State v. Posey.&dagger
Decision Date | 16 March 1911 |
Citation | 70 S.E. 612,88 S.C. 313 |
Court | South Carolina Supreme Court |
Parties | STATE. v. POSEY.† |
1. Larceny (§ 16*)—Appropriation of Lost Goods.
If money is found under such circumstances that there is absolutely no clue to the ownership and no reasonable expectation that the owner can be found, the finder has the legal right to appropriate it to his own use, and, in doing so, is not guilty of larceny, but it would be otherwise if he knew or had a reasonable clue as to the ownership and fraudulently converted the money to his own use.
[Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 43-45; Dec. Dig. § 16.*]
2. Larceny (§ 3*)—Intent.
A larcenous intent is essential to the crime of larceny.
[Ed. Note.—For other cases, see Larcenv, Cent. Dig. §§ 3-10; Dec. Dig. § 3.*]
3. Larceny (§ 15*)—Fraudulent Breach of Trust—Validity of Trust.
A trust created for an unlawful purpose or one contrary to public policy will support an indictment for larceny consisting of a breach of trust with fraudulent intent.
[Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 39-42; Dec. Dig. § 15.*]
4. Criminal Law (§ 36*)—Defenses—Wrongful Act of Person Injured.
As crime is against society, it is no defense that the victim of the crime may also be guiltyo£ wrongdoing in the particular transaction out of which the offense arose.
[Ed. Note—For other cases, see Criminal Law, Dec. Dig. § 36.2-*]
5. Larceny (§ 68*)—Fraudulent Breach of Trust—Validity of Trust—Instruction.
Prosecuting witness was accosted on the street by defendant and his attention called to the act of a confederate in picking up a pocket-book. Defendant, pretending not to know the confederate, suggested to him that he should make an effort to find the owner of the pocket-book, and a discussion arose between the three as to what should be done with it. Thereupon defendant suggested that any money in the purse should be divided between the three, and, taking the purse from the confederate, opened it and announced that it contained a $100 bill, and stated that he would go across the street to a person whom he named and obtain change for the same. On returning he announced that the bill was for $200 instead of $100, and that the person named had but $130, and hence could not change it, and asked prosecuting witness to supply the $70 in order to change the bill. Prosecutor thereupon obtained $90, and the three walked to the house, and when they were near the gate defendant, pretending to be in a hurry, snatched the $90 from prosecutor's hand and hurried toward the house. The confederate assured prosecutor that everything was all right and that defendant would return with the money. The confederate then diverted prosecutor's attention until defendant could escape. In a prosecution of defendant for larceny, consisting of a breach of trust with fraudulent intent, held, that it was not error to refuse defendant's motion for the direction of a verdict on the ground that there was no evidence of any lawful agency or trust, since the jury might have found that the money was actually lost, and that the parties to the transaction did not know the owner thereof and had no reasonable clue to the ownership, and hence that appropriation of the money would not have constituted larceny.
[Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 180, 181; Dec. Dig. § 68.*]
6. Larceny (§ 14*)—Obtaining Property by Trick or Device.
Defendant in such ease could have been prosecuted for larceny at common law, in that he obtained possession of the money of prosecutor by trick, artifice, or fraud with intent to steal the same.
[Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 34-38: Dec. Dig. § 14.*]
7. Larceny (§ 15*)—Conversion by Bailee.
When the possession of property is legally obtained, the subsequent fraudulent conversion of the property will not support an indictment for larceny at common law.
[Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 39-42; Dec. Dig. § 15.*]
8. Criminal Law (§ 934*)—New Trial—Verdict Contrary to Instruction.
While the jury is bound to take the law from the court, right or wrong, and a verdict found in violation of the instruction is erroneous, if it appears that the verdict could have been based upon any view of the evidence which would make it accord with the charge, it will not be disturbed, especially where the charge is too favorable to the party complaining.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2294; Dec. Dig. § 934.*]
9. Criminal Law (§ 1144*)— Review — Presumption.
In a prosecution for* larceny based on a breach of trust with fraudulent intent, there being testimony from which the jury might have found that the trust was a lawful one, it will be presumed in support of a verdict of conviction that the jury took that view of the evidence, and that hence the verdict was in accord with a charge declaring that defendant could not be convicted if the jury found from the evidence that the trust was for an unlawful purpose.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 3034; Dec. Dig. § 1144.*] 10. Criminal Law (§1159*)—Appeal and
Error—Review of Questions of Fact. The decision of the jury on questions of fact will not be reviewed on appeal.
