Commonwealth v. Luckis , 99 Mass. 431 ( 1868 )

Colt, J.

The defendant, waiving all objections to the form of the indictment, relies now only upon alleged errors in the rulings and instructions of the court upon the evidence.

The case shows an attempt manifested by an act, which was tne beginning of a larceny, the completion of which was interrupted by an intervening circumstance not within the control of the prisoner. To justify a conviction, it was necessary to show that she failed in the perpetration, or was prevented in the execution of the offence of stealing from the person, — an offence which could only be complete when the property sought to be taken was in the full custody and control of the defendant. It is not indeed necessary that the pocket-book of the prosecutor should have been removed from the pocket, if once within the grasp of the thief, to constitute larceny. Rex v. Thompson, 1 Mood. 78. But the prisoner must for an instant at least have had perfect control of the property. There was nothing in the evidence reported which would justify the court in instructing the jury that there was such instantaneous caption and asportation in this case. Nor is there any evidence to which the last part of the instructions asked could be applied. It was not until after the hand was seized by the officer, and after all intention to commit any larceny must have been abandoned, that the pocket-book fell from the pocket in the straggle which ensued.

There was no error in the instructions given, or in refusing those asked. Exceptions overruled.