Opinion
No. 34903.
June 8, 1942.
1. LARCENY.
Evidence was insufficient for jury to find president of county board of supervisors guilty of grand larceny in connection with the issuance and payment of a warrant for a claim against county.
2. FALSE PRETENSES.
Where a person is induced by fraud to relinquish his property in goods as well as his possession thereof, the party who thus obtains the goods may be chargeable with a "cheat" at common law or under statutes against false pretenses but not with "larceny."
3. CRIMINAL LAW.
Where the Supreme Court reversed conviction for grand larceny for insufficiency of evidence, that court, instead of rendering final judgment, would remand case so that trial judge could, if he deemed it proper, act on authority of statute authorizing trial and conviction on a subsequent indictment where a defendant is acquitted for variance between indictment and proof or on exceptions to form or substance of indictment or record (Code 1930, sec. 1190).
APPEAL from the circuit court of Chickasaw county, HON. T.H. McELROY, Judge.
Thos. E. Pegram and Thos. E. Pegram, Jr., both of Ripley, and Rush H. Knox, of Houston, for appellant.
As disclosed by the record, there was nothing to bring to the attention of the board of supervisors as a body any irregularity or fraud in connection with the King claim. It appeared regular, was regularly placed on the claim docket by Wesley Patch, one of the deputy clerks; and the warrant, pursuant to such order of the board, was duly and regularly issued by said Patch. This warrant was in custody of the office of the clerk and in custody of the deputies, including W.F. Davis. It was taken by Davis, presumably, so far as the board or the clerk knew, for delivery to Hollis King and delivered to King.
Since no other authority or body politic, other than the board of supervisors, is given authority or the power to authorize the payment of claims by the issuance of a warrant therefor, the board has the exclusive power, as custodian of public funds of the county and public funds of any district thereof, to part with the possession of, and transfer title to, such funds. The board of supervisors surrendered possession of the money named in the order and warrant and passed title to the funds of the district to Hollis King and necessarily left the warrant in the hands of the clerk and his deputies, including W.F. Davis.
This fraudulent scheme violated the criminal law but it was not larceny.
Foster v. State, 123 Miss. 721, 86 So. 513; Hanna v. State, 168 Miss. 352, 358, 151 So. 370; Dukes v. State, 181 Miss. 704, 708, 181 So. 518.
Fred B. Smith, of Ripley, for appellee.
Counsel for the appellant cites only one case which really bears on the point raised by him, and that is the case of Foster v. State, 123 Miss. 721, 86 So. 513. It is true that he refers to the case of Hanna v. State, 168 Miss. 352, 151 So. 370, which he says follows the Foster case. He refers to the various statutes on larceny and embezzlement and undertakes to show that the crime here charged should have been embezzlement rather than larceny.
We think that the Foster case, so strongly relied on by the appellant, is a positive authority for the appellee in this case. The Foster case simply holds that where the ownership of property, as well as its possession, was intended to be passed from the true owner to the party receiving same, that it is not larceny. In other words, where the owner consents to the conversion of the property and both the passage of the ownership and possession, even though this passing was fraudulently procured, the crime is not larceny, but where merely the possession and not the title is obtained through fraud, it is larceny. In the Foster case the court said: "In other words, the ownership of the property, as well as its possession, was intended to pass from Thomas to Jones; and thus Thomas consented to the conversion of the property. And this is true notwithstanding the title and possession were obtained through false pretenses or other fraud. . . . If it were a case wherein Jones had obtained merely the possession and not the title, through fraud, and afterwards converted the property to his own use, without the consent of the owner, the offense would be larceny. But the case here is not larceny because Thomas intended to part with both the ownership and the possession of the property when he delivered it to Jones; the money was not paid to Jones to be held in trust, or to be returned to Thomas, but it was paid over in settlement of a fictitious deed with no intent on the part of Thomas to retain any interest in the money."
