Opinion
No. 32354.
November 2, 1936.
1. FALSE PRETENSES. Larceny.
If, upon giving money to accused who failed to return it, owner intended to part with ownership thereof, accused because of false pretenses by which he obtained money was guilty of obtaining money under false pretenses, but if owner gave money to accused to be used for special purpose and then to be returned to him, accused was guilty of larceny.
2. LARCENY.
Evidence disclosing that owner gave money to accused, who failed to return it, not for accused's own use and benefit, but to be returned to owner after special purpose for which money was given to accused had been accomplished, held to support conviction of larceny as against contention that, if guilty of anything, accused was guilty of obtaining money under false pretenses.
3. LARCENY.
Indictment in larceny prosecution which alleged that the sum obtained by accused was the property of a certain person held not at variance with evidence disclosing that part of such money was obtained by such person from his wife, since, while indictment for larceny must allege ownership of property stolen, ownership alleged need not be complete but may be special.
APPEAL from the circuit court of Sunflower county. HON. S.F. DAVIS, Judge.
Neill Townsend, of Indianola, for appellant.
We submit that under the facts in this case the owner, Ridley Seals, in parting with his money gave it to the parties who received it, and that in so doing there was no proof that it was the intention of the owner to retain the title to his money, and, on the contrary, the owner in parting with the money invested the recipient with the title thereto, as well as the possession thereof, and consequently no larceny was committed. The passing of title constitutes the line of demarcation between larceny and false pretenses. We contend that under the proof in this case, if appellant is shown to be guilty of any crime it is obtaining money under false pretenses and not larceny because there is no proof but what the owner in parting with the money divested himself of the title and ownership as well as the possession thereof.
In the case of Courtney et al. v. State, 164 So. 227, recently decided in this court, the court drew the line of demarcation between the crime of larceny and false pretenses. In that case the appellants were charged with obtaining money under false pretenses and convicted of such, but the proof showed that the owner in parting with his money merely invested the recipients with the possession of same and not the title, the agreement being specific that the identical money was to be returned to the owner. The contrary is true in the case at bar, and if these facts here show that any crime has been committed it is obtaining money under false pretenses instead of larceny. If the owner in this case gave the appellant the money in question without a specific agreement and understanding that that particular money was to be returned to him there can be no larceny in this case.
Section 919, Code of 1930.
The indictment alleged that the eighty-five dollars and sixty-five cents was the property of Ridley Seals. The uncontradicted proof offered by the state to sustain that indictment is to the effect that only thirty-six dollars of the money belonged to Ridley Seals, and forty-nine dollars of it belonged to Lucinda Seals, his wife. Seasonable objection was made to this variance by appellant, but the state made no effort to amend the indictment. And, instead attempted to cure it with instructions which we contend is not sufficient. The money was mingled. Appellant cannot identify the offense should he be subsequently tried for the same offense. He could not hereafter plead former jeopardy.
We submit that the judgment of the lower court should be reversed and judgment rendered here for appellant.
Webb M. Mize, Assistant Attorney-General, for the state.
I submit that there was a specific agreement and understanding that the particular money was to be returned to the victim.
The case of Akroyd v. State, 107 Miss. 51, 64 So. 936, holds as follows: "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 of such intent, deprive the owner of the property, larceny is thereby committed."
Watson v. State, 36 Miss. 593, 2 Morris State Cases 1184; Hannah v. State, 168 Miss. 352, 151 So. 370; Courtney v. State, 164 So. 227.
This is an appeal from a conviction of grand larceny. The appellant's complaint is that the court below should have granted his request for an instruction directing the jury to return a verdict of not guilty. The reason assigned therefor is that the evidence discloses that the appellant, if guilty of anything, is guilty of obtaining money under false pretenses and not of larceny.
The evidence for the state, in substance, is to the effect that Ridley Seals and Jim Turner were traveling in an automobile on one of the streets in Indianola and passed the appellant who was walking in the same direction. Another automobile passed them, and, immediately thereafter, the appellant picked up a pocketbook in the street. Turner and Seals stopped, and the appellant came up to them; whereupon Seals asked appellant why he did not put the pocketbook in his pocket. The appellant then asked Seals and Turner if they saw him pick up the pocketbook, and, on their replying "yes," offered to split its contents with them in three ways if they would not "trap him." Seals then opened the door of the automobile; appellant got into it and dropped what Seals says was a one hundred dollar bill, which he offered to divide with the other two. On being asked how he was going to change it, the appellant said his "boss man" had seventy-five dollars belonging to him, and that he would borrow sixty dollars from his "boss man." Appellant then left to see his "boss man" and, after a short interval, returned and said his "boss man" found two thousand dollars in the pocketbook in addition to the one hundred dollars heretofore mentioned, which two thousand dollars the "boss man" kept. The evidence here is a little confusing, but the best we can gather therefrom is that the "boss man" would redeliver the two thousand dollars to the appellant if they (appellant, Seals, and Turner) would show him that they had enough money to take care of themselves through "this winter without bothering" the two thousand dollars. Turner then took five hundred fifty dollars, according to Seals, from his pocket and handed it to the appellant to show the "boss man" that he (Turner) was "no bum." Seals then said he had some money with him, but more at home. All of them, or Turner and Seals — it is not clear — then went to Seals' home where he obtained forty-nine dollars from his wife to which he added thirty-six dollars and sixty-five cents, making a total of eighty-five dollars and sixty-five cents, which he handed to Turner, who immediately handed it to the appellant for the purpose of showing the "boss man" that he (Seals) had "enough money to live on this winter without bothering any of this money," the two thousand dollars. The appellant then left for the purpose of carrying the money put up by Turner and Seals to his "boss man," and later returned and said his "boss man said that. He said he would meet us at the postoffice and divide the money, that his boss' partner didn't want to see him counting that much money out among the colored folks." The appointment was kept by Seals, but not by the others, and the appellant has not returned to Seals the money put up by him.
If, when he gave the eighty-five dollars and sixty-five cents to the appellant, Seals intended to part with the ownership thereof, the appellant, because of the false pretense by which he obtained the money, is guilty of the crime of obtaining money under false pretenses. But if Seals gave the money to the appellant to be used for a special purpose and then to be returned to him, the appellant is guilty of larceny. Courtney et al. v. State, 174 Miss. 147, 164 So. 227. It is clear from the evidence that Seals gave the money to the appellant, not for the appellant's own use and benefit, but to be returned to him (Seals) after the special purpose for which it was given to the appellant had been accomplished. It is true that Seals, in his evidence, used the words "give" and "gave," as did counsel when questioning him regarding what occurred between him and the appellant; but it is clear from the evidence that the words were used by Seals and understood by him in the sense of "deliver" and "delivered." The appellant, therefore, was rightly convicted of larceny.
The appellant further said that there is a variance between the allegation of the indictment and the proof. The indictment alleges that the eighty-five dollars and sixty-five cents obtained by the appellant was "the property of one Ridley Seals," while the evidence discloses that part of it was obtained by Seals from his wife. An indictment for larceny must allege the ownership of the property stolen, but the ownership alleged need not be complete but may be special; e.g., bailee, custodian, and "even such unlawful possession as the thief's who has stolen it." 2 Bishop New. Crim. Proced. (4 Ed.), sec. 721; 36 C.J. 833; Horn v. State, 165 Miss. 169, 147 So. 310. This being true, we shall leave out of view and express no opinion on the relevancy of the fact here that thirty-six dollars and sixty-five cents of the money was the sole property of Seals.
Affirmed.