Jeffries v. State , 7 Ala. App. 144 ( 1913 )

WALKER, P. J.

The only support for the charge of larceny made against the defendant was evidence tending to prove his possession and sale of a cow which had disappeared from a pasture from which cattle sometimes escaped through broken places in the fence which inclosed it or at a point where a branch ran under the fence. There was an entire absence of evidence having any tendency to prove bow the coav got out of the possession of its owner or came into the possession of the defendant. It would he pure surmise to say that he feloniously took and carried it away, rather than that he innocently took charge of it when it strayed on premises of which he had possession or control. To say that the defendant’s acquisition of possession amounted to a trespass or was accompanied by a felonious intent would he a guess, not a finding on evidence, capable of shedding any light on the inquiry. Following previous rulings in this state on similar conditions of evidence, it must be held that the general affirmative charge requested by the defendant should have been given because of the lack of any evidence having a tendency to prove the corpus delicti. — Sanders v. State, 167 Ala. 85, 52 South. 417, 28 L. R. A. (N. S.) 536; Thomas v. State, 109 Ala. 25, 19 South. 403; Orr v. State, 107 Ala. 35, 18 South. 142; Griggs v. State, 58 Ala. 425, 29 Am. Rep. 762.

ReArersed and remanded.