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There property is delivered with the inten- their dominion over the property was far tun of parting with it altogether (that is, from being absolute. The railroad compaby giving the title as well as the possession), ny is a common carrier. They had carried the offense is that of false pretenses. On the these goods to their place of destination, other hand, if the possession is parted with, and had the possession of them for a limand not the right of property, the offense is ited purpose that was the delivery to the that of larceny. In Commonwealth v. Barry, consignee or their authorized agent. The 124 Mass. 325, the rule is thus briefly stated: appearance of Rector, who had formerly "If the possession is fraudulently obtained been in the employ of the transfer comwith intent on the part of the person ob- pany, in his usual way, with his wagon, uptaiging it to convert the same to his own on the theory of the defense, must be treatCse, and the person parting with it intends ed as a representation or pretense that he to part with his possession merely, and not was authorized to receive the goods of the with bis title to the property, the offense is shoe company. Upon this representation the larceny." In Murphy et al. y. The People, delivery was made, but it was made for a 104 NI. 528, the same rule is announced, with

special purpose, and upon an implied undera mere change of expression. It was said: standing that he would deliver the goods to "If the owner of the goods alleged to have the shoe company. It is clear under the been stolen parts with both the possession facts in this case that the railroad company and the title to the goods to the alleged did not pass any title to this property, but thief, then neither the taking nor the con- they merely delivered the possession of these Tersion is felonious. It can but amount to

goods for a particular purpose. The dofraud. It is obtaining goods under false

minion of the railroad company over this pretenses." To the same effect is People v.

property was by no means absolute. They Morse, 99 X. Y. 662, 2 N. E. 45; Stinson v.

were simply intrusted with the custody of The People, 43 lll. 397; 2 Arch. C. R. P. L.

the property for a particular purpose. Its 372; Clark & Marshall, 2d vol. 710. It will

delivery of the possession of the property be observed that all of these cases are fully

to Rector was accompanied with the imdiscussed in the recent cases of State v. An

plied condition or understanding that such derson and State v. Buck, in which the rule

possession was delivered for the purpose of as announced fully met the approval of this the delivery of the goods to the shoe comcourt In Murphy et al. v. The People, 104

pany. I'l, and Stinson v. The People, 43 Ill., supra, There is a well-recognized distinction bethe furtber distinction was made between

tween obtaining possession of property from these two offenses that where “the owner

the absolute owner by false and fraudulent parts with the possession voluntarily, but

representations and the obtaining of propdoes not part with the title, expecting and

erty from other persons who simply have intending that the same thing shall be re

the custody and possession of the property turned to him, or that it shall be disposed of

as the agent or servant of the owner. Mr. or his account, or in a particular way, as Greenleaf, in treating of this subject, makes directed or agreed upon, for his benefit, then

clear this distinction. In discussing this the goods may be feloniously converted by proposition he says: “A felonious intent tte bailee, so as to relate back, and make

may be proved by evidence that the goods the taking and conversion a larceny."

were obtained from the owner by stratagem, It is ably and earnestly urged by-coun- artifice, or fraud. But here an important sel for appellant that under the line of

distinction is to be observed between the authorities as indicated the facts devel

crime of larceny and that of obtaining goods oped in this case simply constitute the of

by false pretenses. For, supposing that fense of obtaining property under false pre- the fraudulent means used by the prisoner tenses. We are unable to give our assent to obtain possession of the goods were the to this contention. It is urged by appellant same in two separate cases, but in the one that the railroad company had a special case the owner intended to part with his property in the goods delivered to Rector,

property absolutely, and to convey it to the and that in delivering the goods to him it

prisoner, but in the other he intended only surrendered its entire title or special own. to part with the temporary possession for a ership; hence the case should fall within the limited and specific purpose, retaining the rule of the cases herein referred to that,

ownership in himself, the latter case alone *bere an owner voluntarily parts with his would amount to the crime of larceny, the ttle to the property, and not only the pos- former constituting only the offense of obsession, the offense is that of false pre taining goods by false pretenses. Thus, obtenses. In our opinion, the argument of taining a loan of silver money in exchange counsel for appellant is predicated upon an for gold coins to be sent to the lender imerroneous conception of the relation of the mediately, but which the prisoner had not railroad company and Rector to the proper- and did not intend to procure and send, was ty charged to have been stolen. While it held no felony, but a misdemeanor; and su may be said that the railroad company had it was held where the prisoner obtained the such a special interest in this property as loan of money by means of a letter written to make the stealing from it larceny, yet by himself in the name of another person

