People v. Woodward

Boardman, J.

The court below did not properly state the legal questions before the jury. Upon the evidence it is certainly a grave question whether the act charged and proved was larceny or malicious mischief. To constitute larceny, there must have been a felonious intent, animo furandi or lucri causa. The malicious killing of a horse is a misdemeanor. Penal Code, § 654; 2 R. S. *695; L. 1866, c. 682. The offenses are quite distinct. In either case there is a trespass. In larceny the taking must be for the purpose of converting to the use of the taker; in malicious mischief no such intent is necessary. In the present case the evidence tends to show a taking of the horse to kill him, with a sole desire to injure the owner. It was incumbent on the court then, to point out to the jury the legal elements in the crime of larceny, so as to distinguish it from malicious mischief. This, we think, was not done. The jury was told, in substance, if defendant took, or procured to be taken, this horse, and killed, or aided in killing him, he must be found guilty. In no part of the charge is this language modified or qualified.

The seventh request to charge is as follows: “ There must have been a felonious intent, for without such, an intent there was no crime; and the felonious intent must have been formed before the taking ; and that if, before the taking of the horse, the intent was to take it and kill it, the crime would not be a felony, but an offense under the statute, classed among misdemeanors, under the term malicious mischief.” The defendant excepted to the refusal to charge as requested. The request to charge, the refusal to charge, and the exception, are all very informal and inartificial, but sufficient, we think, to present the important point in the case. The defendant was entitled to have the jury instructed in substance as requested. Mr. Wharton, in his work on Criminal Law (§§ 1781-4), has considered whether larceny can exist where there is no intent on the part of the taker to reap any advantage from the taking. He has reviewed the decisions, from the case of Rex v. Cabbage, Russ. & Ry. C. C. 292, cited by the district attorney, to the time of his writing, and concludes that the qualification “ luori causa ” has been accepted by our courts as an unquestioned part of the common law. He says (§ 1784), “ thus it has been frequently held to be a misdemeanor, of the nature of malicious mischief, to kill an animal belonging to another, though it has never been held larceny so to kill and take unless some benefit was expected by the taker.” And he cites in support of such statement, among other cases, Commonwealth v. Leach, 1 Mass. 59; People v. Smith, 5 Cow. 258 ; Loomis v. Edgerton, 19 Wend. 420. The conclusion is sustained by the authorities.

It was a serious matter for the defendant whether he should be convicted of grand larceny upon facts which he claimed could only constitute malicious mischief. He had the right to have the distinction pointed out to the jury. He requested it, but it was not done. Thus the court-neglected and refused to point out the essential ingredient of the crime of grand larceny, whereby the defendant may have been convicted of a felony, while the facts arid the charge were equally applicable, to a misdemeanor. The learned county judge very properly and fully recognizes the serious importance of .this question, when he stays the execution of the senten'ce pending an appeal. There are various other questions presented, but it is unnecessary to consider them, sinc.e upon the point already discussed a new tidal must be granted. The judgment and conviction are reversed, and a new trial is granted.

Bockes, J., concurs.