dissent">

*49DISSENTING OPINION

By SKEEL, PJ:

The defendant was indicted, tried and found guilty on seven counts charging larceny by trick, as defined by §12447-1 GC. From such judgment of guilty, the defendant brings this appeal on questions of law to this Court claiming the following errors:

“1. The court erred in overruling defendant’s motion to quash the indictment.

“2. (a) The court erred in overruling defendant’s motion to quash, based upon the vagueness, indefiniteness and uncertainty of §12447-1 GC.

“(B) The court erred in overruling defendant’s motion for a new trial.

“(c) The court erred in overruling defendant’s motion in arrest of judgment.

“3 (a) Misconduct of the prosecuting attorney in the presence of the jury.

“ (b) The court erred in overruling motion of defendant for leave to withdraw a juror, based upon said misconduct.

“4 (a) The court erred in the admission of testimony offered by the state over objection, thereby denying defendant’s constitutional rights guaranteed him under Art. I, Sec. 10 Ohio Constitution.

(b) Prejudicial remarks of the court in the presence of the jury.

5. The court erred in excluding testimony offered by the defendant.

6. (a) The verdict is manifestly against the weight of the evidence and is contraía to law.

(b) The court erred in overruling defendant’s motion for a directed verdict at the close of the state’s case and renewed at the close of all the testimony.”

The defendant was engaged in the building and real estate business and prior to 1947 had built more than 150 dwelling houses in the Noble Road-Mayfield Road section of Greater Cleveland. During the conduct of this business he had taken title to some two or three hundred lots in a subdivision known as Bexley Park, which was located on the east side of Warrens-ville'Center Road, south of Mayfield Road and opposite the Oakwood Golf Club course. This transaction took place some time in 1944. In taking title to these lots, he, as a part of the financing of such purchase, gave a blankket mortgage *50to one Anthony Mutillo for a consideration of $3000.00. This mortgage is noted on the certificate of title on the lots involved in this case as being a debt obligation of $7500.00. At the time of the purchase of said subdivision by defendant there was then several years of delinquent taxes due on each of the lots.

The defendant’s building operations seemed to have progressed without difficulty until the latter part of 1946 and the early part of 1947, when, according to the undisputed evidence, a number of houses then under construction were taken over and finished under the supervision of the loan company that had granted a construction loan for the building of such houses and the defendant by his own testimony acknowledged that he was in financial difficulties.

The first count charged that the defendant unlawfully obtained possession of $1000.00 from Lionel A. and Edith Silver-man by false and fraudulent representations and pretenses with intent to permanently deprive the said Lionel and Edith Silverman of said money.

The Silvermans in response to an advertisement of defendant offering to build residence property, called at defendant’s place of business on Noble Road. The defendant displayed plans and gave other information concerning his building operations on lots which he owned in Bexley Park. The Silvermans after a second visit entered into a contract for the purchase of a house to be built on sublot 478 located on Wandsworth Road in Bexley Park, for the sum of $10,300.06. The Silvermans testified that defendant promised that he would start the building within two weeks and that it would be completed within three to six months. At the time this contract was signed, the defendant demanded and received $1000.00 from the Silvermans. The Silvermans wanted to make such down payment in escrow but defendant demanded that it be paid to him. There was, at the time this contract was entered into, $536.66 delinquent taxes against the lot. The defendant represented that he was the owner of the Bexley Park Subdivision.

Defendant never started the work of building the house. At some time shortly after the contract was entered into, he made an application for a construction loan at The South Euclid Savings & Loan Company. This loan was finally approved by the savings & loan company but the Silvermans refused to sign it because of the failure of defendant to proceed. He had, on several occasions prior to the approval of the loan, met the Silvermans and when asked why he had not started the work, his excuse had to do with shortage of *51labor and materials. It was never suggested to the Silver-mans by the defendant that if a construction loan Was to be had, no work in furtherance of the contract to build could precede the filing of the construction mortgage for record.

