Opinion
No. 27489.
October 15, 1928.
1. LARCENY. Evidence held insufficient to sustain conviction for larceny as failing to show existence of animo furandi.
Evidence, in prosecution for grand larceny, held insufficient to sustain conviction as not showing existence of animo furandi at time of alleged fraudulent obtaining of automobile or at any other time previous to its recovery.
2. LARCENY. One converting personal property with intention to steal, after previous unlawful taking without such intention, is guilty of larceny.
A man who unlawfully takes another's personal property not intending to steal, and afterwards converts it intending to steal, is guilty of larceny.
3. LARCENY. Subsequent fraudulent conversion is not larceny in case original taking is lawful and bona fide.
In case originally taking is lawful and bona fide, a subsequent fraudulent conveyance is not larceny, because there is no trespass.
APPEAL from circuit court of Simpson county; HON.W.L. CRANFORD, Judge.
A.M. Edwards, for appellant.
There is no testimony in this case that even tends to show that the appellant intended to take, steal and carry away the said automobile as charged in the indictment, but on the other hand the evidence is overwhelming to the effect that he had no intention of taking the property and converting it to his own use.
"To constitute the offense of larceny, the goods must have been taken wrongfully or fraudulently, with the intent to convert them to the taker's own use, and make them his own property. If there be no such intention, then the taking amounts to a trespass only. If the taking be open, and in the presence of the owner or other person, this carried with it evidence that it is only a trespass." Daniel v. State, 8 S. M. 401, 1 Mor. St. Cas. 336, 47 Am. Dec. 93. "To constitute larceny there must be an asportation of the property. McIntosh v. State, 2 Miss. Dec. 673."
The defendant was indicted under section 981 of Hemingway's Code, for grand larceny, and not under section 868 of said Code for failing to return borrowed property on time.
"The taking of property without the owner's consent merely for temporary use, without intent to deprive him permanently of his property, does not constitute larceny and an instruction to the contrary is fatally defective. Leland v. State, 82 Miss. 132, 33 So. 842."
Rufus Creekmore, Assistant Attorney-General, for the state.
The jury were well justified in believing that the defendants fraudulently obtained possession of the car by their promises of a prompt return of the same, but knowing at the time that they did not intend to return it, but to convert it to their own use.
A person is guilty of larceny if by fraudulent means he obtains possession of goods even though with the consent of the owner, if at the time of obtaining such possession, he had the felonious intent to deprive the owner of them, and, in fact, did do so. That this is a correct statement of the law has been decided by our court in the case of Watson v. State, 36 Miss. 593.
The appellant, Ross Butler, and another were jointly indicted for grand larceny in the circuit court of Simpson county. The other defendant pleaded guilty. Butler was tried and convicted, and sentenced to serve a term of four months in the penitentiary. He prosecutes an appeal here.
The essential facts upon which his conviction rests are these: "On May 1, 1927, G.L. Barr, the owner of an automobile, accompanied by the defendant, Ross Butler, and Tommy Tullos, started on a trip. After they had gone some little distance together, Barr, the owner of the car, concluded to abandon the trip. The defendant, Butler, and his associate wanted to borrow the car to go to see some girls, and, after exacting a promise from them that they would return it within fifteen or twenty minutes, Barr let them have his car. They did not return the car to Barr, as they agreed to do, but drove many miles and in several counties in South Mississippi, sleeping in the car at night and eating at stores. They left with the car on Sunday afternoon, and returned to the vicinity of Braxton, near the home of Barr, on the following Wednesday afternoon, when Butler left his companion with the car. Learning that warrants had been sworn out and that search was being made, Butler took the searching party to the place on the public road where he had left Tullos with the car. The car was not found at this point, but was found, deserted, in a ditch some distance away. The defendant admits that he was drinking and drunk during the time he was in possession of the car. On these facts the court below submitted the issue to the jury and refused the peremptory instruction requested by the defendant.
The truth is that the jury was only warranted in finding that the defendant, Butler, and his companion failed to comply with their promise to return the car to Barr within a few minutes; that they abandoned their purpose to visit the girls, and went on a joy ride with "all the accoutrements to paint the pine woods red." But there is no satisfactory evidence on which we could say the animo furandi existed at the time of the alleged fraudulent obtaining of the car, or at any other time during their escapade, or that they intended to deprive the owner of his car permanently.
It is true that this court has held that a man who unlawfully takes another's personal property, not intending to steal, and afterwards converts it, intending to steal, is guilty of larceny. Beatty v. State, 61 Miss. 18. It is likewise true that if the original taking is lawful and bona fide, a subsequent fraudulent conversion is not larceny, because there is no trespass. In the Beatty case, supra, Judge COOPER, as the organ of the court, analyzed the authorities and announced the above conclusions.
There is nothing in this record to show that at the time the defendant and his associate borrowed the car to go to see the girls they intended to fraudulently convert it to their own use; nor is it unreasonable to believe that, after they started on said mission and took a few drinks, they continued the chase across South Mississippi as long as the "moonshine" lasted. The evidence supports the theory of the defendant that they did not intend permanently to deprive the owner of his property; and, on the facts adduced before the jury in the court below, the crime, if any, was that of trespass. See Leland v. State, 82 Miss. 132, 33 So. 842.
Reversed and remanded.