Lead Opinion
The defendant was convicted of the crime of grand larceny, under an information filed by the district attorney charging him with that offense. What he did was this: In company with a confederate, who passed by the name of Turner, he boarded an emigrant train of the Central Pacific Bail-road Company, and engaged the prosecuting witness, who was a pаssenger on the train, in conversation. He represented himself to be a dealer in furs, and said he was traveling on the emigrant train because of the convenience it afforded him of stopping along the route for the transaction of his business. He asked the prosecuting witness if he knew a Mr. Turner of the firm of Turner & Co., of Boston, and told him he had telegraphed Turner to meet him at the point the train then was, but had not seen him. Just as the prosecuting witness answered that he did not know such a man, the pretended Turner opportunely appeared in the car, when the defendant looked up and said, “ Oh, here is the gentleman, coming now.” Defendant introduced his confederate to the prosеcuting witness. The confederate then said to the defendant, “ I got your telegram and I have got your goods all fixed up. ” Defendant replied, “ I am very glad—how are you sending them—by express?” The confederate replied, “ Yes, by express. Bo, by transfer ; they will not touch any, unless prepaid.” Defendant then produced two currency notes, saying that was all the change he had, and that he did not know how he was going to arrange the matter, unless Turner could change “ this bill ”—at the same time producing what bore a slight resemblance to a United States bond for one thousand dollars, with coupons attached. Turner said he could not change it, when defendant asked the prosecuting witness how much money he had, who replied that he had about one hundred dollars or so. Defendant then said he was in a bad fix and did not know what he was going to do, and then asked the prosecuting witness to let him, defendant, have what money he had, until he (defendant) could go to the baggage-car and get what money he wanted, and that they could settle up as they went along—at the same time offering the prosecuting witness the pretended bond as temporary security. In response to that request, the prosecuting witness handed defendant one hundred and sixty dollars of his money; and de
It is claimed for the appellant that the offense thus committed was not larceny, but the obtaining of money by means of false pretenses. The distinction between the two crimes is sometimes very narrow, but yet it is well defined. Where, by means of fraud, conspiracy, or artifice, possession of the property is obtained with felonious intent, and the title still remains in the owner, larceny is established. While the crime is false pretenses, if the title, as well as the possession, is absolutely parted with. No one, we presume, would seriously deny the sufficiency of the evidence to justify the finding of a felonious intent on the part of the defendant in taking the money in question. And under the circumstances of the case, there can be as little doubt of the proposition that there was no intention on the part of the prosecuting witness to part with his ownership of the money. The criminal and fraudulent conduct of the defendant and his confederate in no way operated a transfer оf the title to them, or either of them, or at all changed the ownership of the money. It remained the money of the prosecuting witness. In Commonwealth v. Barry,
Judgment and order affirmed.
Myrick J., Thornton, J., and Morrison, C. J., concurred.
Dissenting Opinion
I dissent. In Smith v. The People,
And Bishop says: “ Where the consent is as broad as the taking, going to the relinquishment of the ownership in the property, it is effectual, though оbtained by fraud; in other words, by reason of the consent, even when procured by fraud, there is still no trespass, therefore no larceny.” (2 Crim. Law, 811.)
Question. “You loaned him this $160, for the purpose-'of Morgan (defendant) paying Turner ?”
Answer. “ Yes, that was the idea.”
In the absence of fraud, I think his intention to part with the property in the money would be too clear to admit of doubt. He in effect says, that he lent the money to the defendant, understanding at the time that defendant was to pay it to a third person to whom he, defendant, was indebted. To say that the owner of the money intended to part with his property in the money if the representations made to him were true, but to retain his property in it if they were not, is in effect saying that if his consent to part with it was obtained by fraud he never consented, which is inconsistent with the doctrine that if the consent be obtained by gross fraud there is no larceny. And Bishop says this doctrine is too firmly established by the authorities to be overthrown by judicial power. (2 Grim. Law, 808.) But the court below in effect instructed the jury that if the consent of the owner to part with his property was obtained by fraud, the fact of such consent being given was quite immaterial. That consent, so obtained, was not consent.
