Kent v. State

• Decision Date: 11 November 1941
• Docket Number: 29116.
• Citation: 17 S.E.2d 301,66 Ga.App. 147
• Parties: KENT v. STATE
• Court: Georgia Court of Appeals

17 S.E.2d 301

66 Ga.App. 147

KENT v. STATE

No. 29116.

Court of Appeals of Georgia, Division No. 1.

November 11, 1941

Jas H. Dodgen, of Atlanta, for plaintiff in

error.

John A. Boykin, Sol. Gen., Bond Almand, Sol., Durwood T. Pye, and Daniel Duke, all of Atlanta, for defendant in error.

MacINTYRE Judge.

T. A Kent was convicted in the criminal court of Fulton County of the larceny of $50, the property of Sidney Joffre. The judge overruled the certiorari, and the defendant excepted.

The evidence disclosed that the defendant went to Joffre and asked him to cash a check for $75. The check appeared to have been given to the defendant by the Corbine Company, for labor performed. Joffre told Kent that he did not have enough money to cash the $75 check, but would advance him $50 on it and give him the balance of the money after the bank opened on Monday morning. The check was presented to the bank and according to Joffre, the bank did not cash it because such checks required two signatures and, further, because there were not sufficient funds to pay the check.

Our Code, § 26-2602, defines larceny as "The wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same." To constitute larceny there must be a taking against the will of the owner, which is the essence of the crime of larceny. 11 Cox C.C. 193, 196; 32 Am.Jur. 908, 919 §§ 23, 30; Watson v. State, 6 Ga.App. 801, 65 S.E 813; Williams v. State, 55 Ga. 391, 395. The defendant contends that he was wrongfully convicted under the evidence. It seems to us that the question here is whether or not the owner of the property in question intended to part with his title to the money at the time he gave the defendant the $50. If he did, the defendant cannot be convicted of larceny. If the property in the money is passed, not conditionally, but absolutely, then at common law a prosecution for larceny must fail. 2 Wharton's Criminal Law, 1520, § 1208, 32 Am.Jur. 918, § 30. "The rule is that 'if one, meaning to steal another's goods, fraudulently prevails on the latter to deliver them to him, under the understanding that the property in them is to pass, he commits neither larceny, nor any other crime, by the taking, unless the transaction amounts to an indictable cheat. But if, with the like intent, he fraudulently gets leave to take the possession only, and takes and converts the whole to himself, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent, which he fraudulently obtained, covers no more than the possession.' 1 Bish.Crim.Law, § 583, and authorities there cited." Harris v. State, 81 Ga. 758, 7 S.E. 689, 690, 12 Am.St.Rep. 355. It is true that one act may constitute two separate crimes (Martin v. State, supra), and in reason, aside from technical rule, if one to steal an article procures by fraudulent devices...