McNeal v. MacOmber ( 1903 )

The defendants were tenants of the plaintiff of a certain dwelling house, in which were some carpets attached to the floor and let with the house. After the defendants had removed, it was discovered that the carpets were gone. Thereupon the plaintiff brought this action of trover and conversion in the District Court of the Tenth Judicial District.

At the trial evidence was introduced tending to show that the defendants had taken away the carpets. It was urged by the defendants that such alleged taking was larceny, and a motion for a nonsuit was made on the ground that a criminal complaint therefor should have been made before this action could be commenced.

The court granted the motion, on the authority of Struthers v. Peckham, 22 R.I. 8, and the plaintiff brings the case to this court on exception to the ruling.

We think the exception must be sustained.

In the case cited the defendant was only custodian of the property. Here the defendants were in possession.

To constitute larceny the goods must have been taken from the actual or constructive possession of the owner. If, after the defendants had left the house and their tenancy and rightful possession of these goods had ceased, they had returned and taken them, such taking, with felonious intent, would have been larceny; but no such circumstances are shown by the record submitted here.

The exception is sustained, and the case will be remanded to the District Court for further proceedings.