The Silvermans finally demanded the return of their money which defendant agreed to do and after having defaulted on several promises, he told them they would have to extend him more time as he was “financially embarrassed.” The Silvermans did not get any of the down payment back. No work of any kind was ever done toward the construction of the house and the lot has since been sold at sheriff’s sale for nonpayment of taxes.

The second count of the indictment involves the sale of sublot 480 to Gabriel Burgio, following very closely the same pattern as was used in the Silverman transaction. This contract was entered into on Mar. 31, 1947. Burgio testified that defendant, prior to inducing him to make a down payment of $1000.00, represented that the house would be finished in September, 1947; that the lot was free from taxes (at the time this representation was claimed to have been made, there was about $500.00 delinquent taxes due thereon), and that he would take care of the necessary financing at the bank. (The defendant’s evidence is to the effect that he agreed to pay up the delinquent taxes.) Nothing was said that would even suggest that the financing must of necessity precede the starting of the work of building the house. Considerable effort was expended by defendant in trying to get a mortgage loan. When all efforts to finance the building had failed and the work did not proceed as defendant had promised, this witness refused to pay the additional part of the down payment of $2000.00 and demanded his mbney back. Defendant was then without funds and he met this witness’s demand for a return of the $1000.00 by a statement that he was in “financial difficulties” and thereupon gave him a promissory note, no part of which has ever been paid.

The third count of the indictment was concerned with the sale of sublot 344, together with a promise to build a house thereon for Mr. J. Trevor Guy. The contract was dated July 15, 1946. This sublot was not owned by defendant, nor did he have control over the right to sell it, or make any effort to secure such right after representing to Guy that he was the owner. With this additional fact, the transaction conformed to the same pattern as described in the other counts of the indictment, with the additional fact that Mr. Guy received a return of $200.00 of his $1000.00 deposit. The application for the construction loan of $7775.00 which de*52fendant was to arrange for, was not made by him until April 17, 1947. It was later approved by The South Euclid Savings & Loan Company.

The fourth count of the indictment concerned the sale of sublot 288 with the agreement that defendant would build a house thereon for Mr. Selden of Cincinnati. This contract was entered into on March 1, 1947. The purchaser paid $1000.00 down and made application at The South Euclid Savings & Loan Company for the necessary financing. The savings & loan company before approving the loan of $9500.00, instead of $10,000.00 requested, leaving a deficit of $500.00, notified Selden that there was $911.20 delinquent and unpaid taxes which had to be paid in full before complete approval could be had. The defendant agreed that it was his obligation to pay these taxes. He failed to pay any part thereof. Mr. Selden, upon signing the application for the necessary construction loan, deposited over $3000.00 with the bank, in addition to the $1000.00 deposited with defendant. The defendant’s failure to meet any of the requirements to proceed with the contract or pay the back and delinquent taxes caused Selden thereafter to demand the return of the $1000.00 deposit. The defendant had used the money for other purposes and was unable to return it. A total of $200.00 was returned however at a later date. There was never any work done upon the construction of the house.

The fifth count of the indictment has to do with the purchase of sublot 479 in connection with the building of a house thereon by defendant for which the purchasers, Oliver J. and Mary J. Ferroni, were to pay $11,500.00. $7200.00 of the purchase price was to be financed and the balance to be paid in cash. 'This purchaser owned a house which defendant represented he could sell, by which sale the funds necessary to carry out the transaction were to be derived. The purchaser paid $1000.00 to defendant upon the signing of the contract on January 13, 1947. It later developed that the purchaser’s house could not be sold as readily as was anticipated by the parties. The defendant represented that the new house would be ready by May, 1947. When defendant failed to do anything in carrying out the promises made to Ferroni, the latter demanded his money back and was successful in getting back $250.00. With these exceptions the evidence discloses about the same facts as were developed in the other counts in the indictment.

Counts No. 6 and 7 charge defendant with having unlawfully taken a total of $4000.00, ($1000.00 as to count No. 6 and $3000.00 as to count No. 7) from Anthony S. Vadnal in *53a transaction involving the sale of sublot 320 and a contract to build a house thereon. The contract price was $9000.00.