After giving the jury thе code definition of larceny, the court proceeded: “ When a person obtains property, whether it is money or other property, by artifice, stratagem, deceit and fraud, it would be stealing within the meaning of this statute. If it is done with intent at the time to obtain it, and to appropriate it to his own use, and to defraud the party of it, it is stealing when artifice and fraud are resorted to for the sole purpose of getting possession of the property. * * * Such artifice, stratagem, deceit and fraud, that so obstruct the reason of men that they cannot be said to consent, amounts to stealing, because the title of property does not pass from one man to another except by his consent; and as is said by Justice Baldwin of our former Supreme Court, in the case of Butler v. Collins,
But in Butler v. Collins, the court also said that the obtaining of goods by such means would be obtaining them by false pretenses, which is a different and distinct offense from larceny. And it is only by wholly ignoring the distinction that this charge can be sustained.
The charge confounds the case of obtaining the mere naked possession of property, with that of obtaining the property itself.
The сourt was requested by the defendant to give the following instruction:
“ If you find from the evidence, that the money which is the subject cf the alleged larceny in this action was obtained by defendant from the prosecuting witness Hollet; and that the said Hollet voluntarily gave the money to the defendant; and that he (Hollet) did not expect to get any part of this money back from the defendant; and that at the time the money was so obtained, it was understood by the said Hollet that said money was to be used by the defendant on his own account, and not on account of or for the benefit of said Hollet; then the defendant is not guilty of larceny, and you must acquit him of the crime charged in this information, even though you shоuld find that the defendant fraudulently obtained the money by means of false pretenses.”
The court gave only so much of it as precedes the words, “ even though you should find that the defendant fraudulently obtained the money by false pretenses.” The instruction as given", when read in connection with the charge tif the court, could not be construed to meаn anything other than that, if the transaction was not infected by fraud, the defendant was not guilty of larceny.
In the charge given by the court, as well as in its refusal to give the instruction which it was requested by the defendant to give, the court evidently supposed that if the consent of the prosecuting witness to part with his property was obtained by
That theory is not countenanced by the authorities.
In support of it two cases are cited, both of which, in my opinion, recognize-it as an established rule, that if the possession of property be obtained еven by gross fraud, the subsequent conversion of it, by the person so obtaining the possession of it, will not constitute larceny, if at the time of the transfer of the possession the owner intended to transfer the title as well. In one of those cases the court says: “ If the possession of such property is obtained by fraud, and the owner of it intends to part with his titlе as well as his possession, the offense is that of obtaining money by false pretenses.” (Commonwealth v. Barry, 3-
Whether the decision is consistent with the rule to which the court gave its approval is, in my opinion, not very material. But Bishop say's: “ According to the more common doctrine, and in ordinary circumstances, if one takes another’s money by the latter’s permission or request, to return its value in change (that is, to change it or to get it changed), but retains the money, and refuses to deliver the change, he does not commit larceny; because, when the owner of the money relinquished his possession, he did not contemplate receiving it back, but parted with his ownership therein.” (2 Crim. Law, 812.) In support of this he cites several English cases.
A case which is claimed to be more directly in point, is Loomis v. The People,
Is the charge of the court in this case in harmony with that rule ? I think not. On the contrary, I think the charge is clearly to the effect, that if the prosecuting witness was induced by fraud to part with his money, the act of procuring it by such means would constitute larceny, whether he, at the time, intended to part with his title to it, or not. Instead of treating the intention of the prosecuting witness as-the gist and essence of the offense, the court treated it as an immaterial circumstance.
In Loomis v. The .People, supra, the court said: “ The prosecutor was induced to place his money upon a game of hazard, upon the assurance of Lewis, one of the prisoners, that he was to win, and he would have his money back, or that in case of loss, other money would be procured upon a check which Lewis claimed to have in his possession, and paid in place of that losf.” The court further said there was no loss, and therefore, the contingency in which other money than that which he placed on the game was tо be paid to him did not arise.
He himself placed the money on the game, and it was his until lost, and as it was never lost, the seizing and appropriating of it by the defendants was larceny ; as clearly so as if they had seized and appropriated it when he first laid it down. Even in that view, the court said the case was “ on the border line,” which separates the offense of obtaining money by false pretenses from that of larúeny.
It is quite clear that the intention with which the prosecuting witness parted with his money was wholly ignored in the case now before us.
If it be desirable to change the law, the power of the legislature is ample. It has been changed in Texas, and may be changed here. But, with Bishop, I think the courts have not the power to do it.
Therefore, I think the judgment and order should be reversed.
McKinstry, J., concurred.
Rehearing denied.