13 Ga. App. 705 | Ga. Ct. App. | 1913
The accused was convicted of simple larceny, under an accusation charging that offense. He presents the point that if he was guilty of any offense the evidence demands a conviction of larceny after a trust. The evidence was that the accused went to the store of the prosecutor and wanted some goods to sell at a picnic which was to be held at Hatcher’s Station. The prosecutor asked the accused why he did not purchase the goods at Hatcher’s Station, and he replied that the merchants at that place did not have the goods he wanted. The prosecutor testified: “I let the defendant have on consignment, to sell for me at the picnic, the following goods (referring to the goods described in the indictment). The defendant was to sell these goods for me at the picnic and bring me back the money, or return the goods that were not sold. I made several demands on the defendant for the money, but did not get the money, and no goods have been returned to me that I let him have. After waiting about a month I took out a warrant for him. I explained to the defendant, when I let him have the goods, I was not selling the goods to him, but he was to act as my agent. The defendant came to me and got some candy and other goods to sell at a picnic. I consigned the goods to him.”
The point presented is not without difficulty. The same, facts may involve simple larceny and larceny after a trust, so that % conviction of either offense would be authorized. The decisions are
We may get the matter clear in our minds by recurring to the definition of simple larceny; which is, “the wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same.” Penal Code, § 152. There can never be a conviction of simple larceny unless it appears that the original taking was wrongful and fraudulent and with the intent at the time of the taking to steal the property. If the possession is acquired rightfully and without fraud, and subsequently the goods be converted, the offense is not simple larceny. If the owner voluntarily surrenders possession and retains title to the property delivered, without any artifice or fraud on the part of the person receiving it, a subsequent conversion of the goods will be larceny after a trust. In the present case the evidence shows that the owner surrendered merely the possession of the goods, but retained the title. His surrender of possession was voluntary. The case turns, therefore, on the question-whether there was any evidence from which the jury could find that he was induced to surrender this possession by any artifice or fraud on the part of the accused. In other words, the question is whether the jury could find that the original taking by the accused was wrongful and fraudulent and with a present intent to steal. Apparently, from the testimony of the prosecutor, the accused came to his store to buy some goods, either for cash or on credit, for the purpose of reselling them at a picnic. The prosecutor declined to sell the goods to the accused, but offered to deliver the goods to him in order that he might sell them as agent and for the benefit of the prosecutor, upon the agreement of the accused either to return the goods or to bring back the agreed price to the prosecutor. So far as appears, this arrangement was entered into at the suggestion of the
If it had appeared, from the testimony, that the accused gave a false reason for coming to the prosecutor for the goods (such as that he could not purchase them at Hatcher’s Station, for the reason that the merchants at that place did not have the goods he wanted, when in fact there were similar goods at Hatcher’s Station), this would have authorized an inference that he had the fraudulent intent at the time he received the goods from the prosecutor. Or if it had appeared that the accused did not in fact sell or make any effort to sell the goods at the picnic, such inference might have arisen. But nothing of this sort appears. The ease is one simply where the accused was appointed the agent of the prosecutor and the possession of the goods was voluntarily surrendered by the prosecutor without any artifice or fraud on the part of the accused, and he subsequently converted to his own use either the goods or the proceeds arising from the sale. For aught that appears, the accused may have sold the goods and stolen the money, forming the intent to steal after the goods were sold. It may be doubted whether, under the evidence as it stands, he could be convicted of larceny after a trust in stealing the goods, it not appearing but that in compliance with his contract he sold the goods as he agreed to do. But however this may be, we do not think he could be convicted of simple larceny without some evidence to show the existence of a fraudulent intent at the time he received the goods.
Judgment reversed.