186 Mo. 15 | Mo. | 1905
— At the December term, 1904, of the circuit court of the city of St. Louis, there was filed in the office of the clerk of said court an information by the circuit attorney of said city, charging the defendant Buck with having feloniously stolen from one Patrick J. Keane, at said city, the sum of two hundred dollars. Thereafter, defendant was put upon trial and found guilty and his punishment fixed at imprisonment in the penitentiary for three years. He appeals.
Patrick J. Keane, the prosecuting witness, lived at 3161a Clark avenue, St. Louis. He was a young man about twenty-two years old, and prior to March, 1903, was a clerk at the Laclede Gas Company, and became acquainted with defendant Buck on the tenth day of March, 1903, through an advertisement in the St. Louis Republic. It appears that Buck was engaged in the brokerage business under the name of the Atlas Brokerage Company, doing a business of buying and selling saloons, stores, dwellings, flats and apartment houses. He had placed an advertisement of some character in the Republic and it was in this way that Keane became acquainted with him.
On the morning of the tenth of March, Keane went to defendant’s place of business at 612 Chestnut street, for the purpose of securing employment. He was met by defendant Buck, who asked him for references. The references were given and Buck told Keane
The defense was that Keane purchased from de
No just complaint can be made of the instructions, so that the only question for our consideration is as to whether or not defendant was, under the evidence, guilty of grand larceny. If Keane had no intention of parting with his money when he turned it over to defendant, but only gave defendant temporary possession thereof as security for the faithful performance of his duties as the employee of defendant, and defendant, thereafter, feloniously appropriated it to his own use, against the will or consent of Keane with the purpose and intent of depriving Keane of it, he was guilty of grand larceny; otherwise not.
The distinction between larceny, false pretenses and embezzlement is concisely stated in Commonwealth v. Barry, 124 Mass. 325, as follows: “If a person honestly receives the possession of the goods, chattels or money of another upon any trust, express or implied, and, after receiving them, fraudulently converts them to his own use, he may be guilty of the crime of embezzlement,- but cannot be of that of larceny, except as embezzlement is by statute made larceny. If the possession of such property is obtained by fraud, and the owner of it intends to part with his title as well as his possession, the offense is that of obtaining property by false pretenses, provided the means by which they are acquired are such as, in law, are false pretenses. If the possession is fraudulently obtained, with intent on the part of the person obtaining it, at the time he receives it, to convert the same to his own use, and the person parting with it intends to part with his possession merely, and not with his title to the property, the offense is larceny.”
In People v. Morse, 99 N. Y. 662, the defendant advertised for a clerk. A Miss Herder applied for the position and was required by defendant to deposit $600
“If you are satisfied from the evidence beyond any reasonable doubt that it was the design of the defendant, Oarrie R, Morse, to fraudulently and feloniously obtain the complainant’s money and convert it absolutely to her own use without the complainant’s consent, and that in pursuance of that design the defendant so obtained $600 by the means and in the manner and under the circumstances testified to by the People’s witnesses, with the intention of converting the money absolutely to her use without the consent and against the will of. complainant, and that the complainant did not intend to part with the $600 absolutely, but only gave the accused temporary possession thereof as security for the faithful performance of the duties of Hattie M. Herder, I charge you that you can and ought to convict the defendant of grand larceny — otherwise, she should be acquitted.”
The defendant in that ease was convicted of grand larceny, and the judgment affirmed upon appeal. That case is cited with approval in People v. Dumar, 106 N. Y. 502; People v. Miller, 169 N. Y. 339.