88 S.W.--2

known to the lender. But where the goods announced as to the delivery of possession were obtained from the owner's servant, for a particular purpose. The Supreme Court the prisoner falsely pretending that he was of Georgia, in discussing the Harris Case, the person to whom the servant was direct which in some of its features is very similar ed to deliver them, it was held to be larceny. to the case at bar, thus stated the law: “The For in the two former cases the owner in- rule is that if one, meaning to steal antended to part with his money, but in the other's goods, fraudulently prevails on the latter case the taking from the servant was latter to deliver them to him, under the untortious, he having only the care and cus- derstanding that the property in them is to tody of the goods for a special purpose." pass, he commits neither larceny nor any Greenleaf's Ev. vol. 3, § 160.

other crime by the taking, unless the transMr. Wharton, in his recognized standard action amounts to an indictable cheat. But work upon Criminal Law, fully demonstrates if, with the like intent, he fraudulently gets this proposition. He said in the text: "Sup- leave to take possession only, and takes and pose A. goes to B. and says, 'I am C., sell converts the whole to himself, he becomes me these goods,' and B. delivers the goods guilty of larceny; because, wbile his intent to A. believing A. to be C., this being an is thus to appropriate the property, the conessential incident of the contract, does any sent which he fraudulently obtained covers property pass to A.? The better view is in no more than the possession.' 1 Bishop, the negative, there being no contract be- Crim. Law, $ 583, and authorities there cited. tween A. and B. If this be correct, then it In this case Harris fraudulently represented is larceny in A. to take goods on this false to High & Ryan's Sons that he was the personation; though there are authorities to agent of Moore & Marsh. They did not sell the effect that the case is not larceny, but him the goods, nor did they intend the title false pretenses. If the pretense be not false to go into Harris; but they simply delivered personation, but false statement of means, bim the custody of the goods, to be delivered then, as there is a contract of sale, the case by him to Moore & Marsh. He having conis false pretense, and not larceny. And verted the proceeds of the sale of the boxes where A. says, 'I am sent by C. to carry to his own use, he was guilty of larceny. the goods to him, which is false, and thus The title still remained in the vendor. Harobtains only possession of the goods, this is ris got the custody of the goods wrongfully larceny in cases in which B. intends to part and fraudulently." In State v. Lindenthall, only with the possession of the goods to A. 5 Rich. Law, 237, 57 Am. Dec. 743, it was But here we encounter a subordinate dis

ruled that a person who obtained the postinction. Suppose A., pretending to be C., session of goods by consent of the owner for goes to B., and fraudulently obtains from B. one purpose, such as hiring or carrying, with certain goods of C., which are in B.'s hands the intent to steal, and consummates that as bailee. Is that larceny? It certainly is, intention partly or entirely by converting because B. has no intention of passing the the goods to his own use, is beyond doubt property in the goods to A., or to any one; guilty of larceny. he (B.) considering himself to have no prop- In the case at bar Rector obtained the erty in the goods to pass. This distinction goods from the railroad company for a parhas been vindicated in Massachusetts in ticular purpose that of delivery to the shoe the following case: 'Sanderson bad left his company. He acquired no sort of title or watch at a watchmaker's to be repaired, and ownership to the property, but a mere bare the defendant went to the shop, pretending possession. The authority of the railroad to be Sanderson, asked for the watch, paid company in respect to the goods in dispute for the repairing, and took the watch with was limited. They were only authorized to a felonious intent.' "These acts,' said Chap- deliver the possession to the consignee or its man, J., 'constitute larceny at common law.' authorized agent. The case is like that of Rex v. Longstreet, In support of the contention by appellant 1 Mood. O. O. 137. The defendant in that we are cited to the case of State v. Kube, case went to a carrier's servant, and ob- 20 Wis. 217, 91 Am. Dec. 390. The facts in tained from him a parcel by falsely pre- that case somewhat distinguish it from the tending to be the person to whom it was case at bar. In that case an express agent directed. It was held to be a larceny, be- had a package for Christiana Kube. John L. cause the servant had no authority to de- Kube, her husband, claimed the package for liver it to him, so that no property passed his wife, and by false representations induced to him but the mere possession feloniously the agent to believe that a mistake was obtained. So in this case the watchmaker made in the address of the package, and had no authority to deliver the watch to the thereby secured the absolute delivery of it defendant, and the latter obtained no prop- to him for his wife. It will be observed that erty in it, not even the qualified property the delivery to the defendant, John Kube, of a bailee, but a mere felonious possession, for his wife, was absolute, not coupled with which is the essence of the crime of larceny." any conditions or implied contract that he Wharton's Crim. Law, vol. 1, § 888, and would deliver the package to the true owner. cases cited. In Steen v. Harris, 81 Ga. 681, 8 Neither the defendant nor his wife were the S. E. 206, the rule is clearly and correctly owners of the package, but the agent parted


