State v. Pietranton

• Decision Date: 14 October 1952
• Docket Number: No. 10474,10474
• Court: West Virginia Supreme Court
• Parties: STATE, v. PIETRANTON.

Page 617

72 S.E.2d 617

137 W.Va. 477

STATE, v. PIETRANTON.

No. 10474.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 24, 1952.

Decided Oct. 14, 1952.

Syllabus by the Court.

A demurrer will be sustained to an indictment made under Code, 61-3-24, where it appears from the face of the indictment that the subject matter alleged to have been obtained by false representation is not 'money, goods or other property, which may be the subject of larceny'.

John G. Fox, Atty. Gen., Thaddeus D. Kauffelt and Arden J. Curry, Asst. Attys. Gen., for plaintiff in error.

Margiotti & Casey, Pittsburgh, Pa., Schuck & Blumenberg, Wheeling, W. Va., for defendant in error.

GIVEN, Judge.

At the March, 1951, Term of the Circuit Court of Brooke County, defendant, Frank A. Pietranton, was indicted for having fraudulently obtained a check from Eugene James Iacuone in the amount of $2,833.33. A demurrer to the indictment was overruled and a verdict of guilty was returned by the jury, and, a motion to set aside the verdict having been overruled, defendant was sentenced to serve an indeterminate sentence of one to five years in the state penitentiary.

In so far as material here, the indictment charged that defendant feloniously and falsely pretended and represented to Iacuone that it was necessary for Iacuone to endorse his, Iacuone's, name on a certain 'bank-check', issued and signed as maker by defendant, payable to the order of Eugene James Iacuone, and that defendant fraudulently pretended it was necessary for Iacuone to return the check, after having endorsed it, to the defendant. The indictment further charges that '* * * by means of which fraudulent and false pretenses the said Frank A. Pietranton did then and there feloniously and unlawfully obtain the said paper writing of value, towit: the said negotiable instrument, commonly called a 'bank check' issued and executed by the said Frank. A. Pietranton on December 8th, 1949, payable to the order of Eugene James Iacuone, in the amount of Two Thousand Eight Hundred Thirty-three and thirty-three one hundredths ($2,833.33) Dollars, with the endorsement thereon of the said Eugene James Iacuone, which check was given to the said Eugene James Iaucone as aforesaid by the said Frank A. Pietranton, as attorney for the said Eugene James Iacuone, in partial payment of money collected by the said Frank A. Pietranton, as such attorney for Eugene James Iacuone, of the property, goods, and chattels of the said Eugene James Iacuone, against the peace and dignity of the State.'

Defendant, an attorney at law, had been employed by Iacuone to represent him in the prosecution of a claim growing out of an automobile injury, wherein Iacuone was seriously injured. After having done certain work in connection with the prosecution of the claim, and after having instituted an action in connection therewith, defendant employed Frank A. O'Brien, an attorney at law, to assist in the further prosecution of the action. After the date fixed for trial, and after certain negotiations between defendant and O'Brien, representing Iacuone, and the attorney representing the insurance company supposedly liable, a compromise was effected whereby $18,500 was paid by the insurance company in settlement of the claim. A draft for that amount was drawn payable to O'Brien, defendant and Eugene James Iacuone. The draft was first endorsed by O'Brien and then delivered to defendant. A release of the claim had been previously executed by Iacuone and delivered to the insurance company. It is over the distribution of the funds represented by the draft that the questions arise.

It is the contention of defendant that he was entitled to receive for his services fifty per cent of the $18,500 by virtue of a written contract with Iacuone, which contract, however, was not produced and was claimed by defendant to have been misplaced or lost. Very substantial evidence supports defendant's contention as to the fifty per cent contingent fee. Defendant further contends that his oral arrangement with O'Brien was to the effect that O'Brien was to receive one half of one third of the amount of recovery. O'Brien, testifying at the instance of the State, does not appear to contend that he was to receive any larger proportion of the recovery. The State contends that under defendant's contract with lacuone, defendant was to receive only one third of the amount of recovery. There is also very substantial evidence supporting the position of the State. In making distribution of the $18,500 on December 8, 1949, defendant obtained the endorsement of Iacuone on the draft and deposited the draft in the fiduciary account of his law firm. Checks were drawn by defendant against that account; one to the order of Eugene James Iacuone in the amount of $9,000.01; one to the order of O'Brien & O'Brien, Attorneys, of which firm Frank A. O'Brien was a member, in the amount of $3,083.33; one to the order of F. B. Harrington, M. D., in the amount of $500; and another check to the order of Eugene James Iacuone in the amount of $2,833.33. The indictment relates to the last mentioned check.

