Commonwealth v. Schang

Opinion op the Court by Chiep Justice Settle— Affirming. The grand jury of Jefferson county found and returned an indictment against the appellee, L. Schang, containing two counts; the first charging him with the crime of grand larceny, and the second with the crime of obtaining money and property by false pretenses. A demurrer was filed by appellee in the court below to each of the counts of the indictment, and was sustained by that court as to the first and overruled as to the second. From so much of the judgment as sustained the demurrer to the first count of the indictment, the Commonwealth has appealed. The first count of the ihdietment is in the following words: “That the defendant, L. Schang, in the county of Jefferson, and before the finding of this indictment, did feloniously steal, take, and carry away one hundred and fifty dollars ($150.00) in. currency of the United States, National Bank notes, or treasury-notes, the exact description of which is to the grand jury unknown, the property of George Ke'eley and William Keeley, doing business as Keeley and Brother; that the defendant, L. Schang, did on or about the 6th day of September, 1906, come to the said George Keeley, a member of said firm of Keeley and Brother, and represent and state to him that, — 408 — whereas Dr. S. A. Bradley, then live stock inspector of the city of Louisville, a ministerial officer authorized by law to inspect and condemn meats in the city of Louisville, had condemned a lot of hams belonging to said firm as unfit for sale as human food, and that the said Keeley and Brother, were about to be indicted before the grand jury, and that he could fix up-the matter with- Dr. Bradley and prevent the indictment and fix everything all right for $150.00; that said sum was to be used as a bribe to said Bradley and to be delivered to Mm; that thereupon the said George Keeley delivered to said defendant a cheek of Keeley and Brother upon the Western National Bank, a corporation organized to do a banking business, in the pity of Louisville, by which the said bank was ordered to pay to the order of George Keeley the sum of $150.00, and the said George Keeley indorsed said check and delivered it to the said defendant, Schang, who afterwards indorsed the same and obtained the money thereon at the said Western National Bank, to wit: the sum of $150.00; that the statements of said Schang were tricks and devises and pretexts and artifices resorted to by him for the purpose of obtaining the said check, and that said check, or the proceeds thereof, was never delivered to the said Bradley; that the sum of $150.00 was obtained by the defendant by tricks and artifices and the said Keeley and Brother were induced to part with the possession thereof to be delivered to the said Bradley, and the said defendant at the time intended to feloniously convert the same to his own use and permanently deprive the owners thereof of their property and did take and fraudulently obtain the said check hy said tricks and artifices and thereby feloniously obtain said money and appropriated it to his — 409 — own nse, feloniously and with the intent to deprive the owners thereof, said money belonging to and being the property of said Keeley & Brother, contrary to the statutes and against the peace and dignity of the Commonwealth of Kentucky.” It will be observed that the facts recited in the first count of the indictment as constituting the crime of grand larceny are, in substance, that appellee represented to one of the firm of Keeley & Bro., meat dealers that S. A. Bradley, live stock inspector of the city of Louisville, had condemned as unfit for human consumption a lot of hams owned by the firm and for having which the grand jury was about to indict the firm; that he (appellee) could settle the matter with Bradley for $150, and thereby prevent the firm from being indicted; that the member of the firm of Keeley & Bro. to whom appellee made these • representations thereupon delivered the check of the firm for the above amount to appellee, who obtained the proceeds thereof, feloniously intending to convert the same to his own use, and did so convert it, and, further, that appellee did not deliver the check or its proceeds to Bradley, and that his statements to the member of the firm of Keeley & Bro. were tricks, devices, and artifices employed by appellee to obtain the check and money. It will also be observed that the indictment does not charge that the representations of appellee upon which it was alleged he obtained the $150 were false. If it was true as represented by him that Bradley, as live stock inspector, had condemned the hams, and the grand jury were about to indict the firm of Keeley & Bro. for having them for sale, and that Bradley was willing to prevent the indictment for $150, how can it be said that what appellee represented to the giver of the check was a trick, device, — 410 — or artifice to obtain tbe check 1 It will further be observed that the indictment 'also fails to allege that Bradley did not prevent the grand jury from «indicting Keeley & Bro.; and while it is alleged that appellee did not deliver the check or its proceeds to Bradley and that he converted both to his own use, it does not charge that this was not done with Bradley’s consent, or that his failure to deliver the check or money to Bradley was not at the instance, or direction pf the giver of the check. In view of the omission from the indictment of these averments of fact essential to constitute the crime attempted to be charged by the first count, we must conclude that' the indictment was fatally defective. We are further of opinion that on yet another ground the indictment-must be held fatally defective. The facts alleged show that the giver of the check willingly parted with the title thereto and its proceeds, as well as the possession. Where the owner of property merely parts with the possession for a particular purpose, and the person who received the possession avowedly for that purpose has at the time a fraudulent intention to make use of the possession as the means of converting the property to his own use, and does so convert them, it is larceny. 1 Wharton, Crim. Law, section 886; Commonwealth v. Williamson, 96 Ky. 1, 16 Ky, Law Rep. 197, 27 S. W. 812, 49 Am. St. Rep. 285. The doctrine in question is thus stated in Roberson’s Criminal Law, section 417: “But if a person, with the intent to steal, obtains the actual possession of property, though by delivery of the owner or an agent authorized to transfer the ownership therein, and the latter intends to part with the possession only and not the right of property, the taking in this — 411 — manner in pursuance of the felonious intent will constitute larceny. * * *” Smith v. Commonwealth (Ky.) 112 S. W. 615. But a different rule applies when the owner parts under such circumstances with the right of property. An excellent statement of the latter rule is contained in the case of Miller & Smith v. Commonwealth, 78 Ky. 15, 39 Am. Rep. 194, wherein the court, speaking through Judge Cofer, said: “The rule as stated by Russell (2 Russell, 29) and approved by this court is that if, by 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 propertyr'in them also, the offense of the party obtaining, them will not be larceny, but the .offense of obtaining goods by false pretenses.” Elliott v. Commonwealth, 75 Ky. 176. Applying this test to the case before us, we have only to ascertain-whether the firm of Keeley & Bro. parted with their right of property in the money for which the cheek to appellee was given. Of this we think the language of the indictment leaves no doubt. There was no retention of ownership or possession by the giver of the check at the time of its delivery; on the contrary, the transfer and delivery of both title and possession was actual and absolute. Appellee neither promised, was required or expected to return the check, its proceeds, or any part thereof in the event Bradley should refuse to receive it. If the transaction were proved as alleged in the first count of the indictment, it would show an attempt on the part of the giver of the check to bribe a municipal officer of the city of Louisville, while the same transaction, if proved according to the facts alleged in the — 412 — second count of the indictment, would show appellee guilty of obtaining money by false pretenses. Being of the opinion that the lower court did not err in sustaining the demurrer to the first count in the indictment, the judgment is affirmed.