State v. Healy, 32371

• Decision Date: 21 November 1951
• Docket Number: No. 32371,32371
• Citation: 156 Ohio St. 229,102 N.E.2d 233
• Parties: , 46 O.O. 110 STATE v. HEALY.
• Court: Ohio Supreme Court

Page 229

156 Ohio St. 229

102 N.E.2d 233, 46 O.O. 110

STATE v. HEALY.

No. 32371.

Supreme Court of Ohio.

Nov. 21, 1951.

Syllabus by the Court

1. The provision of Section 12447-1, General Code (the larceny by trick statute), that 'whoever obtains possession of, or title to, anything of value with the consent of the person from whom he obtained it, provided he induced such consent by false or fraudulent representation, pretense, token, or writing is guilty of larceny by trick,' defines a new and different offense punishable under the laws of Ohio and prescribes the elements necessary to constitute such offense.

2. A statute defining an offense, which is silent on the question of intent, thereby indicates the purpose of the General Assembly to make proof of a specific intent unnecessary, and, therefore, proof of a general intent to do the proscribed act is sufficient; there are no common-law crimes and no common-law criminal procedure in Ohio. State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313, approved and followed.

3. A charge of the trial court in a prosecution for violation of Section 12447-1, General Code, which, following a general charge on intent and the enumeration of the essential elements of the offense of larceny by trick in the words of the statute, instructs the jurors that to find the defendant guilty as charged they must be convinced beyond a reasonable doubt that he obtained possession of property of value from another, with the consent of such other person, that he obtained it by means of false or fraudulent representation and that such false or fraudulent representation was the inducement which led the person, from whom the property was taken, to deliver it to the defendant, and that such transaction took place in the county alleged, is not erroneous.

In the September 1948 term of the Court of Common Pleas of Cuyahoga County, the grand jury returned an indictment, containing 12 counts, charging the defendant, Leslie T. Healy, with the violation of Section 12447-1, General Code, commonly referred to as the 'larceny by trick statute.' Upon application therefor a bill of particulars was furnished the defendant on June 6, 1949, which was prior to the trial. The state entered a nolle prosequi as to five counts in the indictment and the trial proceeded on the remaining seven. The validity of both the indictment and the bill of particulars was challenged by the defendant on the ground that they were vague, indefinite and uncertain in their terms, and for the further reason that Section 12447-1, General Code, under which the indictment was purported to have been drawn, is unconstitutional and void because of being vague, indefinite and uncertain. The challenge was rejected.

Trial was had to a jury which returned a verdict of guilty on each of the seven counts. A motion for a new trial and a motion in arrest of judgment were filed in due course and overruled. Judgment was entered on the verdict and the defendant sentenced to the penitentiary.

The Court of Appeals (one judge dissenting) reversed the judgment of the trial court for error of law '(1) in failing to instruct the jury that 'an intent to deprive owners of their property' as an element of the crimes charged, and (2) for error of law in exclusion of evidence proffered by defendant-appellant.'

The cause is before this court following the allowance of a motion by the state for leave to appeal.

Frank T. Cullitan, Pros. Atty. and Frederick W. Frey, Cleveland, for appellant.

Michael A. Picciano and Alan Meltzer, Cleveland, for appellee.

MATTHIAS, Judge.

The question of law presented involves primarily an interpretation of Section 12447-1, General Code, which became effective September 16, 1943. This statute which defines 'larceny by trick' has not heretofore been considered by this court. It reads as follows:

'Whoever obtains possession of, or title to, anything of value with the consent of the person from whom he obtained it, provided he induced such consent by a false or fraudulent representation, pretense, token, or writing is guilty of larceny by trick, and, if the value of the thing obtained by such false or fraudulent representation, pretense, token, or writing is thirty-five ¹ dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than seven years, or, if the value is less than that sum, be fined not more than two ² hundred dollars, or imprisoned not more than thirty ³ days, or both.'

