolis. Currens, who transacted the business with appellant, had known the latter about one year prior to December, 1907, when appellant went to his place of business and asked to exchange a note he had for a piano for his daughter, to be given her as a Christmas present, representing that the note was for $300, bearing eight per cent interest. He asked the prosecuting witness what he had in the way of a piano that he would exchange for the note, showed the witness the note, stated that it was given for money loaned, and was secured by mortgage on forty acres of land in Scott county, Indiana. Witness
Appellants’ contention is that this state of the evidence shows no more than “puffing,” or an opinion as to values, and that Currens had the same opportunity for knowing the title and character of the holding, as he had, and that his acts did not constitute a fraud. The conditions however were not equal. Appellant had knowingly, and we must assume purposely, procured an affidavit to be signed by Miller that he had a fee-simple title, that it was free from encumbrance, and that he had loaned $300 to Miller, and he so directly represented, and this he used to deceive Currens. It was not only false, but deception was manifestly practiced in presenting it, with a view to obtaining the piano by means of the deception; for it is quite certain that had the owner known the facts, he would not have parted with the possession, and equally certain that it was in pursuance of a prearranged plan to obtain the property. The note and mortgage were worthless, and appellant knew it.
Littell had made a qualified warranty deed to Miller as shown by the abstract, restricted to his interest, and while appellant testified that Littell was financially responsible, and there was no other evidence upon the subject, the jury may have inferred, from the fact that he made a second qualified deed for the property before the time for recording the first had expired, that it was the act of an irresponsible person, and that there was a conspiracy between appellant and Littell, from the fact that Littell made the second deed, and from the fact of the close relations shown between them, and their dealings involving this same real estate, and from the fact of the affidavit of Miller as to the loan, and appellant’s representations in regard to it, which were confessedly false; and it was a fair inference from the evidence that it was a scheme to defraud. It is not without force that Littell was not a witness, and this and the action of appellant with respect to ascertaining the whereabouts of Miller were fair subjects of inference by the jury as to the question of the good faith of appellant as relating to his representations of having loaned $300 to Miller, who, it is fair to presume, if discovered, would have at once disclosed the want of consideration for the note, and the deception practiced. The cause was submitted to the jury upon fair instructions as to the necessary elements to constitube larceny, and we cannot say that there was not evidence to justify their verdict. Fleming v. State (1910), 174 Ind.
The judgment is affirmed.