Fitch v. State

• Decision Date: 28 December 1938
• Citation: 135 Fla. 361,185 So. 435
• Parties: FITCH v. STATE.
• Court: Florida Supreme Court

185 So. 435

135 Fla. 361

FITCH v. STATE.

Florida Supreme Court

December 28, 1938

Error to Circuit Court, Broward County; George C. Tedder, Judge.

Ira Fitch was convicted of grand larceny, and he brings error.

Affirmed.

COUNSEL

Robert J. Davis, of Fort Lauderdale, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for the State.

OPINION

BROWN Justice.

The plaintiff in error, Ira Fitch, was convicted of grand larceny, that is, the felonious taking and carrying away of $197 in United States currency, the property of C. W Gilbert. The accused was a janitor and night watchman in Gilbert's bar, known as 'The Palace Bar,' in Fort Lauderdale. It is contended, first, that the evidence was not sufficient to show the defendant's guilt of any offense and, secondly, that if it showed any offense whatever, it was the offense of embezzlement rather than larceny.

The Palace Bar, of which Gilbert was the proprietor, was found by police officers early one morning to have been robbed the night before. Money to the amount of $197, which Gilbert had checked over the night before with the defendant and in defendant's presence and left in the money drawer of a cash register, had been taken. Slot machines were lying on the floor, but unopened. Defendant Fitch was found by the police in a storage room, part of which was used as an ice chest, the door of which had been latched from the outside. He claimed that he had been locked in there by the person or persons (he first said there were two men) who had robbed the cash drawer. He later said that 'Micky' Wolf had taken the money and locked him up, and had threatened to come back and kill Fitch if he ever told on him. Gilbert said that when he arrived on the scene, Fitch said: 'Get Micky Wolf and we will talk.' Wolf, who had a bad criminal record, was located in New York and arrested. Wolf testified on the trial of the case against defendant Fitch that Fitch had initiated and committed the larceny and had gotten Wolf who had been living for a time in Fitch's home, and who arrived at the store after Fitch had taken the money and thrown down the Slot Machines to help him by locking him up, and agreed to pay Wolf $46 which he owed him out of the money taken, and that after Fitch had taken the money he gave Wolf the $46 and Wolf locked Fitch in the Storage room at Fitch's request, in accordance with their agreement. Defendant Fitch denied this, and testified that Wolf had secured admittance into the barroom by a ruse and had locked defendant in the storage room, and that Wolf was the one who took the money; that if he, Fitch, had ever intended to rob the cash drawer he would not have selected a night when there was only $197 in it, because Gilbert frequently left from $700 to $1200 in there over night, when the money in the slot machines was included. Wolf testified that he had pleaded guilty to aiding and abetting Fitch in the commission of the larceny and had been sentenced to two years in the penitentiary, but that Fitch was the principal actor and was the one who took the money. No money was found by the officers in Fitch's possession. In spite of Wolf's bad record as a burglar, which he freely admitted, the jury saw fit to believe him, and found Fitch guilty as charged. The trial judge denied motion for new trial. The jury had the witnesses before them and saw their demeanor on the stand. When there is a conflict in the testimony, the jury, who are the judges of the credibility of witnesses, must solve the problem, and where a case turns upon that question an appellate court is rarely, if ever, authorized to disturb the jury's finding. We do not think we should do so in this case, which we have briefly outlined above, omitting some details, such as the evidence of defendant's intimacy with Wolf, which may have influenced the jury to find as they did.

