Galloway v. State , 105 Miss. 897 ( 1913 )

Cook, J.,

delivered the opinion of the court.

Appellant was convicted of the crime of larceny; the indictment charged him with stealing a mule. The state introduced evidence tending to show that the appellant, a negro, owed McCool & McQuary, a firm of merchants, a “store account;” that he sold them the mule for one hundred and twenty-five dollars, with the agreement that he was to be credited on the books with the agreed price, and that the buyers were to send for the mule. They did send for the mule, in the absence of appellant, saying to the family of appellant that they needed the mule to haul goods from Vardaman. Appellant, after waiting a week for the merchants to return the mule, borrowed a horse from his landlord, rode over to the barn of the merchants in the daytime and, in full view of the public, tied a rope around the mule’s neck and led it along the public highway to the home of his employer. Appellant testified that he had not sold the mule at all, but had merely tentatively agreed upon a price, in case he should decide to sell the mule. There were two “ store accounts;” one of which was charged to appellant, the other to Pete, the brother of appellant, which last-named account the merchants say appellant said he would see was paid. It will be observed that appellant, according to his understanding, was simply recovering his own property. A careful review of all the evidence taken at the trial convinces us that the minds of the contracting parties did not meet, and, while it was the understanding of the merchants that they had bought the mule, we cannot escape the conclusion that appellant did not so understand. We reach this conclusion after giving full credit to the evidence of the state, and after assuming that the merchants complied with their part of the contract. We believe, however, that the evidence submitted to the jury did not warrant the finding that the merchants had performed their part of the contract. Waiving all consideration of whether the mule was the property of Mc-Cool & M'cQuary when he was taken from their barn, and granting that it was their property, we do not believe that the evidence warranted the conviction of appellant —all the essential elements of larceny or criminal trespass are absent.

Reversed and appellant discharged.