State v. Buck

• Decision Date: 31 January 1905
• Citation: 186 Mo. 15,84 S.W. 951
• Parties: STATE v. BUCK.
• Court: Missouri Supreme Court

84 S.W. 951

186 Mo. 15

STATE v. BUCK.

Supreme Court of Missouri, Division No. 2.

January 31, 1905.

LARCENY — FALSE PRETENSES — CONVERSION — DELIVERY OF POSSESSION — INTENT.

1. Prosecutor applied to defendant for a position, who introduced him to A. to arrange the terms of his employment. A. required prosecutor to deposit $50 as a guaranty of his honesty, to be returned on termination of his employment; but defendant on the next day told prosecutor that, as $400 or $500 would pass through prosecutor's hands every day, he must deposit $150 more, which he did. Defendant pretended to give him a receipt for this money, which, instead, was a bill of sale for a one-half interest in the rooming-house business conducted by the concern. Prosecutor worked for $15 per week for three or four weeks, during which time he drew $15.75, and, becoming dissatisfied, demanded the return of his money, which defendant refused to pay him, and then prosecutor discovered that his receipt therefor was a bill of sale. Held that, prosecutor never having intended to part with the title to the money so deposited, defendant, having acquired the same by fraud, with the felonious intent to convert it to his own use, was guilty of larceny, and not false pretenses.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

W. A. Buck was convicted of larceny, and he appeals. Affirmed.

John I. Martin, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

BURGESS, P. J.

At the December term, 1904, of the circuit court of the city of St. Louis, there was filed in the office of the clerk of said court an information, by the circuit attorney of said city, charging the defendant, Buck, with having feloniously stolen from one Patrick J. Keane, at said city, the sum of $200. Thereafter defendant was put upon trial and found guilty, and his punishment fixed at imprisonment in the penitentiary for three years. He appeals.

Patrick J. Keane, the prosecuting witness, lived at 3161a Clerk avenue, St. Louis. He was a young man about 22 years old, and prior to March, 1903, was a clerk at the Laclede Gaslight Company, and became acquainted with defendant, Buck, on the 10th day of March, 1903, through an advertisement in the St. Louis Republic. It appears that Buck was engaged in the brokerage business under the name of the Atlas Brokerage Company, doing a business of buying and selling saloons, stores, dwellings, flats, and apartment houses. He had placed an advertisement of some character in the Republic, and it was in this way that Keane became acquainted with him. On the morning of the 10th of March, Keane went to defendant's place of business, at 612 Chestnut street, for the purpose of securing employment. He was met by defendant, Buck, who asked him for references. The references were given, and Buck told Keane to return at 1 o'clock. At the appointed time, Keane returned, when Buck introduced him to a man by the name of Anderson; at the same time stating to Anderson that he (Keane) had splendid references, and for him to do the best he could for him. At the same time, Anderson invited Keane to go into an adjoining room, where he demanded of Keane $50 as a guaranty of his good faith and honesty in his employment; telling him to return the next day. On the following day, Keane returned, there he found Buck, who told him that Anderson did not understand the business, and that it required $150 as a deposit for his honesty, inasmuch as he (Keane) would be required to handle, in his employment, four or five hundred dollars per day. Keane left, stating that he would return the next day, which he did, bringing with him the additional $150. This he turned over to Buck, together with the receipt for $50 which Anderson had given him. Buck, as the evidence shows, read a statement, which he termed a receipt, showing that Keane had paid him the sum of $200, which was considered a deposit with Buck to secure the honesty of Keane in the conduct of his business in which he was to be engaged; the understanding being that Keane was to receive $15 per week for his services; the money deposited to be returned to him when he became dissatisfied with his position. When Keane became dissatisfied and quit the service of Buck, he demanded his money from Buck, but he refused to pay it to him. What purported to be a receipt for this money was handed to Keane, and he put it in an envelope, and did not look at it for more than a week. It developed, however, that this was not a receipt, but a bill of sale of one-half interest in the house department. Keane remained in the employ of Buck about three or four weeks, during which time he drew $15.75 in salary. The defense was that Keane purchased from defendant one-half interest in the rooming-house business, and the money turned over by Keane to him was in payment for such interest.

No just complaint can be made of the instructions, so that the only question for our consideration is as to whether or not defendant was, under the evidence, guilty of grand larceny. If Keane had no intention of parting with his money when he turned it over to defendant, but only gave defendant temporary possession thereof as security for the faithful performance of his duties as the employé of defendant, and defendant thereafter feloniously appropriated it to his own use, against the will or consent of Keane, with the purpose and intent of depriving Keane of it, he was guilty of grand larceny; otherwise not. The distinction between larceny, false pretenses, and embezzlement is concisely stated in Commonwealth v. Barry, 124 Mass. 325, as follows: "If a person honestly receives the possession of the goods, chattels, or money of another upon any trust, express or implied, and, after receiving them, fraudulently converts them to his own use, he may be guilty of the crime of embezzlement, but cannot be of that of larceny, except as embezzlement is by statute made larceny. If the possession of such property is obtained by fraud, and the owner of it intends to part with his title as well as his possession, the offense is that of obtaining property by false pretenses, provided the means by which they are acquired are such as, in law, are false pretenses. If the possession is fraudulently obtained, with intent on the part of the person obtaining it to convert the same to his own use, and the person parting with it intends to part with his possession, merely, and not with his title to the property, the offense is larceny." In People v. Morse, 99 N. Y. 662, 2 N. E. 45, the defendant advertised for a clerk. A Miss Herder applied for the position, and was required by defendant to deposit $600 in cash as a security for the faithful performance of the duties of the position. A Miss Wilson, a friend of the applicant, thereupon delivered to defendant six $100 bills, upon which the defendant agreed to pay interest, which was to be returned to Miss Wilson when Miss Herder quit the service of defendant. The defendant appropriated the money to his own use. The court charged the jury as follows: "If you are satisfied from the evidence, beyond any reasonable doubt, that it was the design of the defendant, Carrie R. Morse, to fraudulently and feloniously obtain the complainant's money, and convert it absolutely to her own use, without the complainant's consent, and that in pursuance of that design the defendant so obtained $600 by the means and in the manner and under the circumstances testified to by the people's witnesses, with the intention of converting the money absolutely to her use, without the consent and against the will of the complainant,...