People v. Schenone

BURNETT, J.

The defendant, having been convicted of grand larceny, appeals from the judgment and the order denying his motion for a new trial.

The principal contentions of appellant are that the court erred in the matter of instructions and that the defendant was entitled to an acquittal, for the reason that the offense, if any, was that of obtaining money by false pretenses instead of grand larceny.

Appellant concedes that “It would be very difficult for us to point out the specific particulars wherein the instructions prejudice the substantial rights of the defendant.” As might be expected from this statement, we find no less difficulty in the premises. The point to which special attention is directed, that is, the importance of instructing the jury clearly in reference to the distinction between these two different offenses received due consideration from the court. For instance, it was declared: “The distinction which the law makes between larceny and obtaining money by false pretenses turns on the question of title. If, when the taking is consummated by the use of trick, artifice or device, the complaining witness, being deceived by the acts or representations of the defendant, parts not only with the possession, but also with the title to his property, the offense is that of obtaining property by false pretenses; but if the complaining witness only parted, and intended only to part, with the possession of his property, and not with the title, the offense is larceny.” This proposition

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was somewhat elaborated in other instructions, and the jury were expressly charged that “The burden is upon the prosecution in this case to prove the offense charged, and if the prosecution fails to prove that the defendant committed the crime of larceny, even though the evidence may tend to prove some other offense, you must find the defendant not guilty, and if you believe from the evidence that at the time the complaining witness, G-. Saloni, parted with the possession of the $137, he also at the same time parted with the title to the same", although the same was induced by fraud, misrepresentation or artifice on the part of the defendant,, nevertheless I instruct you to acquit the defendant.” Indeed, the jury were fully and correctly instructed upon every phase of the case necessary for their enlightenment, and no error was committed in refusing certain instructions proposed by the defendant.