THE

Pacific Reporter.

VOLUME VI.

SUPREME COURT OF CALIFORNIA.

CUMMINGS V. MARSH. (No. 8,748.)

Filed February 16, 1885.

APPEAL-EVIDENCE-SUBSTANTIAL CONFLICT-JUDGMENT AFFIRMED.

Where the issue is as to the weight of evidence, and there is a substantial conflict, the judgment will not be disturbed.

Department 1. Appeal from the superior court of the city and county of San Francisco.

J. H. Miller, for appellant.

W. L. Dudley and Pillsbury & Titus, for respondent.

BY THE COURT. There was a substantial conflict in the evidence with respect to the issue whether defendant agreed that he would notify plaintiff within 24 hours after the horse became ill, and as to the other issues made by the pleadings.

Judgment and order affirmed.

(66 Cal. 423)

PEOPLE V. RAE. (No. 20,062.)

Filed February 11, 1885.

LARCENY OBTAINING MONEY UNDER FALSE PRETENSES-DISTINCTION BETWEEN. The crime of larceny is established, where, by means of fraud, conspiracy, or artifice, possession of property is obtained with felonious intent, and the title still remains in the owner, whereas the crime is obtaining money under false pretenses, where the owner parted with the title as well as the possession. SHARPSTEIN, J., dissenting.

In bank. Appeal from the superior court of the county of Sacramento.

Hy. Edgerton and Hall & Buckley, for appellants.

The Attorney General, for respondent.

Ross, J. The defendant was convicted of the crime of grand larceny, under an information filed by the district attorney, charging

v.6p,no.1--1

him with that offense. What he did was this: In company with a confederate, who passed by the name of Turner, he boarded an emigrant train of the Central Pacific Railroad Company, and engaged the prosecuting witness, who was a passenger on the train, in conversation. He represented himself to be a dealer in furs, and said he was traveling on the emigrant train because of the convenience it afforded him of stopping along the route for the transaction of his business. He asked the prosecuting witness if he knew a Mr. Turner, of the firm of Turner & Co., of Boston, and told him he had telegraphed Turner to meet him at the point the train then was, but had not seen him. Just as the prosecuting witness answered that he did not know such a man, the pretended Turner opportunely appeared in the car, when defendant looked up and said, "Oh, here is the gentleman coming now." Defendant introduced his confederate to the prosecuting witness. The confederate then said to the defendant, "I got your telegram, and I have got your goods all fixed up." Defendant replied: "I am very glad. How are you sending them,—by express?" The confederate replied: "Yes, by express. No, by transfer; they will not touch any unless prepaid." Defendant then produced two currency notes, saying that was all the change he had, and that he did not know how he was going to arrange the matter unless Turner could change "this bill;" at the same time producing what bore a slight resemblance to a United States bond for $1,000, with coupons attached. Turner said he could not change it, when defendant asked the prosecuting witness how much money he had, who replied that he had about $100 or so. Defendant then said he was in a bad fix and did not know what he was going to do, and then asked the prosecuting witness to let him (defendant) have what money he had, until he (defendant) could go to the baggage-car and get what money he wanted, and that they could settle up as they went along; at the same time offered the prosecuting witness the pretended bond as temporary security. In response to that request, the prosecuting witness handed defendant $160 of his money, and defendant, saying that he would be back in half an hour, and asking the prosecuting witness to retain his seat for him in the mean time, left the car. Of course, instead of returning, he left the train with the money and his confederate.

It is claimed for the appellant that the offense thus committed was not larceny, but the obtaining of money by means of false pretenses. The distinction between the two crimes is sometimes very narrow, but yet it is well defined. Where, by means of fraud, conspiracy, or artifice, possession of the property is obtained with felonious intent, and the title still remains in the owner, larceny is established. While the crime is false pretenses, if the title as well as the possession is absolutely parted with, no one, we presume, would seriously deny the sufficiency of the evidence to justify the finding of a felonious intent on the part of the defendant in taking the money in question; and,

under the circumstances of the case, there can be as little doubt of the proposition that there was no intention on the part of the prosecuting witness to part with his ownership of the money. The criminal and fraudulent conduct of the defendant and his confederate in no way operated a transfer of the title to them, or either of them, or at all changed the ownership of the money; it remained the money of the prosecuting witness. In Com. v. Barry, 124 Mass. 325, there was evidence that as A. was passing a bar-room, the defendant, a girl, called him in, and he, at her request, gave her money to buy a bottle of brandy. They went up stairs together, and she said this bottle would not be enough for the night, and asked for more money with which to buy another bottle. A. thereupon gave her a twenty-dollar bill to get a quart of brandy, the price of which was three dollars, not expecting to receive the bill back, but the change, after deducting the price of the brandy. The defendant went out and soon returned with another girl, saying she could not get it. The other girl said she knew where to get it, and the two girls went out and he saw no more of them or his money. Upon this evidence the supreme court of Massachusetts had no difficulty in holding the defendant properly convicted of larceny. In principle that case is like that now here. Still closer as respects the facts, and therefore more directly in point, is the case of Loomis v. People, 67 N. Y. 322. There it appeared that Lewis, one of the prisoners, made the acquaintance of Olason, the prosecutor, and, under the pretense that he had a check for $500 he desired. to get cashed at a bank, invited Olason to go with him. He led him into a saloon, where was the prisoner, Loomis, whom the evidence showed to be a confederate of Lewis. Lewis proposed to Loomis to throw dice; they did so for $5, and Loomis lost. They then proposed to throw for $100. Lewis asked Olason to lend him $90, saying, "I am sure to beat him again, and you can have your money back. If I do lose I have got the check for $500, and we will go up to the bank and get the check cashed and you can have the money.' Olason let him have the $90. The dice were thrown and Lewis lost. Olason insisted on the return of the money. The purported check was then put up against $100, and Lewis again lost. Loomis and Lewis thereupon went away. The court charged the jury, in substance, that if satisfied beyond a reasonable doubt that the two prisoners conspired fraudulently and feloniously to obtain the complainant's money and to convert it absolutely, without his consent and against his will, they could convict of larceny; and it was held on appeal no error, and that the evidence was sufficient to sustain the conviction; the court observing:

