175 Ky. 126 | Ky. Ct. App. | 1917
Opinion of the Court by
Reversing.
Defendants, Frank' Ford and Washington King, were jointly indicted for the crime of horse stealing. On a separate trial, Ford was found guilty and his punishment fixed at eight years’ confinement in the penitentiary. He appeals.
Ford and King testified that Jennie Kincheloe lived only about a half mile from the. Thomas farm .and that they were only about a hundred or two hundred yards beyond her house when Mr. Thomas met them. They
The first ground urged for a reversal is that the verdict is not sustained by the evidence. In this connection it is argued that the facts, viewed in their worst aspect, simply make out a case of trespass, and are not sufficient to show that Ford took the horse with the felonious intention of permanently depriving the owner of his property therein. In support of this argument much stress is placed on the permission theretofore given Ford by the Thomases to use one of their horses for the purpose of taking his laundry to Jennie Kincheloe’s; that he used the horse for this purpose on the occasion in question; and that when found he was not going away from the Thomas home, but was either standing still with the horse facing in that direction, or was actually on his way there. It is further insisted that, even if the chickens were stolen, the fact that the horse was used to convey them away does not show an intent to steal the horse too. In considering the question of felonious intent, it must be remembered that while Ford had, on previous occasions, asked permission from the Thomases to use one of their horses, he did not ask permission on the occasion .in question. Furthermore, there was no reason whatever for him to use the horse for the purpose of taking his laundry to Jennie Kincheloe’s on the night in question. The very clothes which he took had been washed, paid for and delivered to him the night before. Being unsoiled, there was no necessity of their being washed again. When this circumstance is con-' sidered in connection with the presence in the buggy of the chickens, the suit of clothes, the towel and soap and bundle of clean clothes, together with the further evidence that Ford and his companion had proceeded a considerable distance beyond the Kincheloe home and
Besides other instructions not necessary to refer to, the court instructed the jury as follows:
“1. If the jury believe from the evidence beyond a reasonable doubt that in Warren county, Kentucky, and before the finding of the indictment herein, the defendant, Frank Ford, by himself or with another, did unlawfully, wilfully and feloniously, Steal, take and carry away from one Mrs. Fannie Thomas, one horse, the property of Mrs. Thomas, without the knowledge or consent of the owner, and did convert same to his own use, they will find defendant guilty as charged, and fix his punishment at confinement in the penitentiary not less than two nor more than ten years.
“2. Although the jury may believe from the evidence that defendant has not been proven guilty as charged, of stealing the horse, yet if they shall believe from the evidence beyond a reasonable doubt that at the time and place named above the defendant, Ford, by himself or with another did unlawfully, without felonious intent, take the horse in question from the said Mrs. Thomas’ stable, without the.knowledge or consent of the owner so to do, they will find him not guilty as charged, but guilty of taking without felonious intent, and fix his punishment at a fine of not less than $10.00 nor more than $2,000.00; and if the jury find him guilty under this instruction, they may or not provide that unless the fine be paid or replevied, he shall be placed at hard labor.”
To constitute the crime of larceny, the intent with which the property was taken must be felonious. In the language of the common law, it must be done cmimo‘r furandi. To take property in the absence of an intention to steal, that is, an intention to convert the same to the use of the taker and permanently to deprive the owner thereof, is not larceny, though under proper conditions it may constitute a trespass. Mearns v. Commonwealth, 164 Ky. 213, 175 S. W. 355; Triplett v. Commonwealth, 122 Ky. 35, 91 S. W. 281; Smith v. Commonwealth, 129 Ky. 433, 112 S. W. 614; Walklate v. Com
In view of another trial, we deem it necessary to! determine whether, under an indictment for horse stealing, the defendant may be convicted of unlawful taking without felonious intent under section 1256 of the Kentucky Statutes. In this connection our attention has been called to the case of Triplett v. Commonwealth, 122 Ky. 35, 91 S. W. 281, where the court, after referring to the above section of the statutes, concluded the opinion with the following language:
“In addition, this section has no application to the case in hand, because the statutory offense prescribed in*132 the section is not a degree of the common law offense of robbery, and, therefore, he (the defendant) conld not be found guilty of the statutory offense if the proof failed to show him guilty of robbery, or' any degree thereof, such as larceny.”
In reaching this conclusion, the court appears to have overlooked section 264 of the Criminal Code, which is as follows:
“If an offense be charged in the indictment to have been committed with particular circumstances as to .time, person, property, value, motive or intention, the offense without the circumstances) or with part only, is included in the offense, although that charge may be a felony, and the offense, without the circumstances, a misdemeanor only.”
In construing this section, it has been held that one indicted under section 807 of the Kentucky Statutes for maliciously disturbing any fixture attached" to a railroad track, may, in the absence of evidence that he was actuated by malice in taking away a switch light, be convicted of unlawful taking without felonious intent under section 1256 of the Kentucky Statutes. Commonwealth v. Wells, 112 S. W. 568. And in the case of Price v. Commonwealth, 129 Ky. 716, 112 S. W. 855, it was held that, under an indictment under section 1163 of the Kentucky Statutes, for forcibly breaking and entering a railroad car with intent to steal, it was proper to instruct the jury on trespass as defined in section 1256 of the Kentucky Statutes, where the evidence showed that the accused cut the seal on the car door, slid it back a little, then pushed the door back in place, and walked away. Whether one who unlawfully takes the property of another without his consent is guilty of larceny or .of trespass under section 1256, supra, depends on whether the taking was with or without a felonious intent. If with a felonious intent, the offense is larceny; if without a felonious intent, the offense is trespass. Since, under section 264, supra, an offense charged to have been committed with particular circumstances as to time, place, person, property, value, motive or intention, necessarily includes an offense without the circumstances, or with part only, there can be no doubt that the section aptly fits the facts of this case and authorizes an instruction 'on trespass. The case of Triplett v. Commonwealth, supra, to the extent
On another trial the court, in lieu of instructions 1 and 2, will instruct the jury as follows:
“1. If you believe from the evidence beyond a reasonable doubt that in Warren county, Kentucky, and before the finding of the indictment herein, the defendant, Frank Ford, by himself or with another, did unlawfully, take and carry away one horse, the personal property of Mrs. Fannie Thomas, with the felonious intent then and there to convert the same to his own use and to permanently deprive the said Mrs. Fannie Thomas of her property therein, without the consent of the said Mrs-. Fannie Thomas, you will find the defendant guilty of horse stealing and fix his punishment at confinement in the penitentiary for not less than two nor more than ten years.”
“2. Although you may believe from the evidence that defendant has not been proven guilty of horse stealing under instruction No. 1, yet, if you believe from the evidence beyond a reasonable doubt that at the time and place named above, the defendant, Ford, by himself or with another, did unlawfully take the horse in question from the stable of Mrs. Fannie Thomas, without ber consent, but without the felonious intent then and there to convert the same to his own use and to permanently deprive the said Mrs. Thomas of her property therein, you will find him not guilty of horse stealing as charged, but guilty of taking without felonious intent, and fix his punishment at a fine of not less than $10.00 nor more than $2,000.00; and if you find him guilty under this instruction, you may or not provide that unless the fine be paid or replevied, he shall be placed at hard labor. ’ ’
The other instructions given by the court are not subject to criticism.
Judgment reversed and cause remanded for a new trial consistent with this opinion.