In the case of People v. Gottschalk, 20 N. Y. Supp. 777, the evidence showed, “that, in answer to an advertisement by one W., seeking employment, and offering security, defendant, by false representations, and with intent to steal $200, deposited, according to advertisement, with him by W. as a pledge, the title to remain in pledgor, contracted with W. for his services, and agreed to return such pledge on the termination of the contract. The contract was subsequently terminated,
In State v. Anderson, 186 Mo. 25, there is quoted with approval the following from Loomis v. People, 67 N. Y. 322:
“While the element of trespass is wanting and the offense is not larceny, where consent is given, and the owner intended to part with his property absolutely, and not merely with a temporary possession of the same, even although such consent was procured by fraud, and the person obtaining it had an animus furandi, yet it is well said by a writer upon criminal law: ‘ It is different where, with the animus furandi, a person obtains consent to his temporary possession of property, and then converts it to his own use. The act goes farther than the consent, and may be fairly said fo be against it. Consent to deliver the temporary possession is not consent to deliver the property in a*22 thing, and if a person, animus furandi, avail himself of a temporary possession for a specific purpose, obtained by consent to convert the property in the thing to himself and defraud the owner thereof, he certainly has not the consent of the owner. He is, therefore, acting against the will of the owner, and is a trespasser, because a trespass upon the property of another is only ■doing some act upon that property against the will of the owner.’
“There is, to be sure, a narrow margin between a case of larceny and one where the property has been obtained by false pretenses. The distinction is a very nice one, but still very important. The character of the crime depends upon the intention of the parties, and that intention determines the nature of the offense. In the former case, where by fraud, conspiracy or artifice, the possession is obtained with a felonious design, and the title still remains in the owner, larceny is established. While in the latter, where title, as well as possession, is absolutely parted with, the crime is false pretenses.” To the same effect is People v. Morse, 99 N. Y. 662.
In State v. Copeman, 186 Mo. l. c. 118, in passing upon the question of larceny, Fox, J., in speaking for the court, said: “In other words, where the ownership of the property is not parted with, and by a fraud or trick the possession of the property alone is obtained, and is converted to the use of the taker without the consent, and at the time of resorting to the trick or fraud to obtain the possession it was intended to convert the property and permanently deprive the owner of it, this would- constitute larceny at common law as well as under the statute. [1 Bish. New Crim. Law, sec. 585; State v. Murphy, 90 Mo. App. 548; Loomis v. People, 67 N. Y. 322; State v. Vickery, 19 Tex. 326; 12 Am. and Eng. Ency. of Law (2 Ed.), 805.]”
In Stinson v. People, 43 Ill. 397, the same doctrine was announced. It was there, among other things, said: “If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way as directed or agreed upon for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back, and make the taking .and conversion a larceny, if the goods were obtained with that intent.”
These and many other cases which might be cited illustrate the principle that obtaining the possession
It looks unreasonable that Keane should be required to deposit with defendant as a guaranty of his honesty as an employee two hundred dollars, when he could have bought a half interest in the rooming-house business for the same amount. Defendant’s idea of what would have been a fair and reasonable deposit seems to have differed very greatly from that of Anderson’s and verifies defendant’s statement that “Anderson did not understand the business,” viewed from his standpoint, in that he did not get from Keane more money.
Stranger still is the contention that the two hundred dollars paid by Keane to defendant Buck was for the purchase price for a half interest in the rooming-house, when in fact Keane was to receive fifteen dollars per week for his services, and did in fact receive fifteen dollars and seventy-five cents on that ac
It was tbe province of tbe jury to pass upon tbe question of defendant’s intent in obtaining tbe money from Keane, and they have found it to be fraudulent. It was fairly submitted to tbem as a question of fact, with tbe instruction, substantially, that they must be satisfied from the evidence, beyond a reasonable doubt, that tbe defendant took tbe money feloniously, with intent to convert it to bis own use, or that be obtained it by fraud, with a like felonious intent at tbe time be obtained it.
Tbe jury also found against tbe contention of defendant that tbe money was paid to him by Keane in consideration for a one-balf interest in tbe rooming-house department. There was ample evidence to justify tbe finding of tbe jury, and tbis being so, we must decline to interfere. Tbe judgment is affirmed. It is so ordered.