Opinion
May 26, 1950.
Appeal from the Criminal Court of Record for Duval County, Edwin L. Jones, J.
Lester E. Knight, in pro. per.
Richard W. Ervin, Attorney General and Murray Sams, Jr., Assistant Attorney General, for appellee.
The appellant has appealed from a judgment of conviction upon a charge of larceny of money alleged to have been the property of one Gertrude Caracena.
At the trial in which the judgment was rendered there was evidence to the effect that one Gertrude Caracena had been injured in an automobile accident. She had been treated for her injuries by her physician and was indebted to him in the sum of $1,000 on account of the services rendered. While the account was due and owing, the appellant fraudulently represented to Gertrude Caracena that he was a lawyer and could procure a full settlement of the account if she would give him $250 for that purpose. In reliance upon these representations, Gertrude Caracena purchased a cashier's check in the sum of $275 payable to the appellant and delivered it to appellant to be used solely for the purpose of discharging the obligation. The appellant cashed the check, retained the proceeds for himself, and never made an attempt to settle the claim for which the check was given.
The question is whether upon the evidence, of which we have given but the substance, the court was authorized in rendering the judgment from which the appeal has been taken.
It is well settled in this jurisdiction that one who obtains possession of an article by trick, device or fraud, with intent to appropriate the article to his own use, the owner intending to part with the possession only, commits larceny when he subsequently appropriates the article. Finlayson v. State, 46 Fla. 81, 35 So. 203; Sykes v. State, 78 Fla. 167, 82 So. 778; Groover v. State, 82 Fla. 427, 90 So. 473, 26 A.L.R. 373; McKinley v. State, 102 Fla. 632, 136 So. 380; Haynes v. State, 147 Fla. 713, 3 So.2d 385; Campbell v. State, 155 Fla. 359, 20 So.2d 127.
From the evidence submitted at the trial, the jury was authorized to find that the cashier's check was made out and delivered to the appellant solely because of the fraudulent misrepresentations made by him with respect to his occupation or profession and the use to which he proposed to put the proceeds. They were authorized to find, also, that at the time the appellant gained possession of the check and cashed the proceeds he did so with the preconceived fraudulent intent and design to deprive Gertrude Caracena of her money without consideration and to convert it to his own use. Under such circumstances the delivery of the check would not have been a voluntary delivery, for "the consent of the owner in surrendering the possession of property must be as broad as the taking." See Bussart v. State, 128 Fla. 891, 176 So. 32, 33.
Other grounds of appeal have been urged by the appellant but we fail to find the alleged errors reflected in the record and hence we must rule that the grounds are without merit.
The judgment appealed from should be affirmed.
It is so ordered.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.