130 Ala. 57 | Ala. | 1900
In the absence of all tendencies of the evidence to support the conclusion, that defendant came into possession of the barrel of whiskey by the consent of the Louisville & Nashville Railroad Company or Faneher, in whom its ownership is laid in the indictment, or by finding it, there is no room for the an pli-cation of the principle that he must have entertained the felonious intent contemporaneously with the tak
The case of Beckham v. State, 100 Ala. 15, is cited as being opposed to the views we have expressed. The original record of that case fails to show a tortious taking, which, of course, differentiates it from the case in hand and the cases cited. See also Holbrook v. State, 107 Ala. 154; Washington v. State, 106 Ala. 58; Burger v. State, 83 Ala. 36.
The court in its general charge to the jury instructed them that “if the defendant took the barrel of whiskey and afterwards converted it to his own use, this is a felonious taking,” to which an exception was reserved. One of the essential elements of the crime of larceny is the fraudulent intent. And to authorize a conviction the evidence must establish its existence beyond a reasonable doubt. And its existence, vel non, in nearly all cases, is a question for the jury. In no case can it be affirmed as matter of law unless the evidence is clear and leaves no room for any reasonable inference against its existence or non-existence.—Talbert v. State, 121 Ala. 33. The instruction was erroneous.
There is no merit in the objections reserved to the admission of testimony nor was there error in refusing the written charges requested by defendant.
Reversed and remanded.'
