Collins v. Fowler , 10 Ala. 858 ( 1846 )

GOLDTHWAITE, J.

1. The offence of larceny, as recognized and declared in the penal code — Dig. 425, § 55 to 59 — is not materially different from what it was at common law. Embezzlement and fraudulent conversion of property, by an agent having its custody, are offences of a kindred nature with the crime of larceny, but certainly cannot be considered as included under that term. We think there was no error in the definition of the crime given to the jury, and if the defendant wished the court to instruct, that the plaintiff was guilty of a fraudulent conversion, or embezzlement of the cotton, under the circumstances in proof, he sliould have requested a particular charge to that effect.

2. On the other point in the cause, we consider the submis-mission of the plaintiff to the warrant, as entirely equivalent to an arrest, so far as that question is involved in this form of action. In Buller’s N. P. 63, it is said the submission to an officer having a warrant, is an arrest, and that too when the parties were proceeded against for a rescue. In Gould vBissell, 1 Wend. 210, the action was false imprisonment against a party sueing out a warrant to arrest the plaintiff in a civil suit, and it was held the submission of the party to the officer was an arrest, although no actual caption was made. In this case it was shown the justice of the peace ordered the plaintiff in custody, the constable returned the warrant as executed, and the party submitted to go on with the examination under the warrant. These facts admit of but one construction, and that is, that the plaintiff considered himself, and was so considered by all present, as in the custody of the officer then present. For all the purposes of this action, he was undér actual arrest, and no inference injurious to the defendant, could have been the consequence of the charge.

. The other points raised by the demurrer, and by the bill of exceptions, are not pressed, and require no consideration.

Judgment affirmed.