The representations inducing the down payment of $1000.00 of .this sale followed closely the pattern found in the other counts in the indictment. These representations included the statement that he was the owner of the allotment; that the property was tax free and that the building of the house would proceed at an early date.

Count No.- 7 had to do with inducing Vadnal to part with an additional $3000.00 on the representation that if this money was paid the building would proceed with greater rapidity. Upon the payment of said additional sum, defendant deeded the lot to Vadnal and his wife. About four months thereafter, the Vadnal’s were served with notice as defendants of an action in foreclosure seeking to sell sublot 320 to satisfy the delinquent taxes. Mr. Vadnal then tried to get his money back and succeeded to the extent of $800.00. At one point in this transaction, a sewer connection was made and excavation begun, but the bulldozer broke down and nothing further took place toward building the house. What was done, however, occurred before the necessary financing was completed and mortgage deed placed of record.

The defendant’s first claim of error cannot be sustained. The allegations of each count of the indictment set forth all of the essential elements of the crime as defined by §12447-1 GC, and by the bill of particulars the defendant was informed of the claims of the state with sufficient particularity to enable him to prepare his defense.

The defendant’s second assignment of error is divided into three parts. (1) Overruling defendant’s motion to quash because of the claimed indefiniteness of §12447-1 GC, defining larceny by trick; (2) in overruling defendant’s motion for new trial; and (3) in overruling defendant’s motion in arrest of judgment.

Sec. 12447-1 GC in part provides:

“Whoever obtains possession of or title to anything of value with the consent of the person from whom he obtained it, provided he induced such consent by false or fraudulent representations, pretense, token or writing is guilty of larceny by trick * * *.”

This section was passed to supplement the crime of larceny as defined by §12447 GC. The strictness with which the courts have held to elements of the common law crime of larceny has made necessary the passing of statutes defining *54embezzlement, obtaining property by false pretenses, and conversion by a bailee. Larceny at common law required that there must be a trespass in obtaining possession of the property of another, followed by a carrying away or asportation of such property with intent to permanently deprive the owner of the value and use thereof. If possession was obtained lawfully and without fraudulent intent or if title or owners ship passed, no matter how fraudulently induced, larceny was not committed. In considering §12447-1 GC, we must interpret it as extending the crime of larceny into new fields rather than attempting to restrict it, within the limits of §12447 GC, just as the statutes defining embezzlement, obtaining property by false pretense and conversion by a bailee, extended the criminal law with respect to offenses against the property of another that were not; within the definition of common law larceny.

The elements of the crime as defined by §12447-1 GC are:

1. Obtaining possession or title

2. to anything of value

3. by false or fraudulent pretense, token or writing.

So far as the crime defined by this section is concerned, it matters not whether possession or title is procured. Either comes clearly within its provisions. So, in the instant case, the fact that the indictment alleges that the defendant procured possession of certain money through false representations and the evidence shows that he took money as alleged in the several indictments, under such circumstances as to clearly indicate that title thereto by the consent of the victim passed to the defendant, does not constitute a fatal variance.

The gravaman of the offense is that, unlike the crime of larceny, as defined in §12447 GC, the person from whom either possession or title is taken must consent to the transaction and such consent must be induced by “false and fraudulent” pretense, token or writing.

It must, therefore, logically follow that whether the facts or circumstances which are misrepresented or falsely pretended, then in fact exist, or are represented to then exist, or are concerned with what may be represented or promised to take place at a future time, is of no great importance. What is important is, that the representations must be falsely or fraudulently made, or the circumstances must be such that there could be no reasonable probability of their being true, and as a result of such misrepresentations or false token or pretense, one is induced to part with the possession or title to his property.

