People v. Edwards

—Defendant was convicted of the crime of grand larceny. He appeals from the judgment and from an order denying him a new trial. [1] He also appeals from an order denying his motion in arrest of judgment, but as that is not an appealable order the appeal therefrom must be dismissed.

By an information containing three counts defendant was charged with three separate acts of grand larceny. In the first count he was charged with the larceny of $500 on July 2, 1923; in the second count with the larceny of $250 on

An outline of the case, sufficient for an understanding of the points raised, may be stated thus: It was the theory of the prosecution that possession of each of the three sums of money was obtained from Mrs. Benoit by fraud and trickery. It seems that Mrs. Benoit’s husband and the latter’s brother had been arrested for grand larceny prior to the first act of larceny with which defendant was charged. Mrs Benoit’s testimony, epitomized and reduced to narrative form, is substantially this: I had known defendant for about nine years. A few days after the arrest of my husband and brother-in-law I called upon defendant at his home in Los Angeles. I told him that “the boys” were not guilty, and that I was worried over their arrest. I pleaded with him to help me. He said he would do the best he could, and would let me know later what could be done. At our first conversation defendant told me that it possibly would cost me something, but that he did not know how much. He asked me who the investigating officers were. I described them to him as well as I could. From the description which I gave he said that they were officers B-and K-. I saw defendant again the next day. At this second conversation he said he would be able to assist me, but that it would cost me $1,000. I told him I did not have that amount, but I managed to get $500 of it at that time and gave it to him. (It is this sum of $500 ■which is described in count one as the subject matter of defendant’s first alleged act of larceny.) I asked him how Jie was going to help me. He said that the case was in the hands of the investigating officers and that it would depend upon the evidence produced by them “as to how many counts and how much would be put against my husband. ’ ’ He said that “the less that was brought up against the boys the less they would have to answer for, or something to that effect.”

The next sum which Mrs. Benoit testified she gave to defendant—the $150- referred to in the third count—was delivered by her to him, according to the testimony of the People’s witnesses, under the following circumstances: Mrs, Benoit, it seems, had paid her husband’s attorney the sum of $250. When she paid the attorney, she told that gentleman that she needed the money—that she needed it to give to defendant. The attorney replied that if she really stood in need of the money he would pay it back to her in a few days. Accordingly, on July 27, 1923, the day of defendant’s arrest, the husband’s attorney, who meanwhile had revealed to the district attorney Mrs. Benoit’s intention to deliver the money to defendant, repaid to Mrs. Benoit an amount

Mrs. Benoit’s testimony regarding her last payment to defendant is substantially as follows: After receiving the $250 from my husband’s attorney I called defendant on the phone and arranged to meet him in front of the county jail. He arrived there in his automobile. When we met I asked him if I could keep $100 of the amount to pay some debts. He said I could, and I then delivered him $150 in bills—bills which I had received from my husband’s attorney.

Mrs. Benoit, it seems, delivered the bills to defendant while seated in his automobile with him. After handing the money over to him she stepped-from the ear, whereupon defendant drove a short distance from the scene, with the bills in his possession, when he was arrested by the officers. Defendant, testifying as a witness in his own behalf, denied that Mrs. Benoit had paid him either the $500 or the $250—-the amounts mentioned in the first and second counts of the information, and which, according to Mrs. Benoit’s testimony, were the first and second payments which she made to defendant on account of the total sum of $1,000 which she said she had agreed to deliver to him. As to the $150, defendant admitted receiving this sum from Mrs. Benoit on

Each of the two officers who had been deputed by their superiors to investigate the charges of larceny pending against Mrs. Benoit’s husband and brother-in-law testified that at no time did defendant approach him with an offer of a bribe to induce him to refrain from preferring additional charges against the two brothers.

Defendant put in evidence the court records of the proceedings in the cases pending against Mrs. Benoit’s husband and brother-in-law. These records showed that an information had been filed in the superior court against each of the accused whereby each was charged with the crime of grand larceny; that each of them pleaded not guilty to that charge, and that subsequently each was permitted to withdraw his plea and to plead guilty to petit larceny. A deputy district attorney was then permitted to testify, over defendant’s objection, that it was his duty to pass upon the dismissal of criminal cases and upon the reduction of -charges of higher offenses to charges of lesser degree; and that the reason why the charges against Mrs. Benoit’s husband and brother-in-law had been reduced from grand larceny to petit larceny was that the value of the property involved in the charges against the two brothers was found to be less than fifty dollars. Defendant objected to this testimony upon the ground that it was incompetent, irrelevant, and immaterial, and upon the further ground that the reduction of the charges occurred subsequently to defendant’s arrest and after the date when he is alleged to have committed the last act of larceny.