Counsel seems to have wholly overlooked the fact that the record in this case does not even remotely reveal any intention upon the part of the county, the owner of the money, to convey ownership thereof, or relinquish title thereto, either to the appellant or his co-conspirator, W.F. Davis. Had Davis and the appellant fraudulently procured the allowance of the claim and the issuance of the warrant directly to Davis or directly to the appellant, then we admit that the crime committed might have been other than larceny, but here the allowance of the fraudulent claim was procured to Hollis King, and if the county intended to part with ownership of the money, it was not to Davis and the appellant, but to Hollis King, and any intent on the part of the county to part with title was to part with it in payment of a just claim purporting to exist to the said King. It is not remotely intimated in the record that there was any intention on the part of the county to part with the ownership of the money to the conspirators who received same.
The thing that the appellant was charged with stealing was the money and that money was the property of District No. 1 of Chickasaw County until it was actually released by the depository. The allowance of the claim and the issuance of the warrant did not deprive the county of its money until the warrant was actually paid and the money received. When the allowance was made, no particular money belonging to the district was allocated for the payment of the warrant, but it was payable out of any money that the district might have. The final payment was the thing that passed the title and possession of the funds. The claim might have been allowed and the warrant might have been issued and might have remained dormant in the warrant book for years, but until the warrant was presented and the cash received thereon all money in the depository would be the property of the county. Therefore, the receiving of the money from the depository passed the possession, and it was never intended by the county, when it allowed the claim to Hollis King, if in fact it allowed it, that either ownership or possession of that money should pass to the appellant or his co-conspirator. Therefore, we say that the Foster case is one of the strongest authorities for the position of the state that we have yet found. The title of the money being in the county and the claim being allowed and the warrant being issued to Hollis King, that title could only pass to Hollis King, and when the conspirators got the money out of the depository they got the possession but not the title. They didn't get the money out of the depository in accordance with the direction, agreement, and understanding of the county, acting through its board of supervisors, that was intended for Hollis King; they got it wrongfully and fraudulently, and while they acquired possession they never acquired title as the money didn't go to the party for whom it was intended. Therefore, we again call attention to that pertinent language of the Foster case which said, "If it were a case wherein Jones had obtained merely the possession and not the title, through fraud, and afterwards converted the property to his own use without the consent of the owner, the offense would be larceny."
In the case of Akroyd v. The State, 107 Miss. 51, 64 So. 936, the court passed on a very similar situation and held that where 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, in pursuance of such intent, does deprive the owner of the property, the offense is larceny.
In the case of Edwards Hotel Company v. Terry, 185 Miss. 824, 187 So. 518, our court said: "If the possession of personal property, as in the case at bar, is obtained fraudulently, with the felonious intent existing at the time, to deprive the owner thereof, and such intention is carried out a theft is thereby committed."
We also call the court's attention to the case of Dixon v. State, 169 Miss. 876, 154 So. 290; Hanna v. State, 168 Miss. 352, 151 So. 370; Ware v. State, 186 Miss. 533, 191 So. 678; Dukes v. State, 181 Miss. 704, 181 So. 518; and Rory v. State, 176 Miss. 835, 170 So. 304. In each of these cases the court held that where it was the intention of the party from whom the money was secured to pass the legal title and the ownership to the party receiving same, even though it was secured fraudulently, it would not constitute larceny; but, that where the owner never intended for the title to pass to the party receiving same, and possession was secured fraudulently that this would constitute larceny.
Therefore, we respectfully submit, since this claim was not allowed and the warrant was not issued to the appellant and his co-conspirator, and since there was no intention on the part of the county to pass either ownership or possession to them, and since they fraudulently acquired the possession of the money, by their wrongful acts, that under the decisions there can be no question but that the crime was larceny. This is true on the assumption that the claim was filed and the warrant issued in accordance with the law, as it was allowed to and issued to Hollis King. But, we call the court's attention to the fact that according to the appellant's own testimony this claim was never properly and legally allowed, and therefore there was no intention, on the part of the owner, to pass the ownership of the money or the possession thereof, even to Hollis King.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The principle of law seems to be well established that where possession of property is obtained by means of fraud, trick, device or stratagem with the intention to convert the property to the use of the person securing possession after the possession is acquired by him and where the title to the property does not pass to the person securing possession, such conversion under such circumstances constitutes larceny.