*55Defendant complains that the words “intent to defraud” are not contained in the statute. Such complaint must be directed to the legislature and not the courts. The legislature is vested with the power to define what conduct shall offend the criminal law of the state. And if by clear and unambiguous language of the statute, obtaining possession or title to another’s property, accomplished by false or fraudulent pretense, token or writing, is made a crime punishable by fine or imprisonment, it is the duty of the court to give effect to the provisions of such statute, even though the elements of the crime as thus defined find no counterpart at common law.

No subject has been more troublesome in the law of crimes than that of larceny. The .common law of larceny steadfastly excluded all conduct that did not include (1) a trespass in acquiring possession; (2) a carrying away or asportation with intent to steal the property of another, until the Carrier’s case decided in 1473. In this case a bailee came into possession of the property of the prosecutor lawfully but it was held that his conduct thereafter in “breaking bulk” constituted a trespass sufficient, when followed by asportation with intent to steal, to make out the crime of larceny. The case of King v. Bazeley (1799) followed as a landmark in the history of the development of the subject. In this case the defendant was found not guilty of larceny, where he appropriated money coming into his possession as principal teller of a banking firm. The parliament, as a result of this case, passed the first general embezzlement statute to protect society against such conduct thus held not to be within the crime of larceny as then defined.

Larceny by trick was recognized as early as 1789 in the Pear’s case. Pear was indicted for stealing a horse. He had hired the horse to gp to Sutton and back. He sold the horse the same day. On trial the jury found by special verdict “that he had hired the horse with fraudulent intent to sell him immediately.” Whereupon the court judged him guilty of felony. (See “Theft, Law & Society” by Dr. Jerome Hall.) This was a radical departure from the case law up until the trial of the Pear’s case, for the reason as stated by Professor Hall, supra, beginning at page 16 and quoting from Hawkins & Lord Mansfield as follows:

“ ‘It seemeth to be the better opinion, that the deceitful receiving of money from one man to another’s use, upon a false pretence of having a message and order to that purpose, is not punishable by a criminal prosecution, because it is accompanied with no manner of artful contrivance but wholly depends on á bare naked lie; and it is said to be *56needless to provide severe laws for such mischiefs, against which common prudence and caution, may be a sufficient security.’ There are many cases to support Hawkin’s statement. What is particularly important, however, is that, even after the enactment of 30 Geo. II, the same rule was applied. In Rex v. Wheatley, a leading case decided in 1761, the defendant sold sixteen gallons of malt liquor, representing that there were eighteen gallons. He was not even indicted under the statute of 1757 for obtaining property by false pretenses, and the court held that he was not guilty of any offense. Lord Mansfield stated the rules as they were then interpreted:

‘The offense that is indictable must be such a one as affects the public. As if a man uses false weights and measures and sells by them to all or to many of his customers, or uses them in the general course of his dealing: so, if a man defrauds another under false tokens. For these are deceptions that common care and prudence are not sufficient to guard against. So if there be a conspiracy to cheat: for ordinary care and caution is no guard against this. Those cases are much more than mere private injuries; they are public offenses. But here, it is a mere private imposition or deception; no false weights or measures are used; no false tokens given; no conspiracy; only an imposition upon the person he was dealing with, in delivering him a less quantity instead of a greater; which the other carelessly accepted. It is only a non-performance of his contract; for which non-performance he may bring his action.’ ”

Then followed statutes defining obtaining property by false pretense and conversion by bailees in lawful possession, which statutes were necessary because the courts were unable or unwilling to extend larceny to include such conduct.

The trend of modern statutes is to combine all of the crimes involving property (larceny, embezzlement, obtaining property by false pretense and conversion by a bailee) into one all-inclusive statute and to include conduct therein not heretofore found within any of such statutes. See New York Penal Law, Sec. 1290, 1290(a), effective Sept. 1, 1942 and See. 490(a) of the Penal Code of California. It must therefore be considered that such statutes are not to be interpreted by the restrictions of the past bpt rather in the light of their true purpose, to fill in the deficiencies found in the preceding statutory and common law rules.

