State v. Vickery

19 Tex. 326

• Court: Texas Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Wheeler, J.

In order to constitute the offence of -detaining money, goods, &c., under false pretences,-it is essential that the owner should have intended to part with the right of property ; and it is this which distinguishes this offence from the crime of larceny, in cases of a constructive taking, where one, with a felonious intent to convert the goods to his own use, obtains possession of them by some trick or artifice, by which he acquires the possession only, but which has not the effect of transferring any right of property in the goods, from the owner to the party thus obtaining the possession. If there is clearly no change of property, nor of legal possession, but the legal possession remains exclusively in the owner, it will be larceny; but if a right of property passes, the offence is not larceny, but the obtaining of goods under false pretences. This distinction is clearly stated by Mr. Archbold in his treatise on Criminal Procedure, and illustrated by numerous cases in the text and notes to the sixth edition, under the title “ Larceny.” (2 Arch. Cr. Pl. 372.) In treating of the offence of obtaining money, &o., under false pretences, he says : “ In order to convict a man of obtaining money or goods under false pretences, it must be proved that they were obtained under, such circumstances, that the prosecutor meant to part with his right of property in the thing obtained, and not merely with the possession of it; if the prosecutor part with the possession only, and not the right of property, we have seen that the offence is larceny, and not an obtaining of money under' false pretences.” (3 Id. 467.) If, therefore, the offender be indicted for obtaining money or goods under false pretences, and it turns out on trial that his offence was larceny, he must formerly have been acquitted; but now, by the Statute 7 and 8 G. 4, c. 29, s. 53, it is provided that the offender shall not, by reason of such mistake, be acquitted of the misdemeanor. (Ib.) We have no such statute ; and the consequence is, that if it appear by the indictment that the offence, if any, is larceny, and the indictment be not sufficient to put the accused upon his trial for that offence, he cannot be convicted, and it will be proper to quash the indictment. It is not averred that the owner of the certificate and field notes, in this case, parted, or intended to part, with the right of property. This essential ingredient in the offence sought to be charged, is wanting". The indictment, therefore, is not sufficient to put the accused upon his trial for the offence of obtaining the certificate, &e., under false pretences. Nor is it sufficient to put him upon trial for larceny.

* (Id. 362, n ; 1 Hawk. c. 33, s. 2.) There was, therefore, no-error in quashing the indictment, and the judgment is affirmed..

Judgment affirmed.

It would seem that the indictment would be a good indictment for theft, under the Penal Code. (See Art. 745.)