51 W. Va. 220 | W. Va. | 1902
Although involving an old and well settled principle of criminal law, this case is the first of the kind to come to this Court and seems to be ráther novel because the courts are not often called upon to pass upon cases involving the question presented here. It is a conviction of the crime of grand larceny where the prosecutor has been deprived of Ms money by a trick and conspiracy. E. L. Dennison, a farmer residing in Harrison County at a point about twelve miles from Clarksburg, was the victim. On a certain Thursday while away from home he was followed up by the defendant, D. J. Edwards, who represented himself to be one of a wealthy firm of bankers and coal operators of Fairmont, named Watson, and said he wanted to buy the prosecutor’s land-, a tract of about four hundred acres, for the purpose of developing it as oil land, that being a section of the State in which there was considerable activity in oil production at that time. He made an appointment with Dennison, to see him at his (Dennison’s) home on the following Monday, promising to bring with him some Other parties. On the day agreed upon he came but there was nobody with him. He explained this by saying that the party whom he had expected to bring was a woman and that she was sick. Pie said he would bring her over in a few days, that whatever he might do would be all right, but that he did not want to trade until she came. He then invited Dennison to get in his buggy and drive down the road with him and show him the land. After they had gone some distance they met a large man, who, as they were driving past, inquired the distance to Clarksburg, and began a conver
The indictment contained three counts; two of them were in the usual form' and the third contained allegations of false pretense and misrepresentation. On motion to quash the indictment and each count thereof, the court sustained the motion as to the last count and overruled it as to the others. On the trial the jury found the defendant guilty on the second count of the indictment and acquitted him as to the first count. A motion to set aside the verdict was overruled and the prisoner was sentenced to three years’ confinement in the penitentiary. Several exceptions were taken and the case has been brought to this Court on a writ of error.
Unless there is some error by the admission of improper evidence or in reference to the instructions, the verdict cannot be disturbed. Where a person, by means of some fraud or trick, and with intent to steal, procures the delivery of money or goods to him by the owner, it amounts to a taking within the definition of larceny, unless the delivery of the possession is made for the purpose of passing the property or title in the goods as well as the possession. And, if possession be acquired by such means and with such intent and the goods or money are afterwards converted by the taker to his own use, the offense is larceny, and whether such intent existed at the time of the taking and practice of the fraud, is a question for the jury. But this distinction must be borne in mind: If the property is delivered with the intention on the part of its owner of parting with it altogether, passing both title and «possession, the offence is not larceny but obtaining property by false pretenses; but if the owner is induced to deliver the possession only, the taker having a preconceived design to convert it to his own use when obtained, it
These principles are well illustrated in numerous cases and the application of tliem runs back to some of the very old English cases. In Semple's Case, Leach C. L. 355, it was held that to hire a chaise for any length of time with an intention to convert it wrongfully to the use of the hirer is larceny and the nondelivery of it to the owner is evidence of such conversion. In Pear's Case, Id. 213, it is held that the obtaining of a horse under the pretense of hiring it for a dajq is felony, if the jury find the hiring was animo f wan di. In Patch’s Case, Id. 231, it is held that to obtain property from another by the practice of ring dropping is felony if the jury find it was obtained under a preconceived design to steal it. In Moore’s Case, Id. 291, it is held that to aid and assist a person, to the jury unknown, to obtain money by the practice of ring dropping, is felony, if the jury find that the person was confederating with the person unknown to obtain the money by means of the ring. In this ease, after the prosecutor and the prisoner’s confederate had agreed to divide the value of the ring between them, the prosecutor gave him twenty guineas and four doubloons on the faith of the ring, which' he held as a pledge, with the understanding that the stranger should return them the next morning and take the ring and give the prosecutor one hundred guineas for his share of the ring. The Reporter says: “All the judges agreed, that in considering the nature of larceny, it was necessary to attend to the" distinction between the parting with the possession and the parting with the property only; that in the first case it is felony, and in the last case it is not. "Upon the circumstances of the present case two of the judges wore of opinion, that the doubloons were to be considered as money, and that the whole was a loan on the security of the ring, which the prosecutor believed to be of much greater value than the money he advanced on it, and therefore that the possession as well as the property was parted with. But nine of the judges were clearly of opinion that it was felony; for they thought the twenty guineas and the
