Bussart v. State

176 So. 32, 128 Fla. 891, 1937 Fla. LEXIS 1344

Opinions

Buford, J.

I cannot agree that the judgment should be reversed in this case because I think that where one obtains possession of property by means of fraud or trickery with the preconceived design to appropriate the property to his own use, the taking amounts to larceny because the fraud vitiates the transaction and the owner is still deemed to retain constructive possession of the property. The conversion of it by the defendant is such a trespass to that possession as to constitute larceny.

In this case possession of the check was delivered to the accomplice of the defendant only because of the trickery and fraud practiced upon the maker of the check. It was not a voluntary delivery. “The consent of the owner in surrendering the possession of property must be as broad as the taking.” Jarvis v. State, 73 Fla. 652, 74 Sou. 796. See also Groover v. State, 82 Fla. 427, 90 Sou. 473.

In this case the check was delivered to Virgil Bishop, but was only so delivered because the maker of the check believed that the name of Virgil Bishop had been drawn from the can, while in truth and in fact the name of Mrs. G. A. Gooding had been drawn from the can; and except for the fraud and deception which was practiced upon the maker of the check by Pete Bussart, Morris Lamb and Virgil Bishop the check would not have been passed from the possession of the maker to Virgil Bishop, nor would the check or proceeds thereof have been converted to their own use by Bussart, Lamb and Bishop.

I do not think that this conclusion is contrary to the authorities cited in the opinion by Mr. Justice Brown in "support of the conclusion which is reached in his opinion.

I think the judgment should be affirmed.

Mr. Justice Brown’s opinion was written to be the opinion of the Court. Mr. Justice Buford prepared the above as a dissenting opinion and it was concurred in by other Justices as indicated. So it is the opinion prepared for Mr. Justice Buford becomes the controlling opinion and the opinion by Mr. Justice Brown becomes a dissenting opinion.

Judgment affirmed.

Ellis, C. J., and Terrell and Chapman, J. J., concur. Brown, J., dissents.