Larceny is the felonious taking and carrying away of the personal goods of another. To constitute larceny under the undisputed facts of' this case, the defendant must have known, at_the very time he received the m,o.ney, that he was receiving too much, and more than Was intended for him, and must then have intended to * convert the money to his own use. This would constitute the taking such a fraud, as would amount to larceny. — Rountree v. The State, 58 Ala. 381.
On the other hand, if the testimony, and circumstances fail to establish the facts and intent as above supposed, with such full measure of proof as to leave ip. the minds of the jury no reasonable doubt of the defendant’s guilty knowledge and intent, at the time he received the money, then .he is guilty of no crime, but only of a civil tort, known as trover and conversion: — State v. Hawkins, 8 Por. 461; State v. Ware, 10 Ala. 814; Spivey v. State, 26 Ala. 90; Wilson v. The State, 1 Por. 118.
The Circuit Court erred in the charge given, and in the refusal to charge as asked. Let the judgment lie reversed, and the cause remanded. The defendant will remain in custody until discharged by due course of law.