State v. Crumbey

81 W. Va. 287 | W. Va. | 1917

POEEENBARGER, JUDGE:

The plaintiff in error, by a motion made in due time, attacked'the verdict against him, in a trial on an indictment for the larceny of a railroad conductor’s train box valued at $1.90, seventy-seven transfer tickets valued at $37.50, two hundred ferry tickets valued at $10.00 and fifty railway passenger tickets valued at $75.00, the goods and chattels of the Chesapeake and Ohio Kailway Co., for lack of proof of such value in the articles taken as suffices to make the offense committed, if any, grand larceny, and for error in the admission of proof that the tickets alleged to have been taken, though practically worthless to the accused in the condition in which they were at the time of the taking, could have been easily and readily made useful to him or other persons, as means of procuring transportation, by slight alterations therein. The court having overruled his motion and sentenced him to imprisonment for a period of five years, he seeks reversal of the judgment and a new trial.

All of the passenger tickets in question had been taken up from passengers on the train, by the conductor and canceled by the punching of holes therein. The transfer tickets and ferry tickets, had not been used and no stamp nor countersignature had to be put on them to make them available for use, but there were printed dates on them, one of which in each case, had to be punched out by the conductor issuing them, to make them so. Although the passenger tickets had been punched, the conductor was permitted to testify that any person having one of them, might render it available for use, by writing a notation on it to the effect that it had been .punched by mistake, as conductors sometimes do, thereby making them receivable for transportation, by the issuing carrier; and that the other tickets could have been wrongfully made effective by punching out dates printed thereon-

The offense charged is a statutory one. At common law, the larceny of notes, checks or other papers calling for the payment of money was not deemed to be larceny of the money called for by the paper, but only larceny of the paper itself. 2 Bish., Crim. L., sec. 769; 1 Hawk. P. C., ch. 33, see. 22. Under the statute, see. 15, ch. 145, Code, a bank note, cheek or other writing or paper of value is the subject of larceny, not merely as regards the intrinsic value of the paper, but as regards its value as a chose in action, its commercial value. And the money due on or secured by a stolen writing, paper or book, remaining unsatisfied, or the value of the property or money affected thereby, is deemed to be the value of the article stolen. Code, ch. 145, sec. 16. The tickets alleged to have been stolen belonged to one of two classes of papers contemplated by the statute, those constituting evidences of indebtedness and specifying the amounts thereof, or of rights to have and receive specified sums, and those having values not specified on the faces thereof. None of the papers here-involved called for the payment of money, or evidenced any right to receive it. .Some of them were good for transportation, only when properly authenticated. The passenger-tickets may have had value as vouchers in the settlements of accounts, but, if so, no evidence was adduced to prove the fact. The conductor testified that, among the papers taken up by him for transportation, there were six or seven coupons taken from interchangeable mileage books, worth three- or four dollars each. These coupons may have been useful and valuable in settlements between the carrier and the association by which the books were issued, or other carriers, but there is no evidence that they were, nor is there any certain or definite evidence as to the number of the coupons; or their value. Obviously, the conductor testified only to his general recollection as to the number and values thereof.

Theft of and incomplete and ineffective paper which, if 'complete and effective, would call for the payment of money, is larceny of the paper only, not of the amount of money it "would call for, if complete. Such was held to be the law applicable to an unstamped check. Regina v. Perry, 1 Cox’s Crim. Cas. 222. Theft of country bank notes paid in London, but susceptible of reissue, falls within the same principle. Rex v. Clark, R. & E. C. C. 181. Larceny of unstamped, undated, and unsigned railroad tickets is of the same character, McCarty v. State, 25 Pac. Rep. 199, and so Is that of railway passes intended for the use of employees, prepared and left in blank, except as to the printed fac simile of the general manager, but not counter-signed by the officer, whose signature is necessary to make them available. State v. Muscang, 53 N. W. 874. Under a statute very much broader than ours and making “any instrument or writing whereby any demand, right or obligation is created, increased, extinguished or diminished,” a subject of larceny, local and coupon railway tickets were held to be such subjects, in State v. Wilson, 95 Ia. 341, on proof that they were receipts to the conductor and worth to him the amount of the fares between the stations covered by them, notwithstanding they had been taken up by a conductor.

If the local tickets and coupons taken up by the conductor were, under the rules and regulations of the railway company, receipts for him in his settlements with his employer, for the value of the transportation represented by them, and such value was $20.00 or more, theft thereof was grand lareeny. The value of the paper, contemplated by the statute, Is not its value to the thief. That is not the criterion. Its value to the owner or person from whom it is taken is one test, if not the true and only one. In the cases to which reference has been made and others the principal inquiry was whether the stolen papers had been so far perfected at the time of the thefts thereof, as to make them impose obligations upon the owners in favor of other persons, or upon other persons in favor of the owners. But the lifted railroad tickets and coupons do not, on their faces, purport to reate any obligations upon the railway company or its conductor, nor disclose any specification of value or use to any person. Prima facie, the obligations, they imposed had been satisfied. 'Whether they had any value not disclosed on their faces, depends altogether upon extraneous evidence, and none was adduced except the general statements of witnesses, that they were worth a certain sum of money. Why or how they were worth anything beyond the intrinsic value of the paper, was not indicated. Such testimony is too vague and uncertain to sustain a conviction of a heinous crime, carrying a long term of imprisonment by way of penalty. These statements were mere opinions or conclusions based upon no data or evidence by which their correctness could be“ tested.

Authorities already cited establish the impropriety of the admission of proof of methods of wrongful and unauthorized alterations of the tickets, so as to make them illegitimately useful or available. Such acts would amount to forgeries, and if proof of capacity to turn a valueless paper into a valuable one by forgery, can be admitted to make out an offense, in connection with the theft of a piece of paper, the larceny of a blank cheek, note or any other scrap of paper could be enlarged into a felony.

For the errors in the admission of improper evidence and insufficiency of the evidence, to prove the accused guilty of grand larceny, the judgment will be reversed, the verdict set aside and the case remanded.

Reversed and remanded for new trial.