State v. . Shoaf

Boyden, J.

In this case his Honor was requested to charge the jury, that Reed was not guilty of larceny if he got the horse as testified to by the son of the prosecutors, if he believed the son could sell the horse. Plis Honor declined to charge as requested, but instructed the jury that if the witness Link was to be believed, then Reed knew that the son was not the owner of the horse and had no authority to sell.

But he undertook to sell upon a credit, and although he informed Reed that the horse belonged to his father, he did not inform him that he had not authority to dispose of the horse, although on the trial, he did testify that he had no such authority.

We think the defendant wa? entitled to the instruction asked, as we infer from the case as sent here that Reed and his place of residence was well known, and as there is no evidence that he fled the county or attempted to conceal the horse or himself, there was no evidence of larceny.

Had it appeared that Reed had immediately fled the county with the horse, or that he had concealed himself or the horse, then his Honor should have submitted the question to the jury, whether this trade and chaffering with the son about the trade was not a mere trick and artifice, thus fraudulently to obtain possession of the horse and then to flee the country, and deprive the owner of all redress; and if the jury should so find, then Reed was guilty of larceny, and the defendant would be guilty of the charge in the second count, if he knew of the theft of Reed; but otherwise they must find him not guilty.

Per Curiam

Venire de novo.