State v. James
| Decision Date | 11 December 1943 |
| Docket Number | 36014. |
| Citation | 157 Kan. 703,143 P.2d 642 |
| Parties | STATE v. JAMES. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
At common law, "larceny" was a crime while "embezzlement" was merely a tort against the injured party, and the present status of the latter as a crime is purely statutory. Gen.St.1935, 21-545.
"Larceny" is distinguished from "embezzlement" in that the element of trespass is inherent in commission of the former while in the latter possession of the res is obtained for a lawful purpose but is later perverted by wrongdoer to an unlawful use or purpose of his own. Gen.St.1935, 21-533 21-545.
Where accused has mere custody of property, legal possession of which is in owner, and makes away with property with intent to deprive owner of property permanently, the offense is "larceny". Gen.St. 1935, 21-533.
Where lawful possession of property is conferred on accused, as where property is intrusted to a bailee or trustee, a later conversion by accused of property to his own use is "embezzlement" unless at time possession is conferred on him he already has intent to convert property to his own use, in which case offense is "larceny". Gen.St. 1935, 21-533, 21-545.
Opening statement by prosecuting attorney as amplified by testimony of prosecuting witness indicating that defendant farm hand had been given bare custody of truck to drive it from field to house, which mission defendant executed, that defendant then gathered up various articles and drove off with truck indicated that defendant was properly charged with grand larceny of truck rather than embezzlement thereof since defendant's acts after arriving at house constituted an independent adventure. Gen.St.1935, 21-533, 21-545.
In a criminal prosecution for the theft of a farmer's pick-up motor truck, the prosecuting attorney's opening statement to the jury, as amplified by the testimony of the prosecuting witness, considered, and held to indicate that defendant was properly charged with the crime of grand larceny, not that of embezzlement.
Appeal from District Court, Labette County; L. E. Goodrich, Judge.
Proceedings by the State against Leonard W. James on a charge of grand larceny for the alleged theft of a pick-up motor truck. Defendant's motion for judgment on ground that opening statement to jury as amplified by testimony of complaining witness disclosed that prosecution, if any, should be for embezzlement was granted, and State appeals.
Reversed.
Braden C. Johnston, Asst. Atty. Gen., and Willis K. Dillenberger Asst. County Atty., of Oswego (A. B. Mitchell, Atty. Gen and George F. Burton, County Atty., of Parsons, on the brief), for appellant.
Mark Gillim, of Parsons, for appellee.
This appeal presents for review a ruling of the trial court in the preliminary stage of a prosecution for grand larceny for the alleged theft of a pick-up motor truck. When the jury was empaneled and the prosecuting attorney had made his opening statement, counsel for defendant moved for judgment on the ground that the opening statement showed that defendant was not guilty of grand larceny, but if guilty of anything it was embezzlement. The trial court took the motion under advisement until the testimony of the complaining witness was received.
The jury were temporarily excused, and James Francisco, the prosecuting witness and owner of the pick-up truck, was called as a witness. His testimony was briefly to this effect:
Francisco was a Labette county farmer. His family were temporarily sojourning in Joplin, Missouri. While returning from a visit to his family Francisco gave defendant a ride, and then learned that defendant was looking for work. Francisco told him he could give him work and took him to his farm home, and set him to work at whatever there was to do, including the mowing of weeds. A few days later, on July 18, 1942 defendant was mowing weeds about the farm, and Francisco was plowing in a field remote from the house. At noon Francisco came in from the field and he and defendant ate lunch together. After lunch Francisco and defendant got into Francisco's pick-up truck and rode in it to the back field where Francisco was to resume plowing. Defendant then drove the truck back to the house.
Francisco's testimony, in part, reads:
Instead of renewing his task of mowing weeds after driving the truck back to the house, defendant entered the house, changed his clothes, stole some clothing belonging to Francisco's son, stole a 22-rifle, stole $10 in pennies and took the truck and disappeared. When Francisco came to the house that evening and found defendant and the truck missing he reported the fact to the county authorities. Sometime the same afternoon defendant had a collision accident with the truck over in neighboring county of Wilson. The sheriff of Wilson county found the truck which was damaged to the extent it could not be operated. Defendant told the sheriff he was a son of Francisco, and the officer let him go. Sometime later defendant was located in Texas and brought back to Labette county to stand trial.
When the trial court had heard Francisco's testimony in detail, it inquired if the state was satisfied with its accuracy and truth, and the prosecutor responded in the affirmative. Then the trial court inquired of counsel for defendant if he was renewing his motion for judgment on the prosecutor's opening statement, and the latter also answered affirmatively. The trial court then called the jury and discharged it, on the express ground that the facts adduced in the prosecutor's opening statement and the testimony of the prosecuting witness showed that there was no basis for a prosecution of defendant for grand larceny, but for embezzlement. The trial court also ordered defendant discharged from custody on the crime charged in the information, but directed the sheriff to hold him until the county attorney should determine what further or other prosecution should be instituted against defendant.
The state appeals, contending that neither in fact nor in law did the testimony of Francisco, the prosecuting witness, fail in any particular to show the essential elements which constitute the crime of grand larceny, and that in neither respect did that testimony (or the prosecuting attorney's opening statement) show facts constituting the crime of embezzlement. The pertinent provisions of the crimes act read: G.S. 1935, 21-533.
G.S.1935, 21-545.
Larceny was a crime at common law (32 Am.Jur. 882)...
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