State v. De Berry, 2612.

CourtSupreme Court of West Virginia
Citation84 S.E. 508,75 W.Va. 632
Docket Number2612.
Decision Date16 February 1915

Submitted January 27, 1915.

Syllabus by the Court.

An indictment for larceny may under section 19, chapter 145 serial section 5210, Code 1913, be supported by evidence showing embezzlement by defendant of the property alleged to have been stolen, and that the agency or service relied on related to but the single transaction of entrusting the property embezzled to defendant.

On the trial of one charged with the larceny or embezzlement of goods proof of actual or constructive possession of the goods by the one alleged in the indictment to be the owner thereof is sufficient.

If on the trial of one charged with larceny or embezzlement of goods, the jury are instructed to find a certain way, all elements necessary to constitute the offense must be included therein, and particularly the element of intent to steal or embezzle such goods.

Other instructions given and refused considered and disposed of on familiar rules and principles.

Additional Syllabus by Editorial Staff.

"Conversion" is an unauthorized assumption and exercise of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's right (citing Words and Phrases, First and Second Series, Conversion).

Error to Circuit Court, Cabell County.

P. J De Berry was convicted of larceny, and brings error. Reversed, and new trial awarded.

Jean F Smith and Doolittle, Copen & Davis, all of Huntington, for plaintiff in error.

A. A Lilly, Atty. Gen., and John B. Morrison and J. E. Brown, Asst. Attys. Gen., for the State.


The indictment on which defendant was found guilty, and by the judgment complained of adjudged to serve a term of two years imprisonment in the penitentiary, charges him with unlawfully and feloniously stealing, taking and carrying away, three rugs, of the value of thirty dollars, the goods, chattels and property of one B. B. Burns, against the peace and dignity of the State.

Our statute, section 19, chapter 145, serial section 5210, Code 1913, among other things, declares it to be larceny, for any agent, servant, etc., of any person to embezzle or fraudulently convert to his own use any effects or property of any other person which shall have come into his possession by virtue of his place or employment. In State v. Fraley, 71 W.Va. 100, 76 S.E. 134, 42 L.R.A. (N. S.) 498, we decided that an offense under this statute is sufficiently established by evidence showing that the agency or service related to but the single transaction of entrusting the property embezzled to defendant. And an indictment for larceny is supported by proof of the embezzlement of the property alleged to have been stolen. State v. McClung, 35 W.Va. 280, 13 S.E. 654; Pitsnogle v. Com., 91 Va. 808, 22 S.E. 351, 50 Am.St.Rep. 867; Shinn v. Com., 32 Grat. (Va.) 899.

To convict, the State relied on the evidence of Burns, to the effect that De Berry, a colored man, and a professional rug and carpet cleaner in the City of Huntington, had applied to him, the secretary and treasurer of certain corporations, for the job of cleaning some rugs in the offices of said companies, then in his charge, and that Burns had agreed with De Berry that he should get one of the rugs after 5 o'clock, P. M., of the same day, and clean and return it before office hours the next morning, and if his work should prove satisfactory he was then to get the other rugs and clean and return them, all for the price of three dollars. The State also showed by Burns and other witnesses, that about 5 o'clock that evening defendant got all three rugs from the offices of these companies, and with the assistance of the elevator boy took them down on the elevator to the ground floor, and out on the sidewalk at the entrance of the office building, where he left them, to go to a nearby stable kept by Womeldorff to get a transfer to haul them to his place of business, and where he also lived; that afterwards, the same evening, defendant offered to sell the rugs first to Womeldorff, then to a saloon keeper, and also to a druggist in the vicinity of the building where he had the rugs, but that neither of the offers was accepted, and the rugs were not sold, and that when arrested, defendant told the police officer where he had gotten the rugs and for what purpose, and that he was taking them home to clean them, and to return them to the owner the next morning as he had agreed.

Defendant in his own behalf swore that his agreement with Burns was to take all three rugs at the same time, and clean and return them the next morning for the one stipulated price of three dollars; and that after removing the rugs to the sidewalk, not being able to get a transfer he returned to the rugs on the sidewalk, and afterwards carried them one by one to Womeldorff's stable, and later in the evening returned to the stable and got one of the rugs on his shoulder and started up the alley towards his home or place of business, when he was immediately arrested by a policeman, to whom Womeldorff had given information of his suspicions that something was wrong with defendant's action, and was taken to police headquarters adjoining or near Womeldorff's stable, where the rugs were also taken, and left until they were claimed by Burns the following morning.

The evidence of the State and of De Berry shows conclusively that De Berry was quite drunk, so much so that he was scarcely able to walk straight, and De Berry swears that his proposals to sell the rugs were in jest, to use his own language, that he was "just kidding," and acting as a man in his...

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