An examination of §12447-1 GC, strongly indicates that *57the legislature in passing said section, had before it for consideration Sections 1290 and 1290(a) of the New York Penal Code. Sec. 12447-1 GC follows very closely some of the wording found in the New York statute. It might have been better if the legislature had followed in principle the New York statute on larceny, as enacted in 1942, and repealed the existing law on crimes against property. Instead they enacted a new crime which they designated as “Larceny by Trick.” Under §12447 GC, the phraseology of the section is such as to require judicial interpretation. It provides that “whoever steals anything of value is guilty of larceny.” The courts have held that the elements of common law larceny was intended. But larceny by trick has no common law counterpart, as defined by §12447-1 GC. True, courts have used the words “larceny by trick” in decisions liberalizing the early law on the subject of what constitutes a trespass. Eisenmann v. State, 12 Oh St 145 is a good example. But no court has ever said that where title and not possession was procured by fraud that the crime of larceny was committed.

Kellogg v. State, 26 Oh St 15.

In the Kellogg case, the Supreme Court held that the prosecuting witness not only was induced by fraudulent representations to give up possession of his money to the defendant, but also title. It was therefore held that the crime was not larceny, §13104 GC defining obtaining property by false pretense with intent to defraud would have been the proper statute under which the case should have been prosecuted.

Unquestionably the legislature in passing §12447-1 GC had in mind to make the distinction between procurring of possession of or title to the goods of another by means of fraud, unimportant. Often times the question of whether one has parted with title or only possession is attended with great difficulty, requiring a decision of the highest court of the state to settle the question.

Sec. 12447-1 GC spells out in plain and unambiguous language the elements which constitute the crime therein defined. As above set forth they are:

1. Obtaining possession or title

2. of anything of value

3. by false or fraudulent pretenses, token or writing.

One who is induced to part with the title to his property, to another by “fraudulent representations, pretense, token or «writing” suffers an actionable wrong or injury to his property rights. The one engaging in such fraudulent conduct is guilty of a wrongful act. The same is equally true if, in like manner, one is induced to part with the possession of *58his property. Such wrongful conduct has become the subject of a criminal statute.

I agree completely with the quotation cited by the majority of this court on the historical development of the law by Holmes (see pages 16 and 17 of the majority opinion). It shows clearly the point in issue in this case. Such wrongs as are in part defined by §12447-1 GC, and therefore included within the Criminal Code of Ohio by reason of the passage of such section, would have been, at common law, but a civil injury, for the reasons set forth in the quotation. But the legislature of Ohio is vested with the exclusive right to define what conduct shall offend the criminal law of the state, and to prescribe the elements necessary to constitute each of the crimes included within the criminal code of the state. And it requires no citation of authority to say that “intent” as a separate element need not be included as a necessary element of a particular crime, if the legislature within the reasonable exercise of its legislative authority omits such element.

The legislature in passing §12447-1 GC, spelled out each of the elements of the crime which it designated as “larceny by trick,” and it is not within the power of the court to add a further element based on historical reasons.

As indicated herein, the committing of a fraudulent act which causes an injury to the property rights of another (surrendering possession or title) constitutes a wrong which is made punishable under said section. The court so charged the jury. One could not be found guilty-of fraudulent conduct or deception who acts innocently and without a guilty mind. To hold that “intent to steal” (in addition to proof of fraudulent conduct) which element was not included in the statute, should have been included in the charge, seems an unnecessary duplication of legal terms.

As indicated, the court sufficiently defined the crime charged in the words of the statute, and if the defendant had desired a fuller explanation of the meaning of any of the terms used, he could have requested such additional instructions. This he did not do, and therefore cannot now claim prejudicial error on that ground. In fact the defendant does not question the correctness of the court’s charge in Uny of his assignments of error. The question of the accuracy of the charge is therefore not before us on this appeal.

The defendant’s second claim of error should, therefore, be overruled.

