Black v. State , 83 Ala. 81 ( 1887 )

CLOPTON, J.

— The defendant insists, that the State, by introducing evidence tending to show that the hog charged to have been stolen belonged to the witness Boach, elected to proceed for larceny of the property of Boách, and could not afterwards offer evidence tending to show that it belonged to another person. When an indictment does not designate a particular act, and there is evidence showing more than one act, the prosecutor will be compelled to elect the particular offense for which he will proceed; but the principle of election is applicable only when there is evidence of separate and distinct transactions. An election will not be enforced, when the indictment is so framed as to be adapted to the different phases, which the evidence may present, of a single transaction. The indictment avers that the owner is unknown; and the State did not attempt to prove more than one act. In such case, the State ought not to be compelled to elect as to the. mere fact of ownership. No prejudice could result to the defendant from evidence that one or the other of two persons was the owner. The record does not present a case for election. — Smith v. State, 52 Ala. 384.

The charge requested by defendant, that if the taking was open and notorious, and there was no subsequent attempt to conceal the property, and no denial, but an avowal of the taking, a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized, is substantially in the language of the rule as declared in McMullen v. State, 53 Ala. 531, and should have been given. — Rountree v. State, 58 Ala. 383; Johnson v. State, 73 Ala. 523.

Before a conviction can be had in a criminal case, all the essential constituents of the offense must be proved beyond a reasonable doubt. Generally, larceny is the taking the possession, and carrying away the goods of another, with the felonious intent to convert them to the use of the taker, or of some other person. There are exceptional cases, in which the owner may be guilty of stealing his own goods, but this case does not come within the exceptions. Under the circumstances of this case, if the hog was the property of the defendant, there could have been no larceny. If the evi- ' dence left in doubt whether the hog was his property, or the property of some other person, the State failed to establish, beyond a reasonable doubt, the guilt of the defendant. The court erred in refusing to give the instruction requested by defendant in regard to such doubt.

Beversed and remanded.