People v. Shaw

• Decision Date: 17 June 1885
• Court: Michigan Supreme Court
• Parties: PEOPLE v. SHAW.

24 N.W. 121

57 Mich. 403

PEOPLE v. SHAW.

Supreme Court of Michigan

June 17, 1885

Error to Eaton.

Moses Taggart, for the People.

Frank A. Dean, for defendants and appellants.

CAMPBELL J.

Respondents were convicted of larceny from James Brown of $80 in money which was accomplished by means of legerdemain with marked cards. The only substantial question before us, worth noticing, is whether the fraudulent transaction, whereby the victim was deprived of his money, came within the definition of that offense. Although he was taken in while trying to aid in performing a sharp trick himself, yet this may not destroy the public wrong if one existed. Shaw and Jones were confederates in the fraud. Shaw had introduced himself to Brown as a traveler for a tea-dealing firm in Cincinnati, and told him that one of the means used for getting custom in a new place was offering purchasers a chance, by drawing cards to get 50 pounds free, in addition to the purchase, if they drew the winning card. In order to carry out the scheme, he wanted Brown to accompany him, and showed him how to draw the lucky card, by a little dot on the back. While they were practicing, and Brown succeeded each time in drawing the card, Jones came up, appearing to be a stranger and inquired what they were doing, and Shaw told him he would show him, and gave him the same explanation as to the mode of selling tea, but did not tell him about the marked cards. Shaw, after some talk, said that Brown could draw the 50-pound card. Jones offered to bet $100 that he could not and held out to Shaw what seemed to be a roll of bills. Shaw said he had not the money, but had a $300 check. Jones said he did not want the check; he wanted money. Shaw asked Brown if he had it. Brown said he had not $100, but had $80. Brown, at Shaw's request, handed him the $80, and Shaw whispered to him to draw the marked card. He drew it, and it was a blank, and Shaw at once handed the money to Jones.

There were some subsequent performances which indicated the conspiracy between the respondents, but the larceny was charged on these facts, and their purpose. The court below refused to charge the jury that they did not make out larceny. No other part of the general charge is material, as it all rested on an explanation of the principles involved in holding that it might be larceny if done with the intent to steal. Brown testified that he expected the money to be handed back, and that Shaw would infallibly win. The court in substance, told the jury that if money is handed over to cover a wager, understanding and expecting that it will not be delivered until won, or honestly won, there is a condition that it shall not be otherwise delivered, and if the wager is fraudulent, and the whole is a swindle, the law holds the condition is not complied...