Supreme Court of South Carolina, 1918

State v. Sanders

Supreme Court of South Carolina · Decided June 22, 1918 · Watts

96 S.E. 622; 110 S.C. 487; 1918 S.C. LEXIS 75 (South Eastern Reporter)

Counsel

Messrs. B. Frank Kelley and Thos. H. Tatum , for appellants. Mr. Tatum submits: That the possession of the property having been legally obtained, an indictment for larceny will not lie: 88 S.C. 315 ; 25 Cyc. 22; 12 A. E. Enc. Laws 770; 25 Cyc. 26-29. A copartner cannot be convicted of larceny after breach of trust committed with reference to partnership property: 10 S.C. 241 . The contract in this case was one of partnership and did not create the relation of master and servant: 75 S.C. 108 ; 145 U.S. 617 ; 68 S.C. 198 ; 72 S.C. 427 . The contract in the case at bar is different from those held to create the relation of master and servant, in the following cases: 52 S.C. 580 ; 6 S.C. 297 ; 15 S.C. 82 ; 18 S.C. 510 ; 15 S.C. 548 . An allegation that the property stolen was the property of Colonel Wilson, and the proof showing that it was the property of Col. Wilson and Charley Sanders, the variance is fatal: 10 Rich. 169; 3 S.C. 230 . Mr. Solicitor, F.A. McLeod , and Messrs. McLeod Dennis , for the State, respondent, submit: That there was a felonious taking: Cyc., vol. XXV, p. 29. The contract in this case created the relation of master and servant, and did not constitute a partnership: 15 S.C. 548 ; 75 S.C. 109 ; 15 S.C. 82 ; 52 S.C. 580 .

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Watts.

*490 Defendants, Charley Sanders and Harrison Sanders, were indicted for grand larceny and Alec Holmes for receiving stolen property in the same indictment. The case was tried at the September term of Court, 1917, for Lee county, before Judge Gary, and a jury, and resulted in the conviction of all the defendants. After sentence defendants appeal, and by four exceptions seek reversal.

At the hearing in this Court exception 1 was abandoned. The second exception raised the question that there was no-felonious taking. The third exception raised the question whether the contract involved in the case was one of partnership or established the relationship of master and servant. The fourth exception complains of error on the part'of his. Honor in not directing a verdict in favor of defendants on the ground of fatal variance between the allegation in the indictment and the proof. The fifth exception complains of error in charging the jury that the contract introduced in evidence did not create a partnership between Col. Wilson and Charley Sanders, but made them share croppers, and that if the share croppers who took and carried, away any part of the crop with a view of stealing it would be guilt)*- of larceny, whereas, he should have charged that the contract was one of partnership, and that the defendant, Sanders,, could not be guilty of larceny for disposing of the crop. The exceptions must be overruled.

1, 2 The contract introduced in evidence made Wilson and Sanders, not partners, but share croppers, and the whole-crop belonged to Wilson until he settled with Sanders. There is nothing in the contract that made the parties agents of each other to do anything in reference to-the business under their contract, and the evidence-shows beyond doubt that the possession and custody of all the crops grown .was in Wilson, and Wilson allowed it to-be stored .temporarily with the defendant, and defendant, Sanders, had no right, title or interest in the same until Wilson made settlement with him, and that the taking by him- *491 of the property and disposing of it was without authority in law, and his Honor committed none of the errors as complained of by the exceptions.

Judgment affirmed.

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