State v. Lilly

• Decision Date: 26 April 1932
• Docket Number: 7125.
• Citation: 164 S.E. 242,112 W.Va. 231
• Parties: STATE v. LILLY.
• Court: West Virginia Supreme Court

164 S.E. 242

112 W.Va. 231

STATE v. LILLY.

No. 7125.

Supreme Court of Appeals of West Virginia.

April 26, 1932

Submitted April 20, 1932.

Rehearing Denied June 9, 1932.

Syllabus by the Court.

Evidence disclosing that property was obtained by false pretense, with intent to defraud, held admissible under count for simple larceny (Code 1931, 61-3-24).

In prosecution for larceny, based on obtaining money from purchaser of realty under false pretenses, evidence held to support conviction (Code 1931, 61-3-24).

1. "Under a count for simple larceny it is admissible to prove that the property was obtained by false pretense, with intent to defraud." State v. Williams, 68 W.Va 86, 69 S.E. 474, 32 L. R. A. (N. S.) 420.

2. Proof that the defendant, by false pretense as to the state of the title to a parcel of real estate not owned by him but on which he had an option, induced certain persons to become purchasers thereof and to pay their money therefor to the apparent owner, in which money the defendant in pursuance of the plan employed by him, immediately shared sustains against him a charge of larceny of money of such purchasers under the statute which denominates as larceny the obtaining of money or other property by false pretense.

Error to Circuit Court, Pocahontas County.

C. L Lilly was convicted of grand larceny, and he brings error.

Affirmed.

M. F. Matheny, of Charleston, A. D. Preston, of Beckley, and F. R. Hill, of Marlinton, for plaintiff in error.

H. B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen., for the State.

MAXWELL J.

Sentenced to three years' imprisonment under conviction of grand larceny, defendant prosecutes this writ of error. There was a change of venue from Raleigh county to Pocahontas.

By statute a person who obtains money or other property by false pretense is guilty of larceny. 1923 Code, c. 145, § 23; 1931 Code, 61-3-24. "Under a count for simple larceny, it is admissible to prove that the property was obtained by false pretense with intent to defraud." State v. Williams, 68 W.Va. 86, 69 S.E. 474, 32 L. R. A. (N. S.) 420. In conformity: State v. Martin, 103 W.Va. 446, 137 S.E. 885. The state's charge against Lilly is that he obtained money of L. N. Hendrick and his wife, Minnie A. Hedrick, by false pretense with intent to defraud, and is therefore guilty of larceny under the statute.

At the time of the transaction here involved, Neola B. Lytton resided in the vicinity of the city of Beckley on a six-acre tract of land of which she was presumably the owner. Defendant, a practicing attorney at Beckley, knew that there was several hundred dollars of indebtedness against the property, and that Mrs. Lytton's husband had just died from accident. At defendant's solicitation, she gave him a ten-day option on the property at the price of $3,000.00. She testifies that he advised her that she should sell the property so as to discharge the indebtedness and have a few hundred dollars cash surplus.

Defendant had been a neighbor of Mr. and Mrs. Hedrick and was well acquainted with them. He knew that their daughter had just died leaving several thousand dollars of life insurance payable to them. At about the time of obtaining the option of Mrs. Lytton, defendant approached Mr. Hedrick and interested him in the purchase of the Lytton property. Mr. Hedrick went to see the property, and then, within a day or two the defendant took both Mr. Hedrick and his wife to inspect the property. On the return trip to Beckley in a taxi, Mr. Hedrick asked the defendant if there were "any heirs against the place" or debts or incumbrances. Defendant replied that there was certain lien indebtedness but that there were no heirs. After their return to Beckley Mr. and Mrs. Hedrick told defendant they would take the property at the price he had asked them for the same.

Defendant admits replying to Mr. Hedrick in the taxi that there were no heirs interested in the property but says he made that reply in good faith on information which he had received from both Mrs. Lytton and her husband and from recitals in a recorded deed. The truth was that there was then outstanding in the children of Clayton Lytton, deceased, an undivided one-fifth interest in this property. Clayton was a brother of Mrs. Lytton's husband. The property had been owned by their brother, J. F. Lytton, an unmarried man. Upon his death, title had been cast by descent upon his mother, Virginia McNabb, his three brothers, James E., W. G., D. L. (Neola B. Lytton's husband), and upon the children of Clayton Lytton, deceased. James E. and W. G. Lytton thereafter conveyed their interests to Mrs. McNabb, reciting in the deed that they were the only heirs of J. F. Lytton, deceased. Mrs. McNabb devised the property to D. L. Lytton. The latter and his wife, Neola, conveyed the property to Ruth Mahaney and she immediately reconveyed to Neola. In these transfers the Clayton Lytton interest was entirely ignored.

The price paid by Mr. and Mrs. Hedrick for the property was $5,250.00. Check for this amount was executed by Mr. Hedrick payable to Neola B. Lytton. At a bank in Beckley where the transaction was closed, Mrs. Lytton endorsed her name on the back of the check apparently without knowing the amount thereof, and immediately turned it over to the defendant, who at once deposited it to his credit in the bank. He then drew his check to Mrs. Lytton for $3,000.00, and she immediately discharged the indebtedness against the property. Defendant's net profit was over $2,000.00.

Pursuant to an understanding which Mr. and Mrs. Hedrick had with the defendant at the time they agreed to purchase the property they employed W. H. McGinnis, Jr., a lawyer at the Beckley bar, to examine the title. He did so and reported that so far as he could ascertain from the records, the title was all right, subject to the lien indebtedness. The defendant takes the position that the Hedricks thus having employed an attorney to examine the records for them, must be deemed to have relied upon his advice in the matter rather than upon any representations they claim the defendant made to them. This proposition cannot stand in the light of the undenied testimony of Mr. McGinnis that at the bank, just before the deed was delivered and the purchase money paid, he said to the defendant: "Charlie, are there any heirs against this property?" and that to this inquiry the defendant replied, "There are no heirs." Mr. McGinnis further testifies that Mrs. Lytton then confirmed the defendant's negative reply. It may be noted at this point that Mrs. Lytton was also indicted for this offense, but that the indictment was dismissed because the prosecuting...