State v. McCann

• Decision Date: 07 November 1932
• Docket Number: 13507.
• Citation: 166 S.E. 411,167 S.C. 393
• Parties: STATE v. McCANN.
• Court: South Carolina Supreme Court

166 S.E. 411

167 S.C. 393

STATE v. McCANN.

No. 13507.

Supreme Court of South Carolina

November 7, 1932

Appeal from General Sessions Circuit Court of Aiken County; E. C Dennis, Judge.

R. M McCann was convicted of breach of trust with fraudulent intention, and he appeals.

Affirmed.

Henry C. Hammond, of Augusta, Ga., and Gunter & Wilder, of Aiken for appellant.

B. D. Carter, Sol., of Bamberg, for the State.

BLEASE C.J.

The appellant was convicted, in the court of general sessions for Aiken county, his honor, Judge Dennis, presiding, of the crime usually referred to as "breach of trust with fraudulent intent" (see section 1149, Code of 1932), and was sentenced to imprisonment for one year.

The gist of the indictment was that the appellant was intrusted by Ruth McCann with the keeping and possession "of a certain check and moneys collected thereon of the value of more than two hundred dollars," property of the prosecutrix, and that "with a fraudulent intention" he unlawfully appropriated the check and "proceeds and moneys to his own use and purposes, with the intention of cheating and defrauding" the prosecutrix.

The case grows out of unfortunate family differences as to money. It is not necessary to detail all the testimony for the prosecution and defense. For the purpose of determining the appeal, only essential things need be mentioned.

The proof for the state went to show that the prosecutrix was the widow of Ernest McCann, son of the appellant. The son, sick a long time, with his wife and their baby resided in the appellant's home, in Augusta, Ga., where the son died. The son had a life insurance policy, payable to his wife, on which there was due the sum of $730. After the death of her husband, the prosecutrix, Ruth, removed to Clearwater, in Aiken county. Accompanied by the agent of the insurance company, the appellant went to the home of his daughter-in-law, in Clearwater, where the check was delivered by the agent to Ruth. The appellant told Ruth that the debts due for the illness and funeral of the son should be paid right away, and creditors were making demands. Ruth's baby being ill, she could not go in person to Augusta to attend to the matters, so she indorsed the check and turned it over to the appellant. He was instructed by his daughter-in-law "to pay the doctor's bill, the drug bill and the funeral bill and bring the rest back." He had no instructions to pay a grocery bill in Augusta charged to the appellant. The appellant cashed the check, paid the bills he was instructed to pay, and paid also his grocery bill. He returned shortly to Clearwater and delivered to Ruth $150 in cash. She contended that he should have returned the further sum of $206.50 of the money which he had used to pay the grocery account, and that she did not ratify his action.

In his defense, the appellant testified that he was a poor man; on account of the long-continued illness of his son, his services were required at home frequently, and, therefore, he could not work regularly, and added household expenses due to his son's sickness, caused him to get behind with his grocery bill; that the groceries were purchased for the use of his wife, himself, his sick son, his wife, and their baby; that his daughter-in-law, when she gave him the check for the insurance money, agreed to the payment of his grocery bill therefrom.

The appeal here presents four matters, which we shall state in our own order and language, discussing them as stated.

The first, and an important, question is that the court of general sessions of Aiken county did not have jurisdiction of the cause, since the crime alleged against the appellant, if committed by him at all, was committed, not in Aiken county, but in Augusta, Ga. It relates to the venue of the alleged offense. To decide it correctly, we shall inquire, briefly, as to the purpose, force, and effect of the "breach of trust" statute.

The law (section 1149, Code of 1932) was passed in 1866, and is as follows: "Any person committing a breach of trust with a fraudulent intention shall be held guilty of larceny; and so shall any person who shall hire or counsel any other person to commit a breach of trust with a fraudulent intention."

One of the first cases that considered an appeal from a conviction for violation of the statute was State v. Shirer, 20 S.C. 392, decided in 1884. Mr. Justice McGowan, for the Supreme Court, said, "The statute does not describe or define the offense. *** As we understand it, we have no law creating the special offense known as embezzlement, and the object of our act was simply to enlarge the field of larceny, removing what before might have been a defense for those who received property in trust and afterwards fraudulently appropriated it." (Italics ours.) (Note.--The embezzlement statute, now section 1510 of the Code, relates to public funds only, and it was not enacted until 1898. See Act Feb. 16, 1898, 22 St. at Large, p. 810.)