Loomis v. People, 67 N. Y. 322, 23 Am. Rep. 123, was a case very similar to this one. Olason, the prosecutor, was decoyed into a saloon by Lewis, a confederate of the prisoner, Loomis. Lewis pretended to have a check for five hundred dollars on the faith of which he got Olason to loan him ninety dollars in the following manner: Loomis and Lewis threw dice for five dollars, Loomis losing. Then Lewis agreed to divide that with Olason, but he declined to have anything to do with it. Then Loomis put up what was called one hundred dollars, and Lewis having only ten applied to Olason for ninety more saying, “I am sure to beat him again, and you can have your money back. If I do lose I have got the check for five hundred dollars and we will go to the bank and get the check cashed, and you can have the money.” Olason let him have the money, the dice were thrown, and Loomis won. Olason wanted his money back but Lewis asked him to let him have one hundred dollars more which he refused. Then Lewis put -up the pretended five hundred dollar check against the one hundred dollars put up by Loomis and Loomis won that, whereupon Lewis declared ho was worth nothing and the two confederates went away with Olason’s money. This was held to be sufficient to constitute larceny. Miller, Judge, delivering the opinion of the court, says: “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.” Miller v. Commonwealth, 78 Ky. 15, 39 Am. Rep. 194, is very similar to the Loomis case. There, the prosecutor, being intoxicated, was lured into a room where a gfime of. faro was being operated by the conspirators. The game was called a “brace” game and was so conducted that the conspirators always won and it was impossible for others to
Applying these principles to the case under consideration it was clearly right to submit to the jury the determination of the question, whether the prisoner did all the acts which induced the prosecutor to part with the possession of his money, with a preconceived purpose and design to take his money and convert it to their own use. The evidence in the case shows that the three hundred dollars was not to be used in any game thereafter to be played but was simply to be produced and' shown with the pretended seventeen hundred dollars of the prisoner’s money, as a condition precedent to the relinquishment to them by the prisoner’s confederate of the two thousand dollars which, it was protended, they had already won from the stranger, and the prosecutor’s money was delivered to the prisoner for a special and very limited purpose, namely, to put it with the seventeen hundred dollars in the box to make a total of two thousand dollars, which, with the money won from the confederate, made in -all four thousand dollars, composed of what they had risked and won, and which the prosecutor and prisoner were to divide. Such being the facts, there was nothing more than a bailment of the prosecutor’s money, and he had no intention of parting with anything but its mere possession, for a very special -purpose, to be executed in his presence, and the money to be returned to him and to remain in his possession until the prisoner should return
The prisoner asked the court to instruct the jriry that if they believed from the evidence that the prosecutor, willingly and voluntarily parted with his property by placing it in the hands of the prisoner to be used for an illegal and illegitimate purpose and the prisoner afterwards converted the property to his own use, there could be no conviction of larceny. The court refused to giye the instruction and it is arguod that this was error. If the prosecutor had bet his three hundred dollars on the game and had lost it, he could have recovered it in a civil action under
Another objection is, that it was error to permit the State to introduce testimony tending to show that the defendant obtained the money by' means of false representations, trickery and fraud, for the reason that the indictment does not specify the means by which the larceny was effected. There is nothing in this. It has been held repeatedly in Virginia that a conviction of larceny for obtaining money under false pretenses may be sustained upon a common law indictment for larceny. Dowdy v. Commonwealth, 9 Grat. 727; Leftwich v. Commonwealth, 20 Grat. 716; Price v. Commonwealth, 21 Grat. 846; Anable v. Commonwealth, 24 Grat. 563; Fay v. Commonwealth, 28 Grat. 912. 2 Bishop’s Crim. Proc., s. 185, says of this Virginia doctrine, that it would be contrary to principles generally maintained. But it is certainly sufficient where the case is one of pure common law larceny, as this one is.
The attorney for plaintiff in error devotes a great deal of his brief to his objection to the admission of the worthless State bank notes as evidence in the case on the ground that these papers having been taken from the person of the defendant by the officer who arrested him, were illegally seized. One complete answer to this is that if it was an illegal seizure, that is no objection to the use of the papers as evidence, they being proper evidence in the case in other respects, for the court can take no notice how they were obtained, whether lawfully or unlawfully ; nor would it form a collateral issue to determine that
What has been said on this subject disposes of the objection to the admission of the testimony of witnesses Bogess, Harrison, Fleming and Dennison concerning these old papers.
Instruction No. 2 given for the State is complained of. It was substantially that there might he larceny even though the possession of the property stolen was willingly relinquished byr its owner and that if the jury believed from the evidence, beyond a reasonable doubt, that the defendant obtained the possession of Dennison’s money by means of false representations with felonious intent at the time of stealing it, and, after obtaining its possession-he feloniously converted the same to his own use without the consent of Dennison, they should find the defendant guilty. This is a correct enhuneiation of the law, as has been shown, and the instruction was properly given. Instruction No. 2, asked for by the defendant was refused and it is claimed that the court erred therein. It was to the effect that, to constitute the crime of larceny, there must be a taking and a carrying away by a trespass of the personal property, etc., without any explanation of the meaning of the word “trespass” or what amounts to trespass in such case. From what has been said on this subject, it is manifest that the instruction would have been misleading. It was, therefore, properly refused. Instruction No. 5, asked for by the defendant, was also refused and the action of the court in reference to it is complained of. It was, in substance, that there could be no conviction for larceny upon evidence of obtaining money under false representations if the jury believe Dennison had willingly parted with his money. There was no evidence to warrant the instruction upon the law of obtaining money under false pretenses. There was nothing in the evidence from which it might be inferred
Affirmed.