The defendant’s third assignment of error claims misconduct of the prosecutor. The prosecutor while presenting the State’s case made a request as follows:

*59“I would like to ask the defendant to produce Mr. Healy’s business records, checks, vouchers, paid bills, the records of his business. I asked for it before and I am repeating the request. Mr. Picciano: (counsed for deft.) We say, Your Honor, this is stage play on the part of the prosecutor, because we expect to put on * *

At this point the jury was excused. What followed is of no importance as to this assignment of error. It should be said, however, that when the jury was recalled they were fully instructed to disregard the prosecutor’s statement and request.

In 110 A. L. R., 115, in dealing with improper conduct of this kind the author says:

“The writer has found no case in which, after appropriate instructions given by the trial judge a conviction has been set aside because of an improper demand for documentary evidence.”

There was no prejudice to defendant’s rights on this claim of error.

Defendant’s claim of error No. 4 is not supported by the record.

The 6th and 7th counts of the indictment deal with inducing Anthony Vadnal to part with $4000.00 on the promise of defendant to build a residence for him on sublot 320 in Bexley Park. The state introduced a tax foreclosure petition filed in common pleas court against this prosecuting witness within four months after defendant had deeded the lot to Vadnal as security for the return of the $4000.00 paid on the contract of purchase. The state was entitled to this evidence from the public records of this county which tended to show the falsity of defendant’s representations.

Defendant’s fifth claim of error has to do with the rejection of evidence tendered by him, to which objection to its introduction by the state was sustained. The evidenced offered was photostatic copies of defendant’s commercial accounts with Bank of Ohio and The Cleveland Trust Co., showing deposits and withdrawals. The claimed purpose for which this evidence was offered, was to show what defendant did with the money paid to him by the several prosecuting witnesses. For such purpose the evidence offered would be of no value and would be secondary in character. It is my opinion that there is no prejudice to defendant on this claim of error.

Coming now to defendant’s final claim of error, that the *60verdict is manifestly against the weight of the evidence. I have already concluded in considering defendant’s claim of error No. 2 that there was evidence offered on behalf of the state and received by the court supporting each of the elements of the crime of larceny by trick as defined by §12447-1 GC. It remains, therefore, only to consider whether such evidence is sufficient to justify the judgment of guilty as to each count of the indictment.

The evidence is undisputed by defendant that he received from the prosecuting witnesses (six in number and two others whose transactions with defendant were introduced in evidence under the similar offense provisions of the Code of Criminal Procedure — §13444-19 GC) the sum of $10,000.00 within a period of a little over six months from the latter part of 1946 until the middle of 1947. All of this money was paid to defendant as a part of the consideration to be paid to him by the prosecuting witnesses for the erection of dwelling houses on sublots in Bexley Park Allotment, which the defendant represented he owned. With the exception of one sewer connection, nothing was ever done by defendant toward building any of these houses. Not even a building permit was applied for. At the time these transactions were being negotiated, the evidence shows (and it was then a matter of common knowledge) that housing accommodations were almost impossible to get, whereby the prosecuting witnesses were easy victims of defendant’s fraudulent representations. The defendant is alleged to have made promises of early completion dates in all of these cases as an inducement to make an immediate down payment. These deposits were all the easier procured by defendant’s claims of ownership of Bexley Park Allotment then consisting of more than 200 lots. This show of financial stability at least seemed to afford some security justifying the making of such deposits by those in desperate need of housing accommodations.

The evidence tends to show that while the defendant did have title to all but one of the lots sold, the delinquent taxes destroyed any financial interest he might have had therein. BSs inability to continue with the construction of the houses which he then had in the process of building, which caused the bank or loan companies that had granted the construction loans thereon to take over the building operations because of defendant’s financial distress, and his own admission that in early 1947 he was “financially embarrassed” is strong evidence that he never intended to do more than take the prosecuting witnesses’ deposits for his own purposes and that he had no reasonable ground to believe that he would every carry out his contracts with them.

*61It is my opinion that the judgment of guilty on all seven counts of the indictment is supported by sufficient evidence. Therefore this claim of error should be overruled.

For the reasons stated the judgment of the common pleas court should be affirmed.

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