People v. Berlin

9 Utah 383

• Court: Utah Supreme Court
• Decided: January 15, 1894
• Status: Published

Opinions

ZANE, C. J. :

The defendant was convicted of grand larceny. The only question presented is whether or not the evidence justifies the verdict because the exception to the charge is wholly insufficient, On the trial the prosecution introduced evidence tending to prove that she stole $100 from Lena Wright, and the defendant introduced evidence tending to prove that she entered into a conspiracy with Lena Wright to kill one Mrs. Morris, for the consideration of $100, and that she caused a false statement to be' published in a newspaper to the effect that Mrs. Morris had died of heart disease, which she showed to Mrs. Wright who relied upon .the statement and paid her the $100 alleged to have been stolen. The prosecution introduced evidence tending to' rebut this evidence offered by the defendant. The court charged the jury and the defendant excepted generally to the charge, but excepted to no particular part. And, although .we notice the point because counsel have argued it in their briefs, and have overlooked the fact that the •exception was not specific, we do not wish to be understood as saying that the charge can be reviewed on such an exception.

The jurors might have understood from one part of the charge, without the qualification that followed, that they might find the defendant guilty of larceny, though Mrs. Wright paid her $100 intending to transfer both the possession and title, if such transfer was induced by her fraudulent representation and pretenses, . The qualification was: “But if the money was delivered to the defendant by the owner’s consent in pursuance of a' previous agreement, or if it was voluntarily delivered to defendant, the ■owner intending to part with the possession and title to it, then there was no larceny even if fraud was established.in obtaining it.” We understand this to be a correct statement of the rule applicable to such fraudulent transactions, however the ingenuity of rogues may vary the facts in particular cases.

If the owner of personal property is induced by fraudulent representations to part with its possession intending also to part with the title, the transaction cannot be larceny. But if the person receiving the possession without the title has at the time a secret intention of converting it permanently to his own use and does so without the consent of the owner, he commits the crime of larceny.

After a review of the cases, Bussell states the - law as follows: “The correct distinction in cases of this description seems to be that, if by means of any trick or artifice the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner part with, not only the possession of the goods but the right of property in them also, the offense of the party obtaining them will not be larceny, but the offense of obtaining goods by false pretenses.” 2 Russell on Crimes 200 (9 ed.). To the same effect are: Lewis v. The Commonwealth, 15 Sergeant and Rawle, 93; Commonwealth v. Eichelberger, 119 Pa. State, 254; 2 Bishop on Criminal Law, sec. 918; The People v. Shaw, 57 Mich. 403. Though a part of a charge considered alone might mislead a jury, that will not be reversible error if when the whole is considered the law of the case is stated with sufficient certainty and clearness. We do not believe that the jury was misled as to the law of this case by the charge of the court, and as only a general exception was taken to it, we have gone a great distance in even noticing the objection.

A number of requests to charge were asked by the defendant, but the law applicable to the case, so far as it was necessary to state it to the jury, was embraced in the charge of the court. None of the refusals were excepted to by the defendant. The bill of exceptions shows that the evidence on every point was conflicting. The jury from their verdict evidently believed the testimony of the prosecution. Judgment is affirmed.

BaRTCH, J., concurred.