Calhoun v. State

Decision Date09 June 1941
Docket Number34557.
Citation2 So.2d 802,191 Miss. 82
CourtMississippi Supreme Court

R D. Everitt, of Ruleville, for appellant.

Greek L. Rice, Atty. Gen., and Geo. H. Ethridge, Asst. Atty. Gen for appellee.

McGEHEE Justice.

Upon an indictment charging him with the larceny of one diamond bar pin of the value of $85, the property of Mrs. E. O. Catledge the appellant was convicted and sentenced to serve a term of two years in the state penitentiary, and he prosecutes this appeal.

Mrs Catledge, who lived at Tutwiler, Mississippi, was asked, as a witness for the state upon the trial, to "tell the jury whether or not at any time during this year (1940) you lost a diamond bar pin?" Her reply was: "Well, I didn't exactly lose it. It was either taken or misplaced. I wore the pin the 4th or 5th of April the last time. I remember pulling it off and dropping the safety catch. I picked up the safety catch, put it on the pin and dropped it in the handkerchief case where I kept it. The next day we moved on the other side of town and I didn't wear it any more. I started to dress on the 26th of April and started to get the pin and it was gone. We bought it from Mr. Weiler and he sent me a description of it. I didn't see it any more until they sent for me to identify it in Drew." She further testified as to the value of the pin, and of having identified it after its recovery from a pawn shop in Memphis, Tennessee, during the month of August of the same year.

At the time the pin was taken or misplaced, the appellant was employed at Ruscoe's Pressing Shop at Drew, Mississippi, and was so employed at the time it was later found. Clothing was received at this pressing shop from customers at Tutwiler and other nearby towns to be cleaned and pressed, but the appellant had no part in taking up the clothing or in transporting it to the shop. In fact, he was not shown to have been seen in Tutwiler at any time during the period from April to August, inclusive. Moreover, the proof disclosed without dispute that Mrs. Catledge did not send any clothing to this shop at any time during the month of April, 1940, but that she did so subsequent to the month of April and on through the month of August of that year. The appellant testified that some two or three weeks before this pin was recovered by the owner as aforesaid, he found it in the bottom of a large basket in which suits and dresses were placed when put in the truck to be carried to the shop to be cleaned and pressed, and that it was lying loose in the bottom of the basket when he was preparing to empty some paper from the basket after the clothing had been removed therefrom.

It was also shown that it was the duty of the appellant to search the clothing for money and other articles of value in order that they might be returned to the owner. When anything was thus found, he was supposed to carry the same to the office and identify the article with the name of the owner of the garment from which it had been removed and place it in a desk provided for that purpose. It appears that he had always performed this duty faithfully in regard to all articles found in clothing, as he knew the owner or had the means of ascertaining the owner by reason of the ownership of the garment from which the same had been removed. But, on the occasion in question, it is shown that not knowing who owned this bar pin, and not having any immediate means of ascertaining the true owner, he laid it aside in some place other than in the desk in the office, and let it remain there, without the knowledge of his employer, for two or three weeks awaiting its being claimed; and that no claim therefore having then been made, he sent it to a pawn shop in Memphis by one Will Bibb, who frequently drove a truck to and from Memphis, and requested Bibb to ascertain its value at the pawn shop and try to obtain some money on it. When Bibb carried it to the pawn shop, he was arrested and placed in jail, and with the result that the pin was soon recovered by Mrs. Catledge.

It was held in the case of Beatty v. State, 61 Miss. 18 that one who unlawfully takes another's personal property, not intending to steal, and afterwards converts it, intending to steal, is guilty of larceny; and it was likewise held that if the original taking is lawful and bona fide, a subsequent fraudulent conversion is not larceny, because there is no trespass. This decision is in line with the general rule in regard to when the appropriation of lost property constitutes the crime of larceny. In Smith v. Com., 96 Ky. 85, 27 S.W. 852, 49 Am.St.Rep. 287 that: "The general...

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6 cases
  • Pearson v. State, 42825
    • United States
    • Mississippi Supreme Court
    • December 20, 1963
    ...taking are questions of fact for the determination of the jury. See Lupo v. State, 191 So. 491 (Miss.). In the case of Calhoun v. State, 191 Miss. 82, 2 So.2d 802 (1941), this Court again pointed out the ancient rule and said: 'It was held in Davis v. State, 50 Miss. 86, that the possession......
  • Hoke v. State
    • United States
    • Mississippi Supreme Court
    • December 16, 1957
    ...Mr. Allen testified that the stolen property was missed within a month or six weeks after the taking. In the case of Calhoun v. State, 191 Miss. 82, 2 So.2d 802, 804, with reference to the recency of the possession, the Court 'It was held in Davis v. State, 50 Miss. 86, that the possession ......
  • Rushing v. State, 55190
    • United States
    • Mississippi Supreme Court
    • December 5, 1984 by the accused five or six months after the theft was not sufficiently recent to impute guilt. Similarly, in Calhoun v. State, 2 So.2d 802 (Miss.1941) this Court held that possession of a diamond pin bar by the accused five months after it was discovered missing did not give rise t......
  • Minor v. State, 40927
    • United States
    • Mississippi Supreme Court
    • October 27, 1958
    ...of possession.' 52 C.J.S. Larceny Sec. 106; Jones v. State, 1853, 26 Miss. 247, 248; Davis v. State, 1874, 50 Miss. 86; Calhoun v. State, 1941, 191 Miss. 82, 2 So.2d 802. Assuming the State's evidence, identifying the property in appellant's possession as being the stolen property, was suff......
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