Dukes v. State, 181 Miss. 704, 181 So. 518; Ware v. State, 186 Miss. 533, 191 So. 678; Hanna v. State, 168 Miss. 352, 151 So. 370.
It is the general rule that the consent or the authority of a person must be given to the taking and conversion of property.
32 Am. Jur. 914, Sec. 28; 32 Am. Jur. 908, Sec. 23.
It is clear, therefore, that the proof warranted the jury in believing that the appellant and Davis secured the possession of the money belonging to the district without securing title thereto, and that no title was intended to be passed by the delivery of the money because of fraud and misrepresentation by presenting a fictitious warrant which prevented a legal title from passing.
Argued orally by Thos. E. Pegram and Thos. E. Pegram, Jr., for appellant, and by Geo. H. Ethridge, for appellee.
This is an appeal from a conviction for grand larceny, and one of the appellant's complaints is that the court below should have granted his request for a directed verdict of not guilty.
The evidence discloses that in January, 1938, the appellant was a member and the President of the Board of Supervisors of Chickasaw County. At the January meeting of the board, a claim against the county was allowed to, and in the name of Hollis King for $167.22. A warrant therefor was issued to Hollis King or order by Wesley Patch, a Deputy Chancery Clerk, and delivered by him to W.F. Davis. This warrant, bearing the endorsement of "Hollis King by W.F. Davis," was presented by Davis to the county depository which paid it, delivering the money to Davis. The state's testimony discloses that Hollis King had not himself filed with the board of supervisors any claim against the county, knew nothing about the one that was filed nor of the issuance and payment of the warrant therefor. According to the evidence of W.F. Davis, who was a Deputy Chancery Clerk in January, 1938, he and the appellant agreed to file the Hollis King claim with the board of supervisors, to obtain its allowance, the issuance and collection of a warrant therefor, and to divide the money obtained equally between themselves, all of which, according to Davis, was done, but all of which the appellant denied. The money alleged to have been stolen is the $167.22 paid on the warrant issued to Hollis King therefor and alleged to be the property of Supervisors District No. 1 of Chickasaw County, Mississippi.
In support of the appellant's claim that the court below should have granted his request for a directed verdict of not guilty, counsel for the appellant say that the warrant, by means of which Davis obtained possession of this money, was issued by the owner of the money with the intention of parting, when it should be paid, with both the possession and ownership of the money. Consequently, when Davis cashed the warrant he obtained not only the possession of the money, but insofar as the county or its subdivision is concerned, the ownership thereof. All of which is true. It is also true that the issuance of the warrant was, according to the state's evidence, fraudulently obtained, nevertheless, no larceny was here committed, for the rule is "If, by fraud, a person is induced to part with his goods, meaning to relinquish his property in them as well as his possession, he who thus obtains them may be chargeable with a cheat at the common law or under the statutes against false pretences, yet not with larceny; because, it is assumed, the owner having actually consented to part with his ownership, there was no trespass in the taking." Bishop's Criminal Law (8 Ed.), Sec. 808. This rule, as Mr. Bishop further says, is "established too firmly for judicial overthrow." It has been several times announced and applied by this court, among the cases so doing being Foster v. State, 123 Miss. 721, 86 So. 513; and Dukes v. State, 181 Miss. 704, 181 So. 518. The appellant's request for a directed verdict should have been granted.
The judgment of the court below will be reversed but instead of rendering a final judgment here, the case will be remanded so that the trial judge may, if he thinks proper, act upon the authority given him in Section 1190, Code of 1930.
Reversed and remanded.