Throughout this trial, there was a sharp conflict between the state and the defendant as to whether it was necessary for the jury to find as one of the elements of 'larceny by trick' an intent to unlawfully and permanently deprive the owner of the possession of his property. In support of its contention, the state requested the court to give to the jury in writing before argument the following charge:

'I charge you that it is the law of Ohio, applicable to this case, that a man is presumed to intend the natural and probable consequences of his act, and if you find beyond a reasonable doubt that the natural and probable consequences of the act of the defendant in any or all counts of the indictment was unlawful, then you are to presume that his intent was unlawful.'

This charge was given over the objection and exception of the defendant.

The defendant then requested the court to charge in writing before argument in part as follows:

'I charge you further that it is the law of Ohio, applicable to this case, that one of the elements of the crime of larceny by trick is the intent to unlawfully deprive the owner of the possession of his property permanently. This intent must exist at the exact time when the possession of the property is obtained, and if the intent does not exist at the time, but comes into being after possession is obtained, then and in that event, the crime of larceny by trick has not been committed, even assuming that all the other elements of the crime should exist and it would be your duty in that event to find the defendant not guilty.

'The court charges you further that it is the law of Ohio, applicable to this case, that a false representation or pretense must relate to a past or existing fact and must be made with knowledge of its falsity. No representation, as to a future event, whether in the form of a promise or not, can be made the basis of a false representation or pretense, under which a person can be found guilty of the crime of larceny by trick.

'If you find that the false representations or pretenses when made related to a future event, rather than as to a past or existing fact, it will be your duty to find the defendant not guilty, even though you may find all the other elements of the crime to have been proven.'

These requests the court refused to give to which refusal defendant excepted.

The portion of the general charge of the trial court defining the offense and instructing the jury particularly as to 'intent' is as follows:

'You will note that the first element of the crime of larceny by trick is that an accused must have obtained possession of something, or title to something.

'To have possession is to have actual, physical control of a thing and to hold it for one's self.

'To have title so something is to own it.

'These two elements--possession and title--need not be present. If all other elements of the crime are present, an accused need only have obtained 'possession' or 'title.' Both elements may be present in a given case but either will suffice.

'The second element is that possession of, or title to, a thing of value be obtained. In each count of the indictment in this case it is charged that possession of a sum of money was obtained. Our law defines a thing of value, and money is within its definition. You are therefore instructed that if possession of any sum of money was obtained, possession of a thing of value was obtained.

'The third element is that possession or title must have been obtained with the consent of the person from whom it was obtained. Consent in such a case means that the person who delivered money did so voluntarily or by agreement. There must have existed no compulsion but the person surrendering possession or title must have been willing to do so.

'The fourth element requires that such consent of the one from whom possession or title, or both, is or are taken must have been induced by a false or fraudulent representation, pretense, token, or writing of the one who obtains the possession or title.

'A representation is false when faithlessly or treacherously made when the maker knows that it is not true or that he does not intend to carry it out.

'It is a presentation in words or statement not honestly made.

'A representation is fraudulent when it is tricky, deceitful or dishonest.

'A pretense is the act of holding out or offering to another something false or feigned; it is a presentation of what is deceptive or hypocritical; it is a showing of what is unreal and concealing what is real.

'A writing is the expression of ideas by written words, that which is written, any written paper or document.

'The fifth element requires that the consent to part with possession or title must have been induced by a false or fraudulent representation, pretense, token, or writing. 'A person is induced to do a thing when he is decisively influenced to do that thing; so that in a case of this kind he must have parted with possession or title as a result of the false or fraudulent representation, pretense, token or writing of another.

'The indictment in this case charges only the obtaining of possession of monies so that you may disregard any and all reference to title.

'The crime of larceny by trick charged in the indictment in this case involves intent. To constitute a criminal offense in this case two things must be established; the intent to do the wrong or commit the crime, and the performance of the act or the commission of the wrong in...