Appellant earnestly insists that, with respect to the $150 for the theft of which he was convicted, none of the essential elements of larceny was shown to exist. Because of the earnestness with which this claim is presented we shall take up each element of the offense and show how the evidence warranted the jury in inferring the existence of each essential ingredient 'of the crime.

[2] To constitute larceny the first essential is that there be a “taking.” (18 Am. & Eng. Ency. of Law, 2d ed., p. 468.) That is, the thing which is the subject of the crime must be taken from the possession of the owner into the

While it is true that Mrs. Benoit testified that she told appellant that'she expected sometime to compensate him for the efforts which she supposed he had made on behalf of her husband and brother-in-law, her testimony is to the effect that she did not give him the $150 as compensation for any services, but that she delivered that sum to him solely for the purpose of enabling him to carry out his representation that he could and would bribe the investigating officers.

That appellant’s representations were false, and that when he obtained possession of the money it was his intention to convert it to his own use and not to devote it to the purpose for which he ostensibly was receiving it, are facts which well may be inferred from the testimony of each of the investigating officers to the effect that at no time had appellant approached him with a corrupt suggestion. It will be recalled that Mrs. Benoit testified that appellant told her that these two officers were the men “who had entirely to do with the case against my husband and brother-in-law, and that what they said went.” These facts warrant the inference that the possession of the $150 was obtained by appellant from Mrs. Benoit by fraud, with a preconceived design not to devote the money to the purpose for which it was delivered to him but to convert it to his own use—in short, that there was a “taking,” within the law of larceny.

[8] The second essential element in the crime of larceny is the asportation of the thing which is the subject matter of the offense. (18 Am. & Eng. Ency. of Law, 2d ed., p. 496.) That is, the taking must be followed by such a carrying away

[10] Appellant strenuously insists that the evidence affords no warrant for the implied finding of a conversion. With this contention we cannot agree. After having accepted the money, appellant put it in his pocket and drove away from the scene. As we have pointed out, there is evidence to support the implied finding that at the time when he acquired possession of the money he took it with the preconceived intention to convert it to his own use. He was, therefore, a wrongdoer from the beginning, and in contemplation of law the wrongful act was continuous. [11] In cases such as this, where the possession was originally obtained by fraud or trickery, the wrongdoer holds the property • all the while without right, and against the right and without the consent of the owner. (State v. Coombs, 55 Me. 477 [ 92 Am. Dec. 610 ].) There is nothing to indicate that appellant experienced a change of heart after he received the money—there is nothing to indicate that his intention to convert it to his own use ever wavered. The reasonable inference is, therefore, that when he received the money into his possession he took it and carried it away with the intention to keep it as his own. The conversion w'as then complete. It matters not how short the interval may have been between the manual taking of the money and its conversion to appellant’s use. In fact, these acts were

[13] The third essential element in the crime of larceny is that the thing taken and carried away should be the property of another. (18 Am. & Eng. Ency. of Law, 2d ed., p. 498.) That is, someone other than the taker must have in the thing taken a general or special property right which is invaded by the trespass committed in the taking. [14] Considered as an element of larceny, “ownership” and “possession” may be regarded as synonymous terms; for one who has the right of possession as against the thief is, so far as the latter is concerned, the owner. (36 C. J., p. 757.) [15] Since appellant acquired possession of the money by fraud and chicanery, he held it all the while without right, and as against him Mrs. Benoit had the right of possession. (State v. Coombs, supra.) It is of no consequence that the legal title to the bills was in the county. The actual status of the legal title to the stolen property is of no concern to the thief. Mrs. Benoit’s possession, though the bills may have come into her hands illegally, was sufficient to make them the subject of larceny, and the ownership was properly laid in her. (State v. Pigg, 80 Kan. 481 [18 Ann. Cas. 521, 103 Pac. 121 ]; 36 C. J., p. 758.)

