230 P. 585 | Mont. | 1924
sitting in place of MR. JUSTICE RANKIN, disqualified, delivered the opinion of the court.
Defendant was tried under indictment for the crime of grand larceny. -At the close of the state’s case the trial court granted defendant’s motion to dismiss, and from this order appeal is taken.
The record discloses that about May 1, 1918, Henry and Johanna Hagen, husband and wife, were loaned by the Banking Corporation of Montana the sum of $16,000, to secure the payment of which a mortgage on an apartment house in Fort Benton, Montana, was given by them. Thirty-two bonds, numbered 1 to 32, inclusive, were issued against this mortgage, in the sum of $500 each, maturing by pairs in numerical order on the first day of November and of May of each year until final payment, due May 1, 1926. The bonds were payable to the Banking Corporation of Montana, trustee, or bearer. Two of these bonds, numbered 19 and 20, respectively, maturing May 1, 1923, were purchased by Mrs. Ida Tund Byers on or about May 1, 1918, and she was still the owner of them down to and including the day of the trial.
About March 23, 1923, the mortgage was paid and a satisfaction thereof, executed on behalf of-the bank by the defendant as president and O. A. Tweed as secretary, and sealed with the seal of the bank, was given to the mortgagors, bearing date March 19, 1923, and recorded in Chouteau county on March 24, 1923. The money received in satisfaction of the loan was checked off to the various persons holding the unpaid bonds, including $1,035 to Mrs. Byers, in the form of cashier’s cheeks
On April 7, 1923, the defendant wrote Mrs. Byers as follows: “My Dear Mrs. Byers: The next semi-annual interest payment date on the above bonds will be May 1. Arrangements have been completed for paying the loan off as soon as the bonds can all be gathered in. You will please turn your bonds in to us at your convenience and within the next ten; days or two weeks so that the details can be completed.”
On April 12 Mrs. Byers brought her bonds to the bank for collection. She talked with the- defendant, who said nothing of the mortgage having been paid in full. He did not deliver to her the cashier’s check, but instead a receipt for the bonds.. She never did receive any part of her money, save the ten percent dividend from the receiver in December, 1923.
For the purpose of proving criminal intent, evidence was introduced regarding a MeCaully-Speneer bond issue, which was handled in the same manner as the Hagen loan.
But one question is presented, and that is: Did the state produce sufficient evidence -to go to the jury?
The defendant urges in his brief that four things were essential for the state to prove, namely: First, that title to the property appropriated stood in another person; second, that the defendant took or appropriated the property to his own use and benefit, or the use and benefit of another; third, that the true owner was deprived of the said property; fourth, and in addition that the defendant took or appropriated the property to his own use or the use of another with the fraudulent intent at the time of taking to deprive the owner thereof, not temporarily but permanently, and if the facts established indicate that it was not the intention of the defendant to permanently deprive the owner of the said property, then the said defendant is not guilty of larceny.
There can be no question but that the title to the amount of money as shown by the cashier’s check stood in Mrs. Byers. Neither can it be gainsaid that she was deprived of this property, and its use and benefit went to another. As to the fraudulent intent of the defendant to permanently deprive the true owner of the property, the cashier’s check of March 28, the letter of the defendant of April 7, his subsequent conversation with Mrs. Byers on April 12, wherein he made no mention of the loan having been paid and when, instead of handing her the cashier’s cheék already in her name and which was never delivered to her, he took the bonds and had issued a receipt, the evidence received concerning the McCaully bond issue — all with certainty establish a sufficient case for the deliberations of a jury.
Accordingly, the order appealed from is reversed and the cause remanded for a new trial.
Reversed and remanded.