Bussart v. State

• Decision Date: 31 July 1937
• Citation: 176 So. 32,128 Fla. 891
• Parties: BUSSART v. STATE.
• Court: Florida Supreme Court

176 So. 32

128 Fla. 891

BUSSART v. STATE.

Florida Supreme Court

July 31, 1937

Rehearing Denied Sept. 3, 1937.

Error to Criminal Court of Record, Palm Beach County; John L Moore, Judge.

Pete Bussart was convicted of grand larceny, and he brings error.

Affirmed.

BROWN J., dissenting.

COUNSEL E. M. Baynes, of West Palm Beach, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD Justice.

I cannot agree that the judgment should be reversed in this case, because I think that where one obtains possession of property by means of fraud or trickery with the preconceived design to appropriate the property to his own use, the taking amounts to larceny because the fraud vitiates the transaction and the owner is still deemed to retain constructive possession of the property. The conversion of it by the defendant is such a trespass to that possession as to constitute larceny.

In this case possession of the check was delivered to the accomplice of the defendant only because of the trickery and fraud practiced upon the maker of the check. It was not a voluntary delivery. 'The consent of the owner in surrendering the possession of property must be as broad as the taking.' Jarvis v. State, 73 Fla. 652, 74 So. 796. See, also, Groover v. State, 82 Fla. 427, 90 So. 473, 26 A.L.R. 373.

In this case the check was delivered to Virgil Bishop, but was only so delivered because the maker of the check believed that the name of Virgil Bishop had been drawn from the can, while in truth and in fact the name of Mrs. G. A. Gooding had been drawn from the can; and except for the fraud and deception which was practiced upon the maker of the check by Pete Bussart, Morris Lamb, and Virgil Bishop the check would not have been passed from the possession of the maker to Virgil Bishop, nor would the check or proceeds thereof have been converted to their own use by Bussart, Lamb, and Bishop.

I do not think that this conclusion is contrary to the authorities cited in the opinion by Mr. Justice BROWN in support of the conclusion which is reached in his opinion.

I think the judgment should be affirmed.

Mr. Justice BROWN'S opinion was written to be the opinion of the court. Mr. Justice BUFORD prepared the above as a dissenting opinion and it was concurred in by other Justices as indicated. So it is the opinion prepared for Mr. Justice BUFORD becomes the controlling opinion and the opinion by Mr. Justice BROWN becomes a dissenting opinion.

Judgment affirmed.

ELLIS, C.J., and TERRELL and CHAPMAN, JJ., concur.

DISSENTING

BROWN Justice (dissenting).

This writ of error is from a final judgment adjudging the defendant guilty of grand larceny, and sentencing him to serve eighteen months in the State penitentiary.

Information was filed against Pete Bussart in the criminal court of record for Palm Beach county charging him with feloniously stealing, taking, and carrying away 'One Hundred Seventy-five Dollars, good and lawful money of the United States of America, United States Currency, a better and more particular description of which said money is to the County Solicitor unknown, of the value of One Hundred Seventy-five Dollars, good and lawful money of the United States of America, of the goods, property and chattels of A. Dabrow and H. Gold.'

Trial was had, and the jury found the defendant guilty of grand larceny as charged. Motion for new trial was denied. The court entered its judgment of conviction and sentence upon the verdict of the jury. Writ of error was taken from that judgment.

The first question presented is whether the evidence was sufficient to sustain the verdict of guilty of grand larceny.

The facts in evidence are briefly these: A. Dabrow and H. Gold owned and operated two moving picture shows, one in Pahokee and one in Belle Glade, Fla. Every Thursday night between certain hours they conducted in their picture shows what is commonly known as 'Bank Night.' The drawing of names was held one Thursday night in Pahokee and the following Thursday night in Belle Glade, and alternated back and forth in that manner. Any person registered for participation in the award might be present at either place on bank night and be eligible to receive the award, the name of the person drawn being telephoned to the picture show where the drawing did not take place. The drawings were conducted in these picture shows in a manner peculiar to that locality. The name of each person registered to participate in bank night was typed on a narrow strip of paper with a teletype machine, the kind of machine used in telegraph offices, the piece of paper containing the name of the registrant placed in a capsule, the capsule closed, and each of such capsules placed in a large tin can. On bank night the manager of the theater where the drawing was being held would ask for two persons to volunteer to serve as judges and for one child to draw the name from the can.

The evidence shows that according to a pre-arranged plan, Pete Bussart, the defendant, and Morris Lamb responded, on Thursday night, September 19, 1935, when the call for two volunteers for judges was made. A little girl about nine years of age was called to the stage to draw the name. Morris Lamb held the can while the little girl selected a capsule to withdraw, which, when done, she handed to Pete Bussart, the defendant. After opening a capsule in his hands, the defendant revealed the name found therein as that of Virgil Bishop. Morris Lamb, an accomplice, and the other judge at the drawing, testified that the name of Mrs. G. A. Gooding was drawn from the can, that the capsule containing her was not opened, but that the defendant substituted in its place the capsule, prepared by the defendant and Lamb before going to the theatre, containing the name of Virgil Bishop, and secreted the capsule containing Mrs. Gooding's name until after the show. No one in the audience or on the stage that night noticed the change of capsules in the defendant's hands, including Morris Lamb, who testified that the change occurred. Morris Lamb testified that after the show that night the defendant showed him the capsule that was drawn from the can and that it contained the name of Mrs. G. A. Gooding. The drawing took place in Pahokee, while Virgil Bishop, according to the pre-arranged plan, was present at the theater in Belle Glade, and was given a check for $175, payable to cash, which was later cashed for its full face value and was divided between the defendant and Morris Lamb and Virgil Bishop, after the expenses of the adventure had first been paid, in the manner previously agreed upon.

'Larceny' at common law may be defined as the taking and carrying away of the personal property of another, which the trespasser knows to belong to another either generally or specially, without the owner's consent, and with the intent to deprive the owner of his property therein. See Driggers v. State, 96 Fla. 232, 118 So. 20; 17 R.C.L. 4, § 1; Clark on Criminal Law 241, § 101; Rapalje on Larceny and Kindred Offenses 3, § 1. Our statutes, sections 7223 and 7224, C.G.L., did not change the elements necessary to constitute the crime of larceny. The owner's nonconsent to the taking must be proven, by direct or circumstantial evidence. Kearson v. State, 123 Fla. 324, 166 So. 832.

A check drawn on a bank and payable to the order of the payee named therein, being a chose in action, was not the subject of larceny at common law (see 17 R.C.L. 29, 33), but is made so by the statute making it larceny for any one to steal the 'order' of another. Section 7223, C.G.L. S...