Summary
In Dukes v. State, 181 Miss. 704, 181 So. 518, it was held: "Where the possession of personalty is fraudulently obtained from an owner who does not intend that ownership or legal title should pass, and person who obtains possession does so in pursuance of intent to deprive owner of personalty, the offense is `larceny'."
Summary of this case from Garvin et al. v. StateOpinion
No. 33106.
May 30, 1938.
1. LARCENY.
Where the possession of personalty is fraudulently obtained from an owner who does not intend that ownership or legal title should pass, and person who obtains possession does so in pursuance of intent to deprive owner of personalty, the offense is "larceny."
2. LARCENY.
Where possession of personalty is obtained from an owner who intends that possession and ownership should pass to other party or that ownership should pass to a third person, the party who obtains possession is not guilty of "larceny," even if title is reserved until balance of purchase money should be paid, since such a reservation of title is but security for balance.
3. LARCENY.
A person obtaining possession of personalty from an owner who intends that possession and ownership should pass is not guilty of "larceny," even if transfer of ownership was obtained by fraud, however flagrant, and transfer would not have been made except for fraud, since a transfer obtained by fraud is not ipso facto void but voidable, and, until avoided by appropriate affirmative action by transferrer, transfer stands as if there had been no fraud.
APPEAL from the circuit court of Scott county. HON. D.M. ANDERSON, Judge.
Mize Mize, of Forest, and Mize, Thompson Mize, of Gulfport, for appellant.
There was no fraud perpetrated and there was no felonious taking of the automobile because the automobile was taken in the presence of the Chevrolet Company and with their consent and approval and all of the necessary papers for the transfer of the possession were made out before the car was delivered and larceny cannot lie on these facts.
Foster v. State, 123 Miss. 721, 86 So. 513; Lawson v. State, 161 Miss. 719, 138 So. 361; Darris v. State, 159 Miss. 586, 132 So. 565.
The only thing that appellant did which was not proper and upon which he was evidently convicted of larceny was that he gave a check for $125 as the down payment on the automobile and it was shown that this money was to be paid back by Mr. and Mrs. Blevins upon their receiving their compensation. This check was not good and it is the only criminal act committed by the appellant. The evidence shows without dispute that the Chevrolet Company did not give the appellant ten days written notice of the dishonor of the check as they are required to do.
Section 924, Code of 1930; Cooper v. State, 127 So. 684, 157 Miss. 1; Johnson v. State, 132 So. 330, 159 Miss. 703; State v. Johnson, 141 So. 333, 163 Miss. 521.
It is an elementary rule of law that before a conviction for larceny can stand that there must be an asportation. In this case the possession of the automobile was given to Mr. and Mrs. Blevins who traded their old Ford car on the new Chevrolet and there was no asportation shown on the part of Dukes, the appellant, and it is fundamental and has been held many times that asportation has to be shown and proven.
McIntosh v. State, 2 Miss. 673; Williams v. State, 63 Miss. 58; McKinsey v. State, 111 Miss. 780, 72 So. 198.
We submit that the court below erred in refusing to instruct the jury to return a verdict of not guilty for Walter Dukes.
Courtney v. State, 164 So. 227; Akroyd v. State, 107 Miss. 51, 64 So. 936.
The law requires that when a false check is uttered that no prosecution shall be commenced until ten days' written notice is given to the maker of the check. The evidence is without dispute that this notice was not given.
Sec. 924, Code of 1930; Cooper v. State, 127 So. 684, 157 Miss. 1; Johnson v. State, 132 So. 330, 159 Miss. 703; State v. Johnson, 141 So. 333, 163 Miss. 521.
The court erred in giving the appellant a penitentiary sentence. We submit that in this case appellant was not guilty of grand larceny and if he were guilty of anything it was either false pretenses or simple trespass, both of which offenses are misdemeanors for which a penitentiary sentence cannot be given.
Sec. 923, Code of 1930; Russell v. State, 169 So. 654; Darris v. State, 159 Miss. 586, 132 So. 565; Pitts v. State, 115 Miss. 189, 76 So. 140.
We submit that it would be a miscarriage of justice and right to allow this conviction to stand and that the appellant is not guilty of the charge laid in the indictment and is not guilty of any crime and that he should be discharged by this court.
Sec. 592, Code of 1930; Conway v. State, 171 So. 16; Jolly v. State, 174 So. 244.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
In Akroyd v. State, 107 Miss. 51, 64 So. 936, it was held that if the possession of personal property is obtained fraudulently with the felonious intent existing at the time to deprive the owner thereof, and the person so obtaining it does, in pursuance to such intent, deprive the owner of the property, larceny is thereby committed.
Watson v. State, 36 Miss. 593; 25 Cyc. 40; Hanna v. State, 168 Miss. 352, 151 So. 370.
The testimony for the defendants makes it an issue for the jury as to whether or not Dukes told the seller that the check was worthless and that it would have to be held until money could be placed in the bank to cover it. The state witnesses specifically denied all of this. Such testimony did not have the effect of overthrowing the case as made by the state, but it became solely an issue for the jury and the requested peremptory instruction was properly refused.
There is ample competent testimony sustaining the verdict of the jury and the character of that evidence is not such as to justify a new trial.
Thomas v. State, 129 Miss. 332, 92 So. 225; Hinton v. State, 175 Miss. 308, 166 So. 762.
The authorities in this state and elsewhere are to this effect: Where the possession of personal property is fraudulently obtained, there being no intention on the part of the owner that ownership or legal title shall thereby pass, and the person who obtains the possession intends to deprive the owner of said property, and in pursuance of such intent does deprive the owner thereof, this is larceny.
But if at the time the possession is obtained, the owner intend that both possession and ownership shall pass to the other party, there can be no larceny of it by the latter, since no man can steal from himself. Or if at the the time of the delivery, it be intended that thereby the ownership shall pass to a third person, there can be no conviction of larceny from the original owner, for he is no longer the owner.
It is immaterial that in the transfer there is a reservation of title until balance of purchase money should be paid, for such a reservation is but security for the said balance of the purchase price. Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; and the fact that the transfer of ownership was obtained by fraud, however flagrant, and that except for the fraud the transfer would not have been made does not affect the rule as stated in the next foregoing paragraph; for the reason that a transfer obtained by fraud is not ipso facto void, although voidable. Until avoided by appropriate affirmative action on the part of the transferrer, the transfer stands as if there had been no fraud.
See authorities cited 55 C.J., p. 127, and 36 C.J., p. 777, also p. 859.
Two of our own cases are sufficient to disclose and illustrate the stated rule: Foster v. State, 123 Miss. 721, 86 So. 513, and the comment in Hanna v. State, 168 Miss. 352, 358, 151 So. 370. The undisputed evidence in this case is that the owner intended to deliver both possession and legal ownership; and although induced to do so by fraud and although without the fraud he would not have so done, the chargeable offense was not larceny, whatever else it might be. The indictment here charges larceny from the original owner who made the transfer, and charges nothing else; wherefore appellant was entitled to the peremptory instruction requested by him.
Reversed and appellant discharged.