Edmonds v. State, 70 Ala. 8

SOMERYILLE, J.

The indictment in this case charges the defendant with the larceny of a hog,/which, under the statute, is mаde a felony, without reference to the value of the animal stolen. — Code, 1876, § 4358. The only еvidence in the case, showing any caption, or asportation of the animal, was thе testimony of an accomplice, one Wad worth, who máde the following statement: A“That shоrtly after dark, on the 18th of February last, witness met defendant near the horse-lot, on the plantаtion of one Ilges; that the two went together to witness’ house, where the latter procured an axe, and they then returned to the lot. Witness then got some corn, and after giving defendant the axe, by dropping some of the corn on the ground tolled the hog to the distance of' about twenty yards ; that the defendant then struck the hog with the axe, and the hog squealed, whereupon immediately both witness and defendant ran away, leming the hog where it was.” IJpon this state of facts, the court сharged the jury, that, if they believed the evidence, it was sufficient to show such a talcing and cаrrying away of the property, if don.e. feloniously, as was necessary to make out the offense of larceny.

We think the court erred in giving this charge, though the question presented is not frеe from some degree of doubt and difficulty. The usual definition of larceny is, “ the felonious taking and carrying rnoay of thе personal goods of another.” 4 Black. Com. 229. It is ‍​‌‌‌‌‌​​‌‌​‌‌​‌‌‌‌​‌​‌​‌​​‌‌‌​​​​​‌‌‌​‌‌​‌​‌‌‌‌​‍defined in Boscoe’s Criminal Evidence, as “ the wrongful taking possession of the goods of another, with intent to deprive the owner of his property in them.” —Ib. 622. It is a well-sеttled rule, liable to some few exceptions, perhaps, thát every larceny necеssarily involves a trespass, and that there can be no trespass, unless there is an actual or cоnstructive taking of possession; and this possession must be entire and absolute.—Roscoe’s Cr. Ev. 623-24; 3 Grеenl. Ev. § 154. There must.hot only.be such a caption as to constitute possession of, or dominion over the property, for an appreciable moment of time, but also an asportation, or., carrying away, which mаy be accomplished by any removal of ‍​‌‌‌‌‌​​‌‌​‌‌​‌‌‌‌​‌​‌​‌​​‌‌‌​​​​​‌‌‌​‌‌​‌​‌‌‌‌​‍the property or goods from tlieir original status, such as would constitute a complete severance from the possession of the оwner. 1 Greenl. Ev. § 154; Roscoe’s Cr. Ev. p. 625. It has been frequently held, that to chase and shoot an animal, with felonious intent, without removing it after being shot,_ would not be such a caption and asportаtion as to consummate the offense of larceny.— Wolf v. The State, 41 Ala. 412; The State v. Seagler, 1 Rich. (S. C.) 30; 2 Bish. Cr. Law, § 797. ; So, it has been decided, that the mere upsetting of a barrel of turpentine, though done with felonious intent, does not complete the offense, for the same reason.-State v. Jones, 65 N. C. 395. The books are full of cases рresenting similar illustrations.

On the contrary, it is equally well settled, that where a person takes an аnimal into an inclosure, with intent ‍​‌‌‌‌‌​​‌‌​‌‌​‌‌‌‌​‌​‌​‌​​‌‌‌​​​​​‌‌‌​‌‌​‌​‌‌‌‌​‍to steal it, and is apprehended before he can get it оut, he is guilty of larceny. — 3 Inst. 109. In Wisdom's case, 8 Port. 507, 519, it was said, arguendo, by Mr. Justice Goldthwaite, “If one entice a horse, hog, or other animal, by placing food in such a situation as to operate on the volition of the animal, and he assumes the dominion over it, and has it once under his control, the deed is complete; but, if we suppose him detected before he has the animal under his control, yet after he hag_Qperated on its volition, the offense would not be consummated.’’; This principle is, no doubt, a correct one; but the true difficulty lies in its proper.' application. It is clear, for еxample, if one should thus entice an animal from the possession, actual or construсtive, of the owner, and toll it into his own inclosnre,. closing a gate behind him, the custody or dominion аcquired over the animal might be regarded ‍​‌‌‌‌‌​​‌‌​‌‌​‌‌‌‌​‌​‌​‌​​‌‌‌​​​​​‌‌‌​‌‌​‌​‌‌‌‌​‍as so complete as to constitute larceny. — 2 Bish. Cr. Law, § 806. It is equally manifest that, if one should, in like manner, entice an animal, even for a cоnsiderable distance, and it should from indocility, or other reason, follow him-so far off as not tо come virtually into his custody, the crime would be incomplete. >

The controlling principle, in such cases, would seem to be,, that the possession of the owner must be so far changеd as than the dominion of the trespasser shall be complete. His prox-l imity to the intended booty must be such as to enable him to assert this dominion, by taking actual control or custody by manucaрtion, if lie so wills. If lie abandon the enterprise, however, before being placed in this attitudе, lie is not guilty of the offense of larceny, though he may he convicted- of an attempt to commit it.—Wolf’s case, 41 Ala. 112. It would seem there can be no asportation, within the legal- acceptation of the word, without a previously acquired dominion.

The facts оf this case, taken alone, do ■ not constitute larceny. It is not a reasonable inferеnce from them, that there was such a complete caption and asportation as to consummate the offense. ' ' "

The judgment of the Circuit Court is ‍​‌‌‌‌‌​​‌‌​‌‌​‌‌‌‌​‌​‌​‌​​‌‌‌​​​​​‌‌‌​‌‌​‌​‌‌‌‌​‍reversed, and the cause is remanded y

Case Details

Case Name: Edmonds v. State

Court Name: Supreme Court of Alabama

Date Published: Dec 15, 1881

Citation: 70 Ala. 8

Court Abbreviation: Ala.