Nor can we accede to the contention that the state's evidence in this case, even if believed, would only authorize and support a prosecution for embezzlement. As we understand this evidence, it tends strongly to show that the defendant, in his capacity as janitor and night watchman, merely had custody of the property in the store, including the money which was taken. He had no duties to perform with reference to said money other than those of a bare custodian. The general rule in most jurisdictions is that one who merely has the bare custody of money or personal property, the legal possession remaining in the owner, may be guilty of larceny, if he had a felonious intent either at the time he acquired such custody, or afterwards, if, with such felonious intent, he taken it and converts it to his own use, regardless of the fact that the custody may have been lawfully acquired; that in such case he need not have had the felonious intent when he acquired the custody. See 37 C.J. 776; Holbrook v. State, 107 Ala. 154, 18 So. 109, 54 Am.St.Rep. 65, and authorities cited. Manifestly, if the owner in this case had known that this defendant was going to steal the property or convert it to his own use, he certainly would not have left him in custody of the premises and given him the key to the place. Indeed, it does not appear that Fitch had any right to take the money out of the cash drawer for any purpose, except perhaps to do so if necessary to preserve it for Gilbert, the owner. The evidence shows that the money was left in the cash drawer as had been Gilbert's custom, for the bar tender's use the following day in making change.

Larceny at common law may be defined as the felonious taking and carrying away of the personal property of another, which the trespasser knows to belong to another, without the owner's consent, and with the intent permanently to deprive the owner of his property therein, and convert it to the use of the taker or of some person other than the owner. See Driggers v. State, 96 Fla. 232, 118 So. 20; 36 C.J. 734; 17 R.C.L. 4. Our statute does not attempt to define it. See 7223, C.G.L. The asportation may be completed by even the slightest removal of the thing stolen from its original position. Driggers v. State, supra.

The general rule is that one who is in lawful possession of the goods or the money of another cannot commit larceny by feloniously converting them to his own use for the reason that larceny, being a criminal trespass upon the right of possession, cannot be committed by one who, being invested with that right, is consequently incapable of trespassing upon it. 36 C.J. 774. However, as has frequently been held in this State, a person in the possession of the goods of another may nevertheless become guilty of larceny at common law by converting them to his own use, if the felonious intent so to convert them existed at the time he acquired the possession, for the felonious intent made his acquirement of the possession unlawful and the subsequent conversion is consequently a trespass upon the rights of the owner. As our own decisions usually express it, one who obtains possession of personal property by a trick, device or fraud with intent to appropriate the property to his own use, the owner or custodian intending to part with possession only, commits larceny when he subsequently appropriates it. Finlayson v. State, 46 Fla. 81, 35 So. 203; Wilson v. State, 47 Fla. 118, 36 So. 580; Synes v. State, 78 Fla. 167, 82 So. 778.

In Finlayson v. State, supra, it was held that a bailee, who has lawful possession, cannot commit larceny, provided his posession was lawfully obtained and without any intent to appropriate the property to his own use. In that case, the plaintiff was convicted of the crime of larceny, and the judgment was affirmed. In that case this court said:

'There was evidence tending to show that the accused fraudulently induced two negroes to deposit their money with him for safe-keeping over night, intending from the beginning to appropriate it to his own use. It cannot be said, therefore, that the owners 'consented' to part with the possession of their money. There was no conventio mentium, the one party intending only to part with the bare possession, the other intending to acquire the property in the thing itself; the consent was not as broad as the taking. The fraud vitiated whatever right might otherwise have been acquired by virtue of the apparent voluntary parting with the possession by those rightfully entitled thereto. Such act was at the common law larceny, and no statute was needed to make it a crime; nor does it come within our embezzlement act. The prime object of this statute is to make criminal certain acts that do not come within the common-law definition of larceny, not those acts that were theretofore punishable as such. Taking this view of the object of the statute, we will not hold an act theretofore larcenous to be embraced within its provisions, in the absence of clear words to that effect. Such is not the case before us. The authorities sustaining the charge are abundant.' (Citing authorities.)

It will be observed that the opinion in that case says that this court will not hold an act which constituted larceny at common law to be embraced within the provisions of the embezzlement statute in the absence of clear words to that effect.

In the case of Jarvis v. State, 73 Fla. 652, 74 So. 796, it was held that one who obtains the possession of property by trick, device or fraud, with the intent to appropriate the same to his own use, the owner intending to part with the possession only, commits larceny when he subsequently appropriates it; that 'the consent of the owner in surrendering possession of the property must be as broad as the taking.' To like effect see Murray v. State, 93 Fla. 706, 112 So. 575.

But there is a strong...