Devore v. Territory

• Decision Date: 07 September 1894
• Citation: Devore v. Territory, 37 P. 1092, 2 Okla. 562, 1894 OK 19 (Okla. 1894)
• Parties: DEVORE v. TERRITORY.
• Court: Oklahoma Supreme Court

37 P. 1092

2 Okla. 562, 1894 OK 19

DEVORE v. TERRITORY.

Supreme Court of Oklahoma

September 7, 1894

Syllabus by the Court.

1. If one is induced by a trick or a fraud to give up the possession of his property, and the possession has been for a special purpose, as for security that he will perform his part of a contract, and if in so surrendering the possession he still meant to retain the right of property in himself until the full performance of the contract by those with whom he dealt, and the property is appropriated and converted to their own use by those to whom the possession was thus given such appropriation and conversion will be larceny.

2. If fraud is used in getting possession of property, which possession is not accompanied with the ownership thereof, and the property is afterwards converted to his own use by him who has thus acquired possession, the fraud will supply the place of trespass in the taking of the possession of the property, and the conversion will be felonious.

3. When conspiracy is alleged, while it is important that evidence shall first be given of such conspiracy, yet upon the undertaking by him who charges the conspiracy that such conspiracy will be shown, and it appears to be necessary and important first to introduce conversations had and acts done by any one or more of the alleged conspirators in the absence of the rest, that course will be permitted, in the discretion of the court.

4. The loss of instructions given by the court to the jury, after the trial, and before the case is made up for the supreme court upon appeal, is not ground for reversal.

Error from district court, Logan county; before Justice Frank Dale.

Squire Devore was convicted of larceny, and brings error. Affirmed.

John Foster, for plaintiff in error.

Harris Huston, for the Territory.

McATEE J.

The plaintiff in error, together with Williams and Anderson, his co-defendants, induced Welborn, the prosecuting witness, to part with the possession of his mules and other property upon the assurance that he should receive a deed from plaintiff in error and his wife conveying to him (Welborn) certain lots in block 73 in East Guthrie, which they represented to Welborn that plaintiff in error owned. The representation was false but by means of it the plaintiff in error, with his confederates, succeeded in getting possession of Welborn's property, and forthwith converted it to their own use. It is evident that Devore conspired with Williams and Anderson fraudulently and feloniously. Upon the facts offered in evidence, we are to determine whether the defendant was guilty of grand larceny. That is the crime with which Devore, Williams, and Anderson are jointly charged in the indictment, and upon which, Devore having demanded a separate trial, the jury found a verdict of guilty against him. We think the evidence abundantly supports the verdict. If Welborn was induced to part with his property by means of the false representations of Devore and his confederates, and if he meant, at the time of parting with the possession of it, to part with the ownership also, and was thus defrauded of it, while the offense would be a crime, it would not be that of larceny. But if, on the other hand, while Welborn was thus induced to give up possession of his property to the conspirators, it was delivered merely as security for the performance of his part of the contract, and he still meant to retain the right of property, and that the ownership of it should not be transferred or pass from him until a good and sufficient deed should be executed to him by Devore conveying the whole and unincumbered ownership in the lots in block 73 in East Guthrie, and if Devore and his confederates or either of them, upon obtaining such possession by the consent of Welborn, appropriated the property, and converted it to their own use, that would constitute the crime of larceny. "The character of the crime depends upon the intention of the parties, and that intention determines the nature of the offense. Where, by fraud, conspiracy, or artifice, the possession is obtained by felonious design, and the title still remains in the owner, larceny is established." Loomis v. People, 67 N.Y. 329. Trespass is necessary to constitute larceny, and differentiates the crime from that of obtaining property under false pretenses; but, if fraud is used in obtaining possession of the property, it will be construed a trespass, and the taking of it so as to make the conversion felonious. "If rogues conspire to get away a man's money by such tricks as those which are pleaded here, it is not going beyond the settled rules of law to hold that the fraud will supply the place of trespass in the taking, and so make the conversion felonious." People v. Shaw, 57 Mich. 406, 24 N.W. 121 (Campbell, J.); Com. v. Barry, 124 Mass. 325; Lewer v. Com., 15 Serg. & R. 93; State v. Watson, 41 N.H. 533; State v. Humphrey, 32 Vt. 569; Miller v. Com., 78 Ky. 15; Welsh v. People, 17 Ill. 339; People v. McDonald, 43 N.Y. 63; Smith v. People, 53 N.Y. 111; Justices, etc., v. Henderson, 90 N.Y. 12; State v. Vickery, 19 Tex. 326.

What passed between the parties at the time the possession of the property was given to Devore and his conspirators? Welborn testified--and his testimony upon this point was uncontradicted--that, upon the papers being placed in escrow "Williams wanted the property" (meaning the mules, etc.); that he did not want to give it up, but "Williams seemed hurt," and said that "he had turned the papers over, and that he would hold the mules until they came back, and then we would...