73 Cal. 378 | Cal. | 1887
Lead Opinion
— The attorney-general contends that the bill of exceptions in this case cannot be considered because it was not presented and settled within the time mentioned in the code; but as it was settled, “ we will not inquire into the reasons which may have induced the action of the judge in signing the bill of exceptions after the statutory period, but will presume they were sufficient.” (People v. Sprague, 53 Cal. 422; People v. Lee, 14 Cal. 510.)
The information accused the appellant, jointly with one T. Furlong, of the crime of grand larceny. He was convicted as charged, and appeals from the judgment.
The information charges that the appellant and said Furlong “did feloniously steal, take, and carry away” a
Appellant’s point that the verdict was against the evidence— that is, that the findings of fact which the jury must have made are not supported by the evidence — is not tenable. There was considerable evidence on all contested questions of fact.
Appellant contends, also, that admitting all the facts as claimed by the prosecution, such facts do not constitute larceny; and that therefore the verdict is against law. And these facts, which the jury had the right to find, were substantially as follows: The appellant, together with said Furlong and one Lewandowsky, by false representations as to their property, financial ability, future intentions, etc., induced said Bernard to sell and deliver to them the property alleged to have been stolen. Bernard delivered the property to them at a place on the corner of Folsom and Twenty-third streets, in San Francisco, where they proposed to open and conduct a saloon and fruit store, and took from two of them a promissory note due in thirty days; but the understanding was that the property in the goods was to remain in Bernard until the note was paid. A couple of weeks afterwards, but before the maturity of the note, Bernard, hearing that there was some trouble at the place above named, went there and found the saloon closed and the property gone. Procuring a search-warrant, he went to appellant’s residence and found some of the property secreted there/—appellant having denied that he had it. There were other circumstances in proof not necessary to state here, — from all of which the jury might have found a felonious intent on the part of appellant and his associates from the beginning of the transaction. The contention of appellant, however, is, that as the possession of the goods was obtained by appellant and his associates under the contract, and
Larceny, under the present provisions of the Penal Code, — so far, at least, as they are applicable to this case, — is substantially the same as at common law. We have examined a great many adjudicated cases, both English and American, where the question was, What is a sufficient “ taking ” within the definition of the crime of larceny? At first it was, no doubt, the rule that the element of trespass was a necessary ingredient of the crime; and that when the possession of the thing charged to have been stolen had been originally obtained by the consent of the owner, there could be no larceny. It was soon held, however, that there might be larceny where there had been in fact a delivery by the owner, but where there had been no change of property, nor of legal possession, and where there was a mere temporary custody given for a special purpose, or where the possession had been obtained fraudulently with a felonious intent. (2 Bussell on Crimes, 8th Am. ed., 21 et seq.) The most difficult phases of the question arise where a defendant charged with larceny has by false and fraudulent pretenses obtained possession of the property under the guise of a purchase and sale. It is clear that in such a case, where there has been a change both of the legal possession and the entire property of the owner in the thing delivered, there can be no larceny; otherwise where there has been a change of possession, but no change of property. Some doubt has been entertained, however, on the question whether or not there could be larceny where there had been a change of possession without a change of the general title, but accompanied by the creation of some sort of trust or special right in the fraudulent buyer; but with respect to that question the law is undoubtedly settled
The rule as above stated no doubt gives a somewhat dangerous power to a jury. As was said by the Supreme Court of Pennsylvania, the secret intention of a defendant, and the time when that intention was formed in his mind, — whether before or after he obtained the property, — are matters about which a jury in many cases can have no certain knowledge; and their power in times of excitement might be arbitrarily exercised to satisfy their own prejudices or public expectation. (Lewer v. Commonwealth, 15 Serg. & R. 99.) On the
The point made by appellant that the goods found on his premises did not amount to more than fifty dollars, and that therefore he was not guilty of grand larceny, cannot be successfully maintained. If he was guilty of larceny at all, it was because he, with his alleged confederates in the first instance, feloniously obtained the goods from Bernard, and the goods thus obtained amounted in value to over fifty dollars.
We have discussed the foregoing questions because they will necessarily arise if the case be tried again; for the judgment must clearly be reversed, because the instructions to the jury were erroneous in one important and material matter. The charge of the court followed the rule hereinbefore stated with one marked exception: it did not include the element of felonious intent. The court, referring to the specific features of the case as presented by the evidence, told the jury several times, and in various forms of language (substantially), that if appellant, or those whom he aided and abetted, obtained possession of the goods by false representations, and the title did not pass, and that at the time possession was so obtained the party obtaining possession of the goods
For this reason, the judgment must he reversed.
Judgment is reversed, and cause remanded.
Concurrence Opinion
concurring. — I concur in the judgment, and with what is said by Mr. Justice McFarland, except as to what is said with respect to the charge of the court. I agree, however, that the charge was ambiguous, and was such as may have misled and confused the minds of the jurors.
Dissenting Opinion
dissenting. — I dissent. The foregoing opinion drawn up by McFarland, J., as to the charge to the jury by the trial court, directly conflicts with People v. Smallman, 55 Cal. 185, where the point passed on in this case is distinctly made, considered, and decided.
The obtaining possession of personal property by artifice or fraud, where title does not pass to the taker, with an intent at the time of the taking to convert it to the taker’s use, and the subsequent conversion of it to his use by the taker, is a felonious taking, and is larceny. (People v. Smallman, supra; United States v. Durkee, 1 McAll. 193-206.) I am of opinion that the judgment should be affirmed.