It is the contention of the State that defendant falsely represented to Iacuone that to enable him to obtain a compromise of the claim for a sum greater than $10,000, it became necessary to pay a bribe to the attorney representing the insurance company, and which bribe was to be one third of the amount of recovery over and above $10,000. Defendant contends that the check for $2,833.33 represented the difference between one third of the amount of recovery and one half of the amount of recovery, after deduction of the sum paid to Doctor Harrington, the personal physician of Iacuone, after Iacuone had complained as to excessive expenses, and after defendant had agreed that such amount could be deducted from the amount of recovery, before any deduction as to the amount of the fee due defendant.

There is no question that defendant presented the so called 'bribe' check to Iacuone for endorsement; that Iacuone endorsed it; and that by virtue of the check the funds represented by it were transferred from the fiduciary account of defendant to his personal account. Mr. Iacuone testified to the effect that 'it was turned over for me to sign by Pietranton and handed back to him'. There appears no doubt that the check was delivered by defendant to Iacuone only for the purpose of endorsement. Other evidence will be detailed later in connection with discussions of particular propositions.

The statute, Code, 61-3-24, under which the indictment was drawn, in so far as applicable here, reads: 'If any person obtain from another, by any false pretense, token or representation, with intent to defraud, money, goods, or other property which may be the subject of larceny, * * * with intent to defraud, he shall, * * * be deemed guilty of larceny; * * *'.

In support of the demurrer, defendant contends the indictment shows on its face that he obtained no property capable of being the subject of larceny; that one cannot be guilty of larceny of his own check; that Iacuone had no property in the check and lost no property or right through the endorsement; and that the check was of no value, there being in the fiduciary account insufficient funds for the payment thereof, the draft for $18,500 not then having been deposited.

Code, 46-16-6, reads: 'A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.' See Mountaineer Engineering Co. v. Bossart, 133 W.Va. 668, 57 S.E.2d 633. Section 16 of Article 1 of the same chapter reads, in part: 'Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties and as regards a remote party other than a holder in due course, the delivery, in order to be effectual must be made either by or under the authority of the party making, drawing, accepting or indorsing as the case may be; and in such case the delivery may be shown to have been conditional or for a special purpose only and not for the purpose of transferring the property in the instrument. * * *'

The defendant, before the endorsement, being the maker of the check, and having continued in possession thereof from the time of the endorsement, undoubtedly remained the absolute owner of it. He could have, at any time, destroyed the check without destroying any right or property of any other person. What right or property did he 'obtain from another' by the endorsement that would be 'the subject of larceny'? Under the applicable statute, quoted above, no assignment of the funds, supposedly represented by the check, was effected. The defendant obtained no right or title to the funds, and no right to possession of the funds, which he did not previously have. He could have, after the endorsement, destroyed the check and remained in precisely the same position in relation to the funds as he was prior to the endorsement. So would Iacuone have been in the same position as he was prior to the endorsement. The only possible thing that could have been obtained by defendant was the bare endorsement of Iacuone on the check which was and remained the property of defendant, an intangible something, not a subject of larceny. Neither does the fact that defendant actually used the check to obtain a transfer of funds from the fiduciary account to his personal account alter the situation. The transfer could have been effected by him in various other ways, the fiduciary account and the sum deposited therein being under his control and subject to his orders. From these facts, we necessarily conclude that the indictment discloses on its face that the defendant obtained no property by virtue of the endorsement which could be the subject of larceny.

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