absolutely with the package, believing that defendant's wife was the owner of it, and that be bad delivered it to the proper person. The offense in that case consisted of false representations as to the true owner of the package, and the absolute dominion over the property was thereby obtained. In the case at bar the offense consisted of obtaining possession of the property for a particular purpose_that of delivery to the true owner, the shoe company. It may be said that the railroad company thought and believed that it was delivering the goods to a person who was authorized to receive it, and no doubt that was true; but the delivery by the railroad company to Rector was Bot intended to grant to him absolute dominion over the property, but was limited to a particular purpose that of delivery to the shoe company-who was known to the railroad company as the owner of the property. In other words, embodying one of the illustrations of Wharton, Rector says, “I am sent by the shoe company to get its goods," which was false, and thus obtained only possession of the goods for the purpose of delivering them to the shoe company. That is larceny, for the reason that the railroad company was only authorized and only intended to deliver a bare possession for the purpose of having the goods delivered to the consignee.

This brings us to the consideration of the second proposition—that the indictment is in. sufficient to support the judgment of conviction. This contention is predicated upon the failure of the indictment to charge that the property was stolen in Illinois and brought in. to this state. Section 2362 expressly provides: "In any such case the larceny may be charged to have been committed, and every such person may be indicted and punished in any county into or through which such stolen property sball have been brought." If the allegations contended for by appellant “that the property was stolen in Illinois and brought into this state” are essential to the validity of an indictment or information for such offense, it must necessarily follow that the provision of the statute wbich authorizes the charging of the larceny to have been committed in any county into or through which such stolen property shall have been brought is Toid, and of no effect. The statute, substantially, upon which the charge in this cause is based, was enacted by the Legislature at a very early period in the history of this state. This court at a very early period of its organization had in judgment the validity of this statute in the case of Hemmaker v. State, 12 Mo. 453, 51 Am. Dec. 172. Napton, J., in that case, after reviewing a number of causes in other jurisdictions, in which it was held that offenses of this character committed in other states or foreign countries were not cognizable in the courts of the state to which the property had been brought, said: “We are not under the necessity of

deciding the question which these cases present. Our statute was obviously intended to punish offenses committed against our criminal laws, and not those which were committed without jurisdiction of the state. If the Legislature think it expedient to declare that

son who is guilty of grand larceny in another state or country, and brings within our jurisdiction the stolen goods, shall be considered as guilty of grand larceny here, it is clearly within their constitutional power to make such enactment. In the determination of the character of the offense there is no necessity for inquiring what may be larceny under the laws of the country where the offense was committed. The Legislature punish the offense committed in this state by bringing the stolen property into it, and in doing so they merely codify a settled principle of the common law applicable to different counties, and extend it here to neighboring states and foreign countries. The case of People v. Burke, 11 Wend. 129, is an authority in point upon a statute exactly like our own." In State v. Williams, 35 Mo., loc. cit. 232, 233, this court again made reference to this statute, and very briefly thus stated its conclusions: “Whether the crime of larceny committed in one state can be transplanted with the goods into another state, so as to become an offense against and punishable in the latter state, is a mooted question, and has given rise to many conflicting opinions. But no such question can arise in this case, for it is expressly authorized by the third section of the ninth article of chapter 50 of our act relating to crimes and punishments. Rev. Code 1855, p. 637." Again, in State v. Butler, 67 Mo. 59, the validity of this statute was called in question, and its validity was maintained, and the conclusions as reached in the case of Hemmaker v. State, supra, were fully 'approved. In all three of these cases, in which there was a conviction by the trial court, the judgments were affirmed, and we have the original records now before us, and in none of them do the alle gations contended for by appellant that the property was stolen in another state and brought into this state appear in the indictment.

In the disposition of this proposition we might be content by simply announcing that the cases to which we refer must be treated as decisive of the question now under discussion. However, it may be further said in State v. Butler, supra, the case of People v. Williams, 24 Mich. 156, 9 Am. Rep. 119, is cited with approval, and gives full support to the correctness of the conclusions announced by this court upon this statute. The provisions of the Michigan statute upon this subject were substantially the same as

Judge Cooley, in that case, responding to the challenge to the validity of the statute, in an able, clear, and exhaustive discussion of the proposition, fully met and answered every contention urged against it.