"It was a clear case of larceny, as marked and significant in its general features as if the prisoners had wrongfully seized and appropriated it when first produced. The form of throwing the dice was only a cover, a device, and contrivance to conceal the original design, and, so long as there was no consent to part with the money, does not change the real character of the

crime. While the element of trespass is wanting, and the offense is not larceny, where consent is given, and the owner intended to part with his property absolutely, and not merely with a temporary possession of the same, even although such consent was procured by fraud, and the person obtaining it had an animus furandi, yet, as is well said by a writer upon criminal law, it is different where, with the animus furandi, a person obtains consent to his temporary possession of property and then converts it to his own use. The act goes further than the consent, and may be fairly said to be against it. Consent to deliver the temporary possession is not consent to deliver the property in a thing, and if a person, animus furandi, avail himself of a temporary possession for a specific purpose, obtained by consent, to convert the property in the thing to himself and defraud the owner thereof, he certainly has not the consent of the owner. He is therefore acting against the will of the owner, and is a trespasser, because a trespass upon the property of another is only doing some act upon that property against the will of the owner.' In the case at bar there was no valid agreement to part with the money absolutely, and no consent to divest the owner of his title. It was passed over for a mere temporary use at most, and, the legal title remaining in the owner, the conversion of it by the prisoners, within the rule cited, was larceny. The reports are full of familiar illustrations of this rule, as a reference to some of the leading cases will show."

And the court proceeded to refer to many of them, which may be consulted by turning to the case from which this extract is taken. Judgment and order affirmed.

We concur:

MYRICK, J.; THORNTON, J.; MORRISON, C. J.

SHARPSTEIN, J. I dissent. In Smith v. People, 53 N. Y. 111, the New York court of appeals says:

"If by trick or artifice the owner of property is induced to part with the custody or naked possession to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but the right of property also, the offense of the party obtaining them will not be larceny, but that of obtaining goods by false pretenses."

In an earlier case the same court said:

"The only question remaining in any case is whether the taking was with the consent of the owner; for if so, although the consent was obtained by gross fraud, there is no larceny." Bassett v. Spofford, 45 N. Y. 387.

And Bishop says:

'Where the consent is as broad as the taking, going to the relinquishment of the ownership in the property, it is effectual though obtained by fraud; in other words, by reason of the consent, even when procured by fraud, there is still no trespass, therefore no larceny." 2 Crim. Law, 811.

It is claimed in this case that the prosecuting witness did not consent to part with his right of property in the money which he parted with the possession of. The bill of exceptions shows that when testifying he was asked: "You thought that Morgan [defendant] wanted. to pay Turner what he owed him?" Answer. "Yes." Question. "You loaned him this $160 for the purpose of Morgan's [defendant] paying Turner?" Answer. "Yes, that was the idea." In the absence of

fraud, I think his intention to part with the property in the money would be too clear to admit of doubt. He, in effect, says that he lent the money to the defendant, understanding at the time that defendant was to pay it to a third person to whom he (defendant) was indebted. To say that the owner of the money intended to part with his property in the money if the representations made to him were true, but to retain his property in it if they were not, is, in effect, saying that if his consent to part with it was obtained by fraud, he never consented, which is inconsistent with the doctrine that if the consent be obtained by gross fraud there is no larceny. And Bishop says this doctrine is too firmly established by the authorities to be overthrown by judicial power. 2 Crim. Law, 808. But the court below, in effect, instructed the jury that if the consent of the owner to part with his property was obtained by fraud, the fact of such consent being given was quite immaterial; that consent so obtained was not

consent.

After giving the jury the Code definition of "larceny," the court proceeded:

"When a person obtains property, whether it is money or other property, by artifice, stratagem, deceit, and fraud, it would be stealing within the meaning of this statute. If it is done with intent at the time to obtain it, and to appropriate it to his own use and to defraud the party of it, it is stealing, when artifice and fraud are resorted to for the sole purpose of getting possession of the property. * ** * Such artifice, stratagem, deceit, and fraud that so obstructs the reason of men that they cannot be said to consent, amounts to stealing, because the title of property does not pass from one man to another except by his consent; and, as is said by Justice BALDWIN, of our former supreme court, in the case of Butler v. Collins, 12 Cal. 457, consent requires something more than a mere formal act of the mind;' and I will read to you what he says, and will charge you that that is the law of this state: But consent in law is more than a inere formal act of the mind: it is the act unclouded by fraud, duress, deceit, and stratagem.'"

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But in Butler v. Collins the court also said that the obtaining of goods by such means would be obtaining them by false pretenses, which is a different and distinct offense from larceny. And it is only by wholly ignoring the distinction that this charge can be sustained. The charge confounds the case of obtaining the mere naked possession of property, with that of obtaining the property itself. The court was requested by the defendant to give the following instruction:

"If you find from the evidence that the money which is the subject of the alleged larceny in this action was obtained by defendant from the prosecuting witness Hollet; and that the said Hollet voluntarily gave the money to the defendant; and that he [Hollet] did not expect to get any part of this money back from the defendant; and that at the time the money was so obtained it was understood by the said Hoilet that said money was to be used by the defendant on his own account and not on account of, or for the benefit of, said Hollet,-then the defendant is not guilty of larceny, and you must acquit him of the crime charged in this information, even though you should find that the defendant fraudulently obtained the money by means of false pretenses."