Walker v. State , 9 Ga. App. 863 ( 1911 )

Powell, J.

The prosecutrix asked the defendant to change a $5 bill. He took it, and stepped into a store as if to get the change, and then disappeared. Next morning, after a warrant had been sworn out for his- arrest, he came to the prosecutrix and told her that he was drunk on the day before, and that for that reason he failed to come back'with the change, and he gave her the money in silver dollars. The judge charged the jury that if the defendant took the money, and intended to steal it at the time, or if afterward, while he had it, he formed the intention to steal it, and carried it away and appropi'iated it to 1ns own use, he would bo guilty of simple larceny.

1.. It is well settled in this State that, when one person hands another money for the purpose of making change, the title does not pass, and the possession of the person io whom the money is handed is the possession of the owmer thereof ’ until the'change has boon made, arid that, if a person to whom money lias thus been banded takes it and carries it away Ay.ith an intent to steal it, he is guilty of simple larceny. Finkelstein v. State, 105 Ga. 617 (31 S. E. 589). A question is here presented which was not presented, in that case, however. Suppose that the person to -whom the hill is handed for the purpose of clinging it takes it without intending to steal it at the time, and then subsequently forms the intention to steal it, is the offense simple larceny ? Some of the language used in the course of the opinion in th| case of Buckine v. State, 121 Ga. 337 (49 S. E. 257), suggests that the court had this question in mind, but did not decide it. In Abrams v. State, 121 Ga. 170 (48 S. E. 965), it Avas held that AAdiere one borroAvs another’s property, with no intention, at the time, of converting it to his own use, a conversion thereafter, pursuant to a subsequently formed intent, is not simple larceny. iVs pointed out in Rice v. State, 6 Ga. App. 160 (64 S. E. 575), there is a difference between the cases wherein the defendant obtains the property as a result of a bailment, and Avliere he merely gains physical control.over it Avithout there being any change of legal possession. ‘ As Avas pointed out in the Finhelstein case above, there is no bailment and no change of legal possession, Avhere one person merely hands money to another to be changed; consequently in cases (¡f this character it is immaterial AAdiether the intention to steal Avas formed at the moment the money Avas handed over, or formed later, if the defendant, having the money in his temporary control, but not in his legal possession, and not having it for the purpose of •any bailment, forms an intention to steal it, and takes and carries it aAAray for that purpose, liis crime is simple larceny. There are similar cases in Avhich the crime may be both simple larceny and larceny after trust; but in these cases there must be a change of possession, in the nature of a bailment. Bryant v. State, 8 Ga. App. 389 (69 S. E. 121).

2. The court charged the jury that, though they should find that the defendant AvaS drunk, this would lie no excuse for the crime, if he really intended to steal the money. Chief Justice Jackson, in Bernhard v. State, 76 Ga. 613 (a prosecution for cotton stealing), says: “Cotton making, ginning, and packing would be a poor business in Georgia, if drunkenness excused a man.for stealing it,, .unless the prohibition of selling intoxicating liquors prevailed everywhere in the Stateyand if it did, plenty of rogues Avould get drunk on cider ¿nd ■ domestic,,wines in order to steal.” We think that counsel for the plaintiff im-nrior is correct when he asserts that a jury may consider the intoiiqation of the accused, for the purpose of explaining his conduct and 'determining Avhether he carried the money aAvay with an intent to steal it, or with mere lack of intention. i\. drunken man, coming into possession of another’s money, might put it in liis pocket and fail to return it to the OAATier simply because he Avas too drunk to act as a formal man would under the circumstances. He might even spend it, thinking in his drunkenness that it was liis own, when a sober man. would have known that it was another’s; and in such cases the drunken man’s conduct might be entirely exempt from any animus furandi. A drunken man might handle another’s property in such a way as that, if he were sober, the jury would believe he intended to steal it, and yet the jury, taking into consideration Lis drunkenness, might believe that lie did not intend to steal it. As thoroughly as we agree with counsel in his assertion as to these principles, we do not agree with him that the court erred in charging the jury that, if the defendant did intend to steal it, his drunkenness would be no excuse for-his crime. If the instructions of the court were not full enough upon this subject to satisfy counsel, he should have made a request for further instructions.

3. The evidence of the defendant’s intention to steal the money, in the light of his well-proved drunken condition, is somewhat weak and unsatisfactory; but it is not legally insufficient to support the verdict. Judgment affirmed.