[16] The fourth and last essential of larceny is the felonious intent. (18 Am. & Eng. Ency. of Law, 2d ed., p. 500.) That is, the taking and carrying away must be with an intent, without claim or pretense of right or justification, to deprive the owner of his property wholly and permanently. (Id.) And where, as here, no actual trespass or act of violence is involved in the original taking, the felonious intent

Our conclusion from the foregoing is that the evidence was sufficient to warrant the jury in finding the existence of each and every element of the offense charged against appellant in the third count of the information.

[18] It is earnestly urged that the verdict of guilty on the third count is repugnant to and wholly inconsistent with the verdicts of not guilty on counts one and two, and that, therefore, the verdict on the third count is contrary to law. We cannot accept the contention thus earnestly made. The several counts in the information relate to three separate and distinct transactions—transactions which were alleged to have occurred on different dates and to involve the theft of different sums of money. It may be conceded, for the purpose of the argument, that under the evidence the jury had as much reason for finding appellant guilty on the first and second counts as it had for finding him guilty on the third; but even so, the fact remains that the evidence was sufficient to justify the verdict on the third count, and we must conclude that the jurors were convinced of his guilt thereon. If the jurors paltered with their oaths and with the law they must make their own peace with conscience. If appellant was wrongfully acquitted on the first and second counts the error was in his favor, and he cannot be heard to complain. The fact that the jurors relieved him on two counts does not oblige this court to relieve him on the third. (State v. Hund, 115 Kan. 475 [ 222 Pac. 766 ]; State v. Brown, 114 Kan. 699 [ 220 Pac. 174 ]; State v. Brundige, 114 Kan. 849 [ 220 Pac. 1039 ]; Weinecke v. State, 34 Neb.

[20] It is claimed that the superior court had no jurisdiction to try appellant on the offense charged in the third count for the reason that when the information was filed, October 13, 1923, section 487 of the Penal Code had been so amended that, when read in connection with the following section, the theft of property the value of which does not exceed two hundred dollars is declared to be petit larceny. The offense of which appellant was found guilty was committed prior to August 18, 1923, the date when the amendment became effective. On July 27, 1923—the date when appellant committed larceny of the $150—the crime was grand larceny; for section 487, as it then read, made it grand larceny to steal and carry away property having a value in excess of $50. Therefore, at the date of the commission of the offense charged in the third count the theft of the bills was a felony punishable by imprisonment in the state prison

[22] It is claimed that the court erred in permitting the deputy district attorney to testify as to his reason for reducing the charges of grand larceny against Mrs. “Benoit’s husband and brother-in-law to charges of petit larceny. It is urged that this testimony was irrelevant and immaterial. The objection is based upon the assumption that appellant’s representations to Mrs. Benoit amounted to no more than statements that he would use the money to prevent the filing of additional charges, and not that he would use it to bring about a reduction of the charges then pending. But Mrs. Benoit, as we have shown, testified that appellant told her “that it would depend entirely upon the evidence produced by the investigating officers as to how many counts and how much would be put against my husband,” and that “the less that is brought up against the boys the'less they would have to answer for”; also that he told her that he would try “to get the boys out of jail entirely.” This testimony warrants the inference that appellant intended that Mrs. Benoit should understand him to mean that he would

[23] It is claimed, however; that the testimony is objectionable upon the further ground that the reduction in the charges was made subsequently to appellant’s arrest and after the date when he was alleged to have committed the last act of larceny. There is no merit in this contention. If the money had been applied by appellant to the purpose for which he ostensibly received it, and if as a result thereof he had corruptly brought about the acceptance of pleas of guilty to the lesser charges, it would be possible for his initial act of corruption to have occurred long before the men were permitted to plead guilty to petit larceny. If the district attorney’s acceptance of these pleas had in fact resulted from appellant’s corrupt use of the money, the train of events which led thereto might readily have been put in motion by an act of corruption initiated by appellant, and, so far as he is concerned, consummated by him, long before his arrest and prior to the commission of the last act of larceny with which he was charged.