After a careful and logical discussion of the jury that if “they believe and find from the purposes of the statute, and fully stating the evidence that the witness Rector had no inbroad grounds upon which its validity should tention to take, steal, and carry away the be maintained, the learned and distinguished property when he obtained it, then he was jurist then sums up his conclusions upon the not guilty of larceny, nor was the defendant question in judgment before him. He said: guilty of larceny." Upon the facts developed “Now, it may be true that this wrong would at the trial of this case we have reached not have been an offense within this state the conclusion that there was no error in the at the common law; but that does not pre- refusal of this request. The testimony as vent its being made so by statute. Many introduced by the state is undisputed that trespasses upon individual rights are made the witness Rector was the instrument sepunishable because the interest society has lected by the defendant to accomplish his in suppressing such disorders is such that fraudulent and felonious intent of stealing they may properly be treated as offenses the property as charged in the information, against society. The present is a

case of

and permanently depriving the owner of it. trespass upon private right, begun, indeed, He furnished the wagon, directed Rector how in another state, but continued into our own, to proceed in order to obtain this property, and which the paramount law of the land and upon the testimony as disclosed by the requires that we should see righted on de record the felonious intent and design entermand of the party aggrieved. The persist- tained by the defendant in this case is made ence in the wrong here, then, as against the too clear for discussion. Whatever was done right of one whom the state is bound to pro- by Rector must be treated as the act of this tect to the full extent that it must protect defendant, and, even though Rector's mind one of its own citizens, is not only not a was inactive, and he was ignorant of the matter of indifference to the state, but is a purposes of his act, if defendant, Mintz, diflagrant contempt of its authority; and it rected the act to be done, and had the is eminently proper that the state should felonious intent of stealing the property and treat it as a crime, if in the opinion of the converting it to his own use through the Legislature the peace and good order of the act of his instrument, Rector, then the act state demand its punishment. That such is of Rector and the intention of the defendant, its opinion is proved by the statute in ques- Mintz, should be brought together, and the tion." Whatever doubts may have been en- commission of the act must be treated as tertained as to the validity of this statute, though it was executed by the defendant, they are certainly removed by the clear and who directed it. In other words, if defendable discussion of the proposition by Judge ant, Mintz, entertained the felonious intent Cooley.

and design of stealing this property, and It is very earnestly urged and ably pre- directed Rector to do such acts as would sented that the failure to charge in the in- result in obtaining the property, without indictment that the property was stolen in forming Rector as to his intent, and by reaIllinois and brought into this state is mis- son of the commission of the act by Rector leading to the defendant, and does not com- the property is obtained and converted by ply with the provisions of the Constitution, the defendant, Mintz, to his own use, we which guaranties to him. the right to know are unwilling to say that this would not conthe nature and character of the charge pre- stitute larceny on the part of the defendant, ferred against him. In response to this ar- Mintz. İf Rector had no design or intent gument it is sufficient to say that when a to steal the property obtained by him at the defendant is charged with stealing property, time of taking such property, and he was and the property is described, even though simply, as claimed by appellant, carrying out it does not aver the particular place of the the purposes of the defendant, Mintz, without stealing other than the county or city in this any information as to what Mintz's purposes state to which the property is brought, seems were, then there is no difference in principle to us as rather a full notification of the na- in the use of Rector by the defendant as an ture and character of the charge, and is instrument to remove the property from the amply sufficient to require the defendant, in possession of the owner, and in using any order to meet such a charge, to summon to inanimate instrument in reaching out-such his aid proof of every nature and character, as tongs, pinchers, or other instruments—to in whatever state it may be found, to rebut remove the property sought to be stolen from such charge, and, if in possession of the its location. The defendant, Mintz, having property, to show that such possession was directed Rector in the commission of the act honestly acquired. We see no legal reason of taking the property, it must be held that for overturning the results of the cases here- the intent of defendant, Mintz, accompanied tofore referred to which were decided by this Rector in the commission of such act. court upon indictments similar in form to the We have carefully considered the instrucone in the case at bar.

tions given by the court upon which this This brings us to the only remaining prop- cause was submitted to the jury. They fully osition presented to our consideration; that cover every feature of this case to which the is, the refusal of the court to instruct the testimony was applicable, and, finding no reversible error upon the record as presented, gust Raphael was murdered in his own home the judginent of the trial court should be af. at No. 2213 South Tenth street, in the city of firmed; and it is so ordered.