[Ed. Note.—For other cases, see Criminal Law, Cent Dig. §§ 3074-3083; Dec. Dig. § 1159.*]'
Appeal from General Sessions Circuit Court of Anderson County; J. E. McDonald, Judge.
Wesley Posey was convicted of larceny, consisting of a breach of trust with fraudulent intent, and he appeals. Affirmed.
Martin & Earle, for appellant.
P. A. Bonham, Sol., for the State.
The defendant was convicted of breach of trust with fraudulent intent, upon an indictment charging him with feloniously appropriating to his own use the sum of $90, the property of L. B. Frazier, which had come into his hands "as agent of said L. B. Frazier, to make change for said L. B. Frazier of $200 and return to him, the said L. B. Frazier, with part of said $200."
Frazier's testimony was, in effect, that, as he came out of a bank in the city of Anderson, he saw the defendant and another fellow, who appeared from the evidence to be a confederate of the defendant, on the street. This fellow pretended to find a pocketbook. The defendant nudged Frazier, and asked his confederate what it was. The reply was, "a pocketbook." Frazier suggested that they try to find the owner. The other fellow said it belonged to whoever found it. Frazier tried to get them to take it to several white men to see what was in it, contending that it belonged to the one who lost it; but the others contended that it belonged to those who found it. Finally the defendant opened the book and pretended to find a hundred dollar bill in it, and proposed to take it to a Mr. Brownlee to get it changed. Defendant then went away, ostensibly to Mr. Brownlee's to get the bill changed; but when he returned he said it was a $200 bill, and that Mr. Brownlee had only $130 in change, and told him if he would get $70 he could change the bill. They asked Frazier if he could let them have $70 to get the bill changed, offering to get it changed and divide the money with him. He went to the bank and got $70, and defendant wanted to take it to Mr. Brownlee, but Frazier insisted on going with him, saying that he knew Mr. Brownlee and had confidence in him and wanted to see him about the matter. When they got in front of a gate, which they represented to be Mr. Brownlee's (Frazier not knowing where Mr. Rrownlee lived), defendant told Frazier not to go in with him: Defendant and his confederate then told Frazier to give defendant the $70 to make the change. Frazier put his hand in his pocket to get the money, and took out $00. which defendant snatched out of his hand, pretending to be in a great hurry, and went on to the house, paying no heed to Frazier's protest at snatching the money from him. The other fellow assured Frazier that defendant would return with the money. While standing there, Frazier was watching defendant at the front door of the house, and to see Mr. Rrownlee when he came out. Just at that time, the other fellow attracted Frazier's attention to himself by groaning and acting as if suddenly taken violently ill, and when Frazier looked again for defendant he had gone around the house and disappeared. On cross-examination, Frazier said that he let the defendant have the...
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...at common law will not lie, because larceny, at common law, is an offense against the possession of property." State v. Posey, 1911, 88 S.C. 313, 70 S.E. 612, 614. Like some other states South Carolina has passed a statute, S.C.Code Ann. 1952, § 16-365, which provides: "Breach of trust with......
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§ 2-39 Breach of Trust with Fraudulent Intent
...of the offense. Ordinarily, the slightest removal of the chattel with felonious intent fulfills this requirement."); State v. Posey, 88 S.C. 313, 70 S.E. 612 (1911) (noting that to convict of larceny, the State must show defendant took the property and carried it away with intent to steal i......
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§ 2-38 Breach of Trust with Fraudulent Intent
...of the offense. Ordinarily, the slightest removal of the chattel with felonious intent fulfills this requirement."); State v. Posey, 88 S.C. 313, 70 S.E. 612 (1911) (noting that to convict of larceny, the State must show defendant took the property and carried it away with intent to steal i......
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§ 2-11 Armed Robbery
...of the offense. Ordinarily, the slightest removal of the chattel with felonious intent fulfills this requirement."); State v. Posey, 88 S.C. 313, 70 S.E. 612 (1911) (noting that to convict of larceny, the State must show defendant took the property and carried it away with intent to steal i......
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