[25] We find no prejudicial error in the rejection of the instructions requested by appellant. The first refusal of which appellant complains is that of an instruction to the effect that if the jurors believed that Mrs. Benoit gave defendant the $150 in recognition of his efforts in her behalf, they should find him not guilty. That appellant would be entitled to an acquittal if the money was intended to compensate him for any aid which he may have rendered Mrs. Benoit is a proposition which must be apparent to every person of common intelligence and experience. [26] It is not reversible error to refuse an instruction which merely directs the attention of the jury to that which every intelligent man or woman on the panel would doubtless keep in mind without being reminded of it by the court. (8 Cal. Jur., p. 631.) Moreover, the substance of the requested instruction was set forth in the court’s charge, the jury having been expressly instructed that it would not be larceny if defendant received the money from Mrs. Benoit pursuant to a promise that she would pay him for his efforts in behalf of her husband.

[27] Appellant requested, and the court refused, an instruction to the effect that if the prosecuting witness gave the money to defendant “with the understanding that he was to do with it as he saw fit in accomplishing the desired purpose,” then it must be held that she intended to pass the title, and in that event defendant could not be found guilty of larceny. This requested instruction is not a rigorously accurate statement of the law. It does not necessarily follow that the title would pass to appellant if the money was given to him “to use as he saw fit in accomplishing the desired pur

[28] Appellant requested an instruction to the effect that if Mrs. Benoit gave him the money to prevent the filing of additional complaints against her husband and brother-in-law the jury had the right to consider that fact and the further fact that no additional criminal complaints were filed, and that if the consideration of these two circumstances raised a reasonable doubt in their minds as to defendant’s guilt he should be acquitted. This instruction was calculated to mislead the jury, whose duty it was to consider, not alone the circumstances especially singled out and specifically referred to in the requested instruction, but every circumstance in the case which might have a legitimate bearing upon the question of whether appellant had secured possession of the money by fraudulent representations. The requested instruction is based upon the erroneous notion that appellant’s representations, as testified to by Mrs. Benoit, amounted to no more than statements bjr him that he would use the money to prevent the filing of additional charges. Appellant erroneously assumes that his representations, as testified to by the complaining witness, entirely excluded any idea.that he was to use the money to secure a reduction in the pending charges. But, as we already have pointed out, the complaining witness testified that appellant told her that “the less that was brought up against the boys the less they would have to answer -for ’ ’—language well calculated to lead Mrs. Benoit to believe that it was appellant’s intention to use the money to bring about a reduction of the pending

[29] Another of the instructions requested by appellant, but refused by the court, would have charged the jury to the effect that accusatory statements made in the presence of an accused which are not denied by him are admissible in evidence solely for the purpose of enabling the jury to know his attitude in the face of such statements, and that such statements, are not evidence of the truth of the matters stated therein. As an abstract proposition, this part of the requested instruction is a correct statement of the law. The vice of the instruction is in its concluding sentence, where we find these words: “Therefore, I instruct you that if the denial by the defendant of the accusatory statements made in his presence, taken in connection with all the other facts and circumstances of the case, create a reasonable doubt in your mind, then you should acquit the defendant.” This language assumes a fact not borne out by the evidence. It implies that appellant denied all of the accusatory statements made in his presence. Such, however, is not the ease. Some, at least, of the statements made in his presence were neither admitted nor denied by him. When asked what he had to say as to some of them he replied, “I have nothing to say.”

[30] Appellant requested the court to give an instruction to the effect that if Mrs. Benoit, before testifying in the case, had been informed by the district attorney that she had committed a felony for which she could be sent to the penitentiary, that fact could be considered by the jury in weighing her testimony; and that “if, from a consideration of such statements, if you find such statements were made, or a reasonable doubt is aroused in your mind as to the guilt of the defendant, then you should acquit Mm.” If this language means anything it means that the defendant should be acquitted under either of these two alternatives: (1) if the jury found that such statements were made to Mrs. Benoit by the district attorney; or (2) if a reasonable doubt be aroused in the jurors’ minds as to defendant’s guilt. Manifestly, appellant would not necessarily be entitled to an acquittal if the jury found the first alternative to be true. The mere fact that Mrs. Benoit had been advised by the authorities that she had committed a crime and was threatened with punishment therefor would not necessarily invalidate all

We find no substantial error in the record. Appellant had a fair trial, and there is sufficient evidence to support the verdict.

The appeal from the order denying defendant’s motion in arrest of judgment is dismissed. The judgment and the order denying a new trial are affirmed.

Works, J., and Craig, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 28, 1925.

All the Justices concurred.