Finkelstein v. State

• Decision Date: 13 October 1898
• Citation: 31 S.E. 589,105 Ga. 617
• Parties: FINKELSTEIN. v. STATE.
• Court: Georgia Supreme Court

31 S.E. 589

105 Ga. 617

FINKELSTEIN.

v.STATE.

Supreme Court of Georgia.

Oct. 13, 1898.

Larceny—Evidence—New Trial.

1. Where a purchaser of goods delivers to the seller a bill of money exceeding in amount the price of the goods, intending that the seller shall return the proper change, and the latter accepts the bill for this purpose, but, instead of returning the correct change, appropriates to his own use, fraudulently and with intent to steal the same, the bill so received, he is guilty of simple larceny.

2. Where a verdict is not without evidence to support it, this court will not interfere with the discretion of the trial judge in overruling the general grounds in a motion for a new trial.

Little and Fish, JJ., dissenting.

(Syllabus by the Court.)

Error from criminal court of Atlanta; J. D. Berry, Judge.

Mrs. I. Finkelsteln was convicted of larceny, and brings error. Affirmed.

Goodwin, Westmoreland & Halleman, for plaintiff in error.

Jas. F. O'Neill, for the State.

LEWIS, J. The defendant, by accusation in the criminal court of Atlanta, was charged with the offense of simple larceny, in that she "did wrongfully and fraudulently take, steal, and carry away, with intent then and there to steal the same, eight dollars and ten cents, in money, the property of J. C. Northcutt, and of the value of eight dollars and ten cents." The testimony for the state, in brief, is that Northcutt went into the store of Mrs. Finkelstein, and bought of her goods to the amount of $1.90. He handed her a $10 bill, from which to take payment. He claimed that she carried this bill to another part of the store, and placed the same in the money drawer, and, returning, handed him $3.10 in change. He reminded her that the bill he handed her was $10, which was denied, she contending that it was only a $5 bill; whereupon she took from her stocking a $5 bill, and exhibited it to him as the money she had received from him. In the meantime her husband came, who, learning of the accusation against his wife, seized the prosecutor, and desired to call in a policeman and to have the store searched, to see if the $10 bill was therein. An altercation and fight ensued between the husband and Northcutt. No search was made. Defendant, in her statement, denied having ever received a $10 bill; claiming that it was a $5 bill paid her, and she placed the same in her stocking when it was handed her. There was some conflict in the evidence as to whether or not Northcutt was under the influence of whisky at the time. There was proof of defendant's good character by several witnesses. The defendant was found guilty, whereupon she filed a motion for a new trial, which was overruled, and she excepted.

1. The only question of law made by this record is whether or not the testimony on which the conviction rests makes a case of simple larceny. Section 155 of the Penal Code declares that "simple theft, or larceny, is the wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same." It is insisted by counsel for plaintiff in error that there was an entire absence of any fraud or deception on the part of the defendant in giving or receiving money, and that in the absence of such fraud there was no larceny, —certainly no simple larceny. This position is based upon the idea that to constitute theft the taking must be fraudulent, and that, if the property lawfully comes into the possession of the accused, under no circumstances can its subse-quent appropriation by her be considered larceny. The bare fact of putting one's property in the possession of another does not necessarily deprive the owner of its legal possession. Although personal property may be placed by the owner in the hands of another, yet, if its custody is thus given upon condition that there should be at once returned for it its equivalent in value, neither the title to the property nor the right to its possession becomes complete until this condition has been complied with, and the constructive possession as well as the title remains in the owner. Where one, therefore, retains the goods thus received by him, and carries them away, with intent to steal the same, or any part thereof, before he has acquired any right of title or possession, he is guilty of theft; and the definition of simple larceny above quoted from the Code is broad and comprehensive enough to include such a theft in the general class of simple larceny. It is not denied that such a taking and appropriation of the personal goods of another constitute some crime, but it was insisted in the argument for plaintiff in error that the crime was that of a cheat and swindler. There is a broad distinction between this case and those in which an indictment for cheat would lie, based upon the fraudulent conduct of one in depriving another of his property. In the latter class of cases it is the intention of the owner to pass the title. There is no larceny. There is a want of an intent to steal, which, of course, is an essential ingredient of larceny. The title passes, and, while one may be guilty of such fraud in acquiring the title as would subject him to punishment as a cheat, yet he cannot be said to intend to steal that which the owner intended him to have. In the case we are now considering there was evidently no intent that the title to the bill handed by its owner to the defendant should ever pass, except upon condition that the owner should receive back the proper change as agreed upon in the contract of sale touching the articles purchased. Therefore, when the defendant carried it away, with intent to appropriate it to her own use without complying with this condition, she was guilty of stealing what did not belong to her, and to which she even had not acquired a perfect right of possession. Neither, under the facts of this case, could the charge of larceny after trust be maintained, under any definition of that offense in the Penal Code. If the offense committed falls within any of the provisions of our law on this subject, it must be Included in section 191 or 194 of the Penal Code. The former section relates to factors, commission merchants, etc., "or any other bailee, with whom any money, or any other thing of value, may be entrusted or deposited." In no legal sense was this defendant the bailee of the owner of this money. There was really nothing intrusted to or deposited with her. It was a cash transaction. While with the consent of the owner, she received his money, yet it was contemplated that the two acts—one of receiving, and the other of paying back something in lieu—should be simultaneous. There was no delegated trust either to keep the money for any period of time, or to dispose of or use it for the benefit of either of the parties. In the case of Sanders v. State, 86 Ga. 717, 12 S. E. 1058, It was held that the words "or any other bailee, " in the section cited, should be construed to mean other bailees of like character as those named just above; that is, bailees ejusdem generis. In Cody v. State, 100 Ga. 105, 28 S. E. 106, that decision is criticised; and Chief Justice Simmons, in the opinion delivered by him in the case of Weaver v. Carter, 101 Ga. 213, 28 S. E. 869, said that while Cody v. State virtually overruled the decision in 86 Ga. and 12 S. E., yet it was without in any way or manner reviewing the same as prescribed by the statute. But, so far as the question involved in this case is concerned, It matters not which of the two decisions cited presents the correct rule upon the subject, —neither is in conflict with our ruling in this case. For in Cody v. State there was evidently a delegated trust There was not simply an exchange of property, involving acts by each party which were intended to be simultaneous, but...