St. Louis, between the hours of 11 a. m. and

1 p. m. on the 16th day of March, 1904. He GANTT, J., concurs. BURGESS, P. J. ab

was then 77 years of age, and his family, tent.

residing with him at that time, consisted of his wife 83 years of age, and their grand

son, Herman Raphael, about the age of 17 STATE v. HEUSACK.

years. The defendant, Henry Heusack, was (Supreme Court of Missouri, Division No. 2. the son-in-law of Raphael and his wife, and May 16, 1905.)

lived with bis wife and son at No. 1759 1. HOMICIDE-CORPUS DELICTI.

South Eighteenth street, in said city. HeuOn a prosecution for murder, evidence ex- sack was addicted to the excessive use of amided, and held to establish the corpus delicti.

intoxicating liquor, and was somewhat un2 SAME-IDENTITY OF MURDERER. The evidence held sufficient to identify de

der its influence on the day of the homicide. fendant as the murderer.

The house in which Raphael lived was lo3. WITNESSES-COMPETENCY-CONVICTION OF cated on the west end of a lot 25 feet wide CRIVE,

and extending from Tenth street on the east Under Rev. St. 1899, $ 4680, providing that

to the alley on the west. The alley runs any person who has been convicted of a criminal ozesse is, notwithstanding, a competent wit

north and south, and connects with Ann De <3, but that the conviction may be proved to avenue on the north and Shenandoah street afect his credibility, proof of a former convic- on the south. On the east end of said lot, tion for a misdemeanor is admissible. (Ed. Yote.-For cases in point, see vol. 50,

fronting on Tenth street, there was a buildCent. Dig. Witnesses, $ 1127.]

ing covering the full width of the lot, con4. CRIMINAL LAW-OTHER CBIMES.

sisting of three rooms. This building was l'nder Rev. St. 1899, § 4680, the state, on

owned by Rapbael, the deceased, and was u prosecution for crime, was entitled to ask the rented and occupied by a club of 12 or 15 defendant on cross-examination as to his previous conviction for crime in another state.

young men, who met there for social pur(Ed. Note.- For cases in point, see vol. 50,

poses two or three evenings each week. The Cent. Dig. Witnesses, § 1147.)

Raphael home fronted on the alley, and to 5. HowCIDE-INSTRUCTIONS.

the west. It was a one-story house, with a On a prosecution for homicide, where there basement. The basement was not occupied were po eyewitnesses of the killing, and nothing by the Raphael family. They lived in the to induce the jury to believe there were, an objection to a portion of a charge that it was not

first story, consisting of three rooms; the necessary to prove the defendant guilty by the front room being next to the alley, a door testimony of "the" witnesses who may have opening from it to the middle room on the seen the offense committed, on the ground that east, and a door from the middle room east it was an implication that eyewitnesses saw the defendant commit the crime, but that in the

to the kitchen. The kitchen and a kind of case at bar it was not necessary to bring them porch outside formed the east end of the into court, was hypercritical.

Raphael home. Between this east end of Appeal from St. Louis Circuit Court; Jesse the Raphael home and the west end of the A. McDonald, Judge.

building used by the club there was an open Henry Heusack was convicted of murder space from 30 to 50 feet in length. But in in the first degree, and he appeals. Affirmed. this space there was a shed on the south,

and an ash box, used as a flower bed, on the Chas. J. Maurer and Chas. P. Johnson, for appellant. H. S. Hadley, Atty. Gen., and

north; so that there was not much open John Kennish, Asst. Atty. Gen., for the

space left. This space is referred to by the State.

witness as the yard. There was a fence on

the north side of this property. Entering GANTT, J. The defendant was indicted the Raphael house from the alley (which at the April term, 1904, of the circuit court was the only way it could be reached from of the city of St. Louis, for the murder in the outside save by going through the clubthe first degree of August Raphael at said rooms) there were four or five steps up to city on the 16th day of March, 1904. The what was called a "gangway” or “aisle." cause was regularly assigned for trial to This gangway was about four feet wide, exdivision No. 8 of said court. The defendant tending along between the house and the was formally arraigned upon said indict- fence on the north side. There was an outer ment, and entered a plea of not guilty there- door to the front room on the east, and anto, and on the 10th day of May, 1904, was other outer door on the north of the kitchen put upon his trial, and convicted of murde: along this gangway. The gangway led from in the first degree. Motions for a new trial the alley back to the yard, and the members and in arrest of judgment were fled in due of the club sometimes passed back and forth time, heard, and overruled, and exceptions by that way. There was a door in the parproperly saved, and from the judgment pro- tition between the kitchen and the middle nounced the defendant appealed to this court. room, and another from the middle to the

The evidence upon which the verdict and front room. In the northwest corner of the Judgment are based was circumstantial, and front room there was a bed, in which the tended to prove the following facts: Au- old lady, Mrs. Raphael, was lying sick, bav

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