Edmonds v. State , 70 Ala. 8 ( 1881 )

SOMERYILLE, J.

The indictment in this case charges the defendant with the larceny of a hog,/which, under the statute, is made a felony, without reference to the value of the animal stolen. — Code, 1876, § 4358. The only evidence in the case, showing any caption, or asportation of the animal, was the testimony of an accomplice, one Wad worth, who máde the following statement: A“That shortly after dark, on the 18th of February last, witness met defendant near the horse-lot, on the plantation of one Ilges; that the two went together to witness’ house, where the latter procured an axe, and they then returned to the lot. Witness then got some corn, and after giving defendant the axe, by dropping some of the corn on the ground tolled the hog to the distance of' about twenty yards ; that the defendant then struck the hog with the axe, and the hog squealed, whereupon immediately both witness and defendant ran away, leming the hog where it was.” IJpon this state of facts, the court charged the jury, that, if they believed the evidence, it was sufficient to show such a talcing and carrying away of the property, if don.e. feloniously, as was necessary to make out the offense of larceny.

We think the court erred in giving this charge, though the question presented is not free from some degree of doubt and difficulty. The usual definition of larceny is, “ the felonious taking and carrying rnoay of the personal goods of another.” 4 Black. Com. 229. It is defined in Boscoe’s Criminal Evidence, as “ the wrongful taking possession of the goods of another, with intent to deprive the owner of his property in them.” —Ib. 622. It is a well-settled rule, liable to some few exceptions, perhaps, thát every larceny necessarily involves a trespass, and that there can be no trespass, unless there is an actual or constructive taking of possession; and this possession must be entire and absolute.—Roscoe’s Cr. Ev. 623-24; 3 Greenl. Ev. § 154. There must.hot only.be such a caption as to constitute possession of, or dominion over the property, for an appreciable moment of time, but also an asportation, or., carrying away, which may be accomplished by any removal of the property or goods from tlieir original status, such as would constitute a complete severance from the possession of the owner. 1 Greenl. Ev. § 154; Roscoe’s Cr. Ev. p. 625. It has been frequently held, that to chase and shoot an animal, with felonious intent, without removing it after being shot,_ would not be such a caption and asportation as to consummate the offense of larceny.— Wolf v. The State, 41 Ala. 412; The State v. Seagler, 1 Rich. (S. C.) 30; 2 Bish. Cr. Law, § 797. ; So, it has been decided, that the mere upsetting of a barrel of turpentine, though done with felonious intent, does not complete the offense, for the same reason.-State v. Jones, 65 N. C. 395. The books are full of cases presenting similar illustrations.

On the contrary, it is equally well settled, that where a person takes an animal into an inclosure, with intent to steal it, and is apprehended before he can get it out, he is guilty of larceny. — 3 Inst. 109. In Wisdom's case, 8 Port. 507, 519, it was said, arguendo, by Mr. Justice Goldthwaite, “If one entice a horse, hog, or other animal, by placing food in such a situation as to operate on the volition of the animal, and he assumes the dominion over it, and has it once under his control, the deed is complete; but, if we suppose him detected before he has the animal under his control, yet after he hag_Qperated on its volition, the offense would not be consummated.’’; This principle is, no doubt, a correct one; but the true difficulty lies in its proper.' application. It is clear, for example, if one should thus entice an animal from the possession, actual or constructive, of the owner, and toll it into his own inclosnre,. closing a gate behind him, the custody or dominion acquired over the animal might be regarded as so complete as to constitute larceny. — 2 Bish. Cr. Law, § 806. It is equally manifest that, if one should, in like manner, entice an animal, even for a considerable distance, and it should from indocility, or other reason, follow him-so far off as not to come virtually into his custody, the crime would be incomplete. >

The controlling principle, in such cases, would seem to be,, that the possession of the owner must be so far changed as than the dominion of the trespasser shall be complete. His prox-l imity to the intended booty must be such as to enable him to assert this dominion, by taking actual control or custody by manucaption, if lie so wills. If lie abandon the enterprise, however, before being placed in this attitude, lie is not guilty of the offense of larceny, though he may he convicted- of an attempt to commit it.—Wolf’s case, 41 Ala. 112. It would seem there can be no asportation, within the legal- acceptation of the word, without a previously acquired dominion.

The facts of this case, taken alone, do ■ not constitute larceny. It is not a reasonable inference from them, that there was such a complete caption and asportation as to consummate the offense. ' ' "

The judgment of the Circuit Court is reversed, and the cause is remanded y