Ex parte Economu

• Decision Date: 10 April 1924
• Docket Number: 6 Div. 113.
• Citation: 211 Ala. 237,100 So. 85
• Parties: EX PARTE ECONOMU.
• Court: Alabama Supreme Court

100 So. 85

211 Ala. 237

EX PARTE ECONOMU.

6 Div. 113.

Supreme Court of Alabama

April 10, 1924

Rehearing Denied May 15, 1924.

Certiorari to Court of Appeals.

Petition of George Economu for certiorari to the Court of Appeals to review and revise the judgment and decision of said court in the case of Economu v. State, 100 So. 85. Writ denied.

Black Harris & Foster and Nesmith & Garrison, all of Birmingham for petitioner.

Harwell G. Davis, Atty. Gen., opposed.

SOMERVILLE J.

The first count of the indictment charged the defendant with the larceny of $3,600 of money, and the third count charged him with the larceny of $3,700 par value of United States government bonds.

The evidence for the state tended to show that the defendant and two other men went to the store of Sanchez, the prosecutor and there sold and delivered to him 37 $100 bonds of the description charged, and received from him $3,600 in money in payment therefor; that the package of bonds was thereafter-at the same time and place-handled by defendant and one of the others severally; and that when they were about to go Sanchez called for the bonds, and one of the three handed him a package out of a grip, which when opened later contained nothing but worthless paper.

The trial judge instructed the jury that they could not convict the defendant under both counts, and that his offense, if guilty at all, would depend on whether the transaction was completed or not; that is, whether there was a delivery of the money to the defendant, or one of his associates, and a delivery of the bonds to Sanchez.

The jury convicted the defendant under the third count-for larceny of the bonds, and on appeal the Court of Appeals held that under the evidence the conviction was proper, and that the general affirmative charge for defendant was properly refused.

Defendant invokes this well-settled principle of law, viz.:

"If a person, with a preconceived design to appropriate property to his own use, obtains possession of it by means of fraud or trickery, the taking under such circumstances amounts to larceny, because in such cases the fraud vitiates the transaction, and the owner is still deemed to retain a constructive possession of the property, and the conversion of it is a sufficient trespass, or, as is sometimes said, the fraud or trick practiced on the owner is equivalent to a trespass." 17 R. C. L. 13, § 13, citing Frazier v State, 85 Ala. 17, 4 So. 691, 7 Am. St. Rep. 21; People v. Miller, 169 N.Y. 339, 62 N.E. 418, 88 Am. St. Rep. 546; Grunson v. State, 89 Ind. 533, 46 Am. Rep. 178, and many other cases.

The bearing of that principle, however, is only upon the possession, where that is obtained by fraud. For-

"It is an established rule of the common law that, if the owner of goods alleged to have been stolen voluntarily parts with both the

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