Miller v. Commonwealth
| Decision Date | 26 June 1879 |
| Citation | 78 Ky. 15 |
| Parties | Miller & Smith v. The Commonwealth. |
| Court | Kentucky Court of Appeals |
1. If by trick or artifice the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means is a larceny; but if the owner part with the possession and right of property also, the offense will not be larceny, but obtaining goods by false pretenses.
2. Upon the question of conspiracy the proof is insufficient.
3. The Court improperly allowed evidence that other persons than the prosecutor had been similarly cheated in appellants faro bank.
4. The declarations of one conspirator are only admissible against the others when made before the object of the conspiracy is accomplished.
APPEAL FROM JEFFERSON CIRCUIT COURT.
W LINDSAY AND W. R. KINNEY FOR APPELLANT.
1. The Court erred in permitting evidence that other persons than Lyons had been roped into appellants' faro bank.
2. The third instruction given for appellee is error.
B. W DUKE FOR APPELLEE.
1. When the mere possession of goods is obtained animo urandi, and the title not parted with by the owner, the fraudulent detention is larceny, not obtaining goods by false pretenses. (2 Wharton, 1848; 53 N.Y. 111; 5 Rich., 237; 24 Gratt., 563; 6 Miss. 593; 1 Porter, 118; 3 Heisk. S. C.; 43 Ill. 397.)
2. The evidence that other parties were " roped in" and swindled in appellants' bank was competent in this class of cases.
The indictment accused the appellants of the crime of grand larceny, committed in manner and form as follows, to-wit: " The said Charles Miller and A. P. Smith, in the said county of Jefferson, on the 1st day of February, 1879, and before the finding of this indictment, feloniously did combine, confederate, and conspire to, and did feloniously steal, take, and carry away thirty-nine dollars and fifty cents in money, lawful currency of the United States, the property of Alfred Lyons, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the Commonwealth of Kentucky."
Without demurring to the indictment, the appellants consented that a formal arraignment might be dispensed with, and pleaded not guilty. They were found guilty and sentenced to be imprisoned in the penitentiary for two years, and prosecute this appeal to obtain a reversal of that judgment.
The prosecutor, Lyons, testified that he was drunk, in a saloon in Fifth street, in the city of Louisville; that he fell into conversation with the prisoner, A. P. Smith; that he and Smith left the saloon together, and, without witness knowing where he was going, Smith took him where the prisoner, Miller, was dealing " faro." That Smith asked him (witness) for some money to bet on the game; that he gave Smith a ten dollar note, which he lost. That Smith then took from his pocket, without his consent, more money, which was bet and lost in the same way. That he knew nothing of the game, never having seen it played but once before; that he could not tell when money was lost or when it was won.
Richardson testified that he was in the saloon in Fifth street when the prosecutor came in. That the prosecutor was drinking, and treating everybody around there, and had his money out. That the prosecutor asked some one to figure some for him, and was referred to Smith as a person capable of doing the figuring. That he and Smith figured awhile and then left the saloon and went to the faro bank kept by Miller. Witness followed them into the room where the bank was, and the prosecutor gave Smith a ten dollar note at three different times; but he did not see Smith take any money from the prosecutor's pocket. That Smith bet and lost all the money he got from the prosecutor, and the latter then left the room.
Richardson also stated that he knew the character of the game dealt by Miller, and that both he and Smith were partners of Miller; that the game was what is called a " brace" game, and was so conducted that it was impossible for the better to win. That Miller and his accomplices knew exactly how to bet money so as to win or lose; that Smith knew which were to be the winning cards. That he (witness) and Smith were " ropers" for Miller's game, and went out and induced whoever they could to go into the bank and bet, or let them bet, his money. They were not looking for Lyons; but he was brought in under the general understanding, and his money was won and afterwards divided out between Miller, Smith, witness, and one Forst, according to the share agreed upon between themselves.
He also stated, over the objection of the prisoners' counsel, that he received his share from Forst some time after the money was won, and that Forst told him it was his share of the money won from Lyons, and that other persons had been roped into Miller's bank by the same parties, and defrauded of their money in the same way that Lyons was, and the money divided out, he, witness, receiving his share.
The Court instructed the jury, in substance, that if the prisoners feloniously conspired together to cheat Lyons out of his money, and, in pursuance of such conspiracy, and for the purpose of so cheating him, did set up a game at which Lyons' money was to be bet, and that it was understood between them that the money was to be bet by Smith in such way that it would be certainly won by Miller, and that it was so bet and won in accordance with the understanding between them, they were guilty as charged.
The rule as stated by Russell (2 Russell, 29) and approved by this Court is, that if, by trick or artifice, the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner part with not only the possession of the goods but the right of property in them also, the offense of the party obtaining them will not be larceny, but the offense of obtaining goods by false pretenses.
Applying this test to the case in hand, the first inquiry is, did the prosecutor part with his right of property in the bills handed to Smith to be bet on the game being dealt by Miller.
It is contended that he did, first, because the statute declares that money advanced or loaned at the time of betting, to be used in betting, cannot be recovered back, and second, that when the money was lost, the...
To continue reading
Request your trial
-
Lilly v. Gladden
...with the possession is not sufficient. State v. Anderson, 47 Iowa 142; Grunson v. State, 89 Ind. 533, 46 Am.Rep. 178; Miller v. Commonwealth, 78 Ky. 15, 39 Am.Rep. 194; People v. Rae, 66 Cal. 423, 6 P. 1, 56 Am.Rep. 102. In these and in many other cases the courts hold that when by means of......
-
Goodin v. Commonwealth
...4; Means v. Com., 238 Ky. 366, 38 S.W.2d 193, headnote 6; Privett v. Com., 233 Ky. 471, 26 S.W.2d 3, headnote 3; and Miller v. Com., 78 Ky. 15, 39 Am. Rep. 194, or its evidence need only be sufficient to corroborate testimony of the Davises upon some fact that tends to connect Goodin with t......
-
Canada v. Commonwealth
... ... On the joint trial nine of the defendants were ... convicted; seven of them prosecuted an appeal. We held that ... evidence was properly admitted by the trial court to ... establish a conspiracy by the defendants to commit the crime, ... and the judgment of conviction was affirmed. Miller v ... Com., 78 Ky. 15, 39 Am. Rep. 194, and Morgan v ... Com., 188 Ky. 458, 222 S.W. 940; Skillian v ... Com., 206 Ky. 586, 268 S.W. 299; Owens v. Com., ... 181 Ky. 378, 205 S.W. 398. See the more recent case of ... Fletcher v. Com., supra ... In Ray ... v. Com., supra, ... ...
-
Jones v. State
... ... People, 47 Ill. 152, ... 158, 95 Am. Dec. 474; In re. Rowe U. S. 77 F. 161, 165, 23 C ... C. A. 103; Polk v. State, 36 Ark. 117, 126; ... Miller v. Commonwealth, 78 Ky. 15, 22, 39 Am. Rep ... 194; Barrara v. State, 42 Texas 260, 263; ... Moynahan v. People, 167 P. 1175, 1176). There was no ... ...