Another case in which the "breach of trust" statute was well considered was that of State v. Butler, 21 S.C. 353. Some of the declarations of Chief Justice Simpson, who spoke for the court, were these: "The act on the subject of breach of trust makes the offence larceny in general terms, and we think when it placed it under the general head of larceny, it partakes of all the incidents thereto, and is governed by the law applicable to larceny as one of the classes of crime whether statutory or common law. ***

" When so declared, it [the statute as to breach of trust] must be governed in every respect by the laws applicable to the general crime of larceny, one of which is the division into grand and petit." (Italics added.)

Mr. Justice Hydrick also carefully discussed the effect of the statute in State v. Posey, 88 S.C. 313, 70 S.E. 612, 614. There, the defendant was charged with breach of trust with fraudulent intention. On the facts of the case, Mr. Justice Hydrick said: "The indictment *** might well have been laid for larceny at common law."

The effect of the decisions from which we have quoted is clearly a holding that breach of trust with fraudulent intention, in this state, is nothing more or less than larceny. It might well be termed "statutory larceny," as distinguished from larceny at common law. The main distinction between the two crimes is this: In common-law larceny, possession of the property stolen is obtained unlawfully, while in breach of trust, the possession is obtained lawfully. As will be seen by an examination of the cases of State v. Posey, supra; State v. Gorman, 2 Nott & McC. (11 S.C. L.) 90, 10 Am. Dec. 576; State v. Thurston, 2 McMul. (27 S.C. L.) 382; State v. Self, 1 Bay, (1 S.C. L.) 242; and State v. Lindenthall, 5 Rich. (39 S.C. L.) 238, 57 Am. Dec. 743, if possession of the property is obtained through artifice, trick, or other fraud, then such possession is not lawfully obtained and the crime is larceny at common law, rather than that of breach of trust, as contemplated by the statute.

Under the decisions from which we have quoted, the crime of breach of trust with fraudulent intention is to be governed by the legal principles applicable to the crime of larceny. Accordingly, we next inquire as to the proper venue in cases charging that crime.

The principle is well recognized, generally, that where goods are stolen in one county or state and brought by the thief into a second county or state, the thief may be indicted in either place. 25 Cyc. 85; 16 C.J. 167; 17 R. C. L. 46. This principle was recognized as to districts, now counties, of the state, many years ago. See State v. Bryant, 9 Rich. (43 S.C. L.) 113, decided in 1855. The principle was extended to reach the case of property stolen in an adjoining state and brought to this state in the case of State v. Hill, 19 S.C. 435, decided in 1883. In the Hill Case, Mr. Justice McIver, after reviewing decisions from many jurisdictions, on the theory that larceny was a "continuing offense," declared the proper doctrine in the following language: "Where one takes goods from another in any place, under circumstances which make the taking felonious, the possession of the owner, in contemplation of law, continues, and where the goods so taken are carried into another state, that constitutes a new taking and asportation in that State, for which an indictment for larceny will lie."

On the particular question of venue, the case of State v. Thurston supra, decided in 1842, is quite interesting; it is not only applicable to the matter under consideration, but is practically decisive of the question. The defendant was a common carrier, engaged in transporting goods by boat. He received cotton in Orangeburg district to be delivered by him in Charleston. Beyond the limits of Orangeburg district, he proceeded to appropriate the cotton to his own use with the intention of depriving the true owner of his property. He was indicted and tried in Orangeburg district under the then existing law for larceny. In all probability had the statute relating to breach of trust with fraudulent intention been then in existence, he would have been charged with its violation. The question of venue was directly presented as an issue in the case. The jury were instructed to the effect that before the defendant could be convicted "there must be a taking and carrying away of the goods laid in the indictment, with a felonious intent, in the district of Orangeburg. *** If when he received the cotton, he intended to carry and deliver it to the consignee, then his subsequent fraudulent appropriation of the cotton to his own use could not make him guilty. But if, when it was delivered to him, he received it with the intention of stealing it, then it was a larceny from the beginning,...