State v. Willliams.
| Decision Date | 01 November 1910 |
| Court | West Virginia Supreme Court |
| Parties | State v. Willliams. |
Under a count for simple larceny it is admissible to prove that the property was obtained by false pretense, with intent to defraud.
to Defraud Elements of Defense,
One who obtains possession of property upon the pretense of buying it for cash, at an agreed price, for the purpose of the payment of a just debt then due by the owner, equal to, or greater in amount than the price of the property, is not guilty of a statutory crime.
The procuring of the payment of a. just oebt already due, by false pretenses, is not an indictable offense.
Error to Circuit Court, Braxton County.
Ab. Williams was convicted of larceny, and he brings error.
'Reversed and Remanded.
Morrison & Rider and C. W. Flesh er, for plaintiff in error. William G. Conley, Attorney General, for the State.
Defendant was convicted in the circuit court of Braxton county on an indictment for the larceny of a cow worth $27.00, the property of one J. F. Combs, and sentenced to an indefinite term in the penitentiary, and brings error.
The proof shows that defendant got possession of the cow by going to Combs' house in the country and representing to him that he was sent to buy her for one Holcomb, a butcher, whose agent defendant claimed to be, and to whom Combs had before that time talked of selling her. They agreed on a price of $27.50 which defendant said would be satisfactory to Holcomb. Defendant then said he did not have any money with, him, and Combs consented to go with him to the town of Sutton to get it, and assisted defendant in leading the cow to town. When they arrived, defendant put the cow in the stable of one Frank Frame; and, instead of paying him the money, presented to Combs a judgment in favor of said Frame against Combs for $50.00, which had been assigned to defendant. The judgment was subject to a credit of $7.00, and admittedly just, but Combs refused to let the cow go in payment of it. He, however, proposed to defendant that, if he would pay him $15.00 in cash, the balance of the value of the cow might he applied to the judgment, but defendant declined the proposition. Combs then brought an action of detinue, gave bond, and regained possession of the cow. Pending this action, a compromise was effected by Combs paying $10.00 in discharge of the judgment, and dismissing the action of detinue.
On the foregoing state of facts defendant was indicted for larceny, tried and convicted. Do the facts sustain the indictment? If they prove that defendant obtained the cow by false pretense, with intent to defraud Combs, they do; otherwise they do not.
It is well settled by adjudicated cases, both by this Court and the supreme court of Virginia, that an indictment for larceny, may be sustained by proof that the property, alleged to have been stolen, was in fact obtained by false pretense, with intent it defraud. Because the statute, section 23, chapter 145, Code 1906, says, that a person who obtains the money, or property of another by such means, and with such intent, shall be deemed, guilty of larceny. Leftwich v. Commonwealth, 20 Graf. 719;
Andble's Case, 24 Grat. 568; Bull's Case, 25 Grat. 981; State v. Miller, 28 W. Va. 499; v. Reece, 27 W. Va. 375; State
v. Edwards, 51 W. Va. 279. There can he no doubt that defendant obtained possession of the cow by means of false pretense; but the serious question is, did he do it with intent to defraud Combs? His only purpose in deceiving was to induce Combs to pay a debt, greater in amount than the price of the cow. Combs could not have disputed the debt, because it had been reduced to judgment; he, in fact, admits it to be just. Can it be said that one is defrauded when he is simply deceived into paying a just debt, already due, against his will? This question arose in State v. Burst, 11 W. Va. 54, and it was there held not to be a crime. In a very carefully prepared opinion by that eminent jurist, Judge Green, in which the other judges concurred, in concluding the discussion of the phrase used in the statute, "with intent...
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