Dukes v. State

• Decision Date: 30 May 1938
• Docket Number: 39106
• Citation: 181 So. 518,181 Miss. 704
• Court: Mississippi Supreme Court
• Parties: DUKES v. STATE

181 So. 518

181 Miss. 704

DUKES v. STATE

No. 39106

Supreme Court of Mississippi

May 30, 1938

Division B

1 LARCENY.

Where the possession of personalty is fraudulently obtained from an owner who does not intend that ownership or legal title should pass, and person who obtains possession does so in pursuance of intent to deprive owner of personalty, the offense is "larceny."

2 LARCENY.

Where possession of personalty is obtained from an owner who intends that possession and ownership should pass to other party or that ownership should pass to a third person, the party who obtains possession is not guilty of "larceny," even if title is reserved until balance of purchase money should be paid, since such a reservation of title is but security for balance.

3 LARCENY.

A person obtaining possession of personalty from an owner who intends that possession and ownership should pass is not guilty of "larceny," even if transfer of ownership was obtained by fraud, however flagrant, and transfer would not have been made except for fraud, since a transfer obtained by fraud is not ipso facto void but voidable, and until avoided by appropriate affirmative action by transferrer, transfer stands as if there had been no fraud.

HON. D. M. ANDERSON, Judge.

APPEAL from the circuit court of Scott county, HON. D. M. ANDERSON, Judge.

Walter Dukes was convicted of larceny, and he appeals. Reversed and appellant discharged.

Reversed and appellant discharged.

Mize & Mize, of Forest, and Mize, Thompson, & Mize, of Gulfport, for appellant.

There was no fraud perpetrated and there was no felonious taking of the automobile because the automobile was taken in the presence of the Chevrolet Company and with their consent and approval and all of the necessary papers for the transfer of the possession were made out before the car was delivered and larceny cannot lie on these facts.

Foster v. State, 123 Miss. 721, 86 So. 513; Lawson v. State, 161 Miss. 719, 138 So. 361; Darris v. State, 159 Miss. 586, 132 So. 565.

The only thing that appellant did which was not proper and upon which he was evidently convicted of larceny was that he gave a check for $ 125 as the down payment on the automobile and it was shown that this money was to be paid back by Mr. and Mrs. Blevins upon their receiving their compensation. This check was not good and it is the only criminal act committed by the appellant. The evidence shows without dispute that the Chevrolet Company did not give the appellant ten days written notice of the dishonor of the check as they are required to do.

Section 924, Code of 1930; Cooper v. State, 127 So. 684, 157 Miss. 1; Johnson v. State, 132 So. 330, 159 Miss. 703; State v. Johnson, 141 So. 333, 163 Miss. 521.

It is an elementary rule of law that before a conviction for larceny can stand that there must be an asportation. In this case the possession of the automobile was given to Mr. and Mrs. Blevins who traded their old Ford car on the new Chevrolet and there was no asportation shown on the part of Dukes, the appellant, and it is fundamental and has been held many times that asportation has to be shown and proven.

McIntosh v. State, 2 Miss. 673; Williams v. State, 63 Miss. 58; McKinsey v. State, 111 Miss. 780, 72 So. 198.

We submit that the court below erred in refusing to instruct the jury to return a verdict of not guilty for Walter Dukes.

Courtney v. State, 164 So. 227; Akroyd v. State, 107 Miss. 51, 64 So. 936.

The law requires that when a false cheek is uttered that no prosecution shall be commenced until ten days' written notice is given to the maker of the check. The evidence is without dispute that this notice was not given.

Sec. 924, Code of 1930; Cooper v. State, 127 So. 684, 157 Miss. 1; Johnson v. State, 132 So. 330, 159 Miss. 703; State v. Johnson, 141 So. 333, 163 Miss. 521.

The court erred in giving the appellant a penitentiary sentence. We submit that in this case appellant was not guilty of grand larceny and if he were guilty of anything it was either false pretenses or simple trespass, both of which offenses are misdemeanors for which a penitentiary sentence cannot be given.

Sec. 923, Code of 1930; Russell v. State, 169 So. 654; Darris v. State, 159 Miss. 586, 132 So. 565; Pitts v. State, 115 Miss. 189, 76 So. 140.

We submit that it would be a miscarriage of justice and right to allow this conviction to stand and that the appellant is not guilty of the charge laid in the indictment and is not guilty of any crime and that he should be discharged by this court.

Sec. 592, Code of 1930; Conway v. State, 171 So. 16; Jolly v. State, 174 So. 244.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

In Akroyd v. State, 107 Miss. 51, 64 So. 936, it was held that if 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 does, in pursuance to such intent, deprive the owner of the property, larceny is thereby committed.

Watson v. State, 36 Miss. 593; 25 Cyc. 40; Hanna v. State, 168 Miss. 352, 151 So. 370.

The testimony for the defendants makes it an issue for the jury as to whether or not Dukes told the seller that the cheek was worthless and that it would have to be held until money could be placed in the bank to cover it. The state witnesses...