John v. United States, 6398.
| Decision Date | 17 June 1935 |
| Docket Number | No. 6398.,6398. |
| Citation | 65 App. DC 11,79 F.2d 136 |
| Parties | JOHN v. UNITED STATES. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robert I. Miller, of Washington, D. C., for appellant.
Leslie C. Garnett and Irvin Goldstein, both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
In this case the appellant was convicted in the lower court of the crime of grand larceny. The case was tried to the jury and the present record contains a copy of all the testimony submitted at the trial. At the close of the evidence the defendant filed a motion for a directed verdict, which was overruled by the court. The jury thereupon returned a verdict of guilty, and the judgment and sentence of the court were based thereon. The present appeal was then taken.
There is but one assignment of error relied upon by appellant, namely, "the action of the trial court in denying the motion of the appellant for the direction of the verdict of not guilty."
At the trial the prosecuting witness, Lena Ross, testified that she resided in the District of Columbia; that prior to October 13, 1932, she was the owner of certain real estate located within the District consisting of a store and several apartments above it; that prior to October 13, 1932, she sold the property, but thereafter she was desirous of repurchasing it from the man to whom she had sold it; but he was not willing to resell it to her; that she then consulted the defendant, who was a gypsy fortune teller whom she had known for about fifteen years, with reference to this matter, and that the defendant told her that she could work magic and compel the man to sell the property back to her; that in order to accomplish this it would be necessary that witness give to the defendant $700 for the purpose of working magic with the money, and that the defendant would thereafter return the money to her; that the money was to be given by the witness only for that purpose and no other purpose. The witness gave to the defendant $700 of her own money for that purpose at the defendant's residence within the District; that several days later defendant told witness that $700 was not sufficient with which to make the magic, and that she would need more money; that witness withdrew from the bank $2,300 more and gave the same to the defendant at defendant's residence within the District on October 19, 1932; that this money was delivered by her to the defendant only for the purpose of making magic to induce the owner of the real estate to sell it to her; that it was to remain intact and was to be returned intact; that several days later she went to the home of the defendant and the house was closed; that she did not again see defendant until her arrest a long time afterwards; that the defendant had never returned the money to her.
The defendant, Anna John, testified that she had never received either the $700 or the $2,300 of which the prosecuting witness had testified. The defendant testified that she was acquainted with the prosecuting witness and had engaged with her at times in betting upon horse races and playing the numbers, but had not received money from her for any other purpose.
Evidence was introduced to prove that defendant bore a good reputation for honesty and integrity.
It is contended by the appellant that the prosecuting witness, according to her own statement, voluntarily parted with the possession of her money; that consequently there was no evidence of trespass to her possession; and that if any crime was committed it was not the crime of larceny, but was embezzlement or obtaining money by false pretenses.
We think that this argument cannot be sustained.
"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...
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