Frazier v. State

85 Ala. 17 | Ala. | 1887

CLOPTON, J.

— It has been held that to shoot and then chase a hog with felonious intent, over which the defendant was prevented from acquiring dominion, is not a sufficient caption and asportation to constitute larceny.— Wolf v. State, 41 Ala. 412. On the other hand, a charge has been held to be correct, which instructed the jury, that if the defendant shot and killed, and then took hold of the hog, and cut its throat, this would constitute a taking and carrying away in the meaning of the law. — Croom v. State, 71 Ala. 14. It is said generally that, to constitute the offense, there must be a wrongful taking possession of the goods of another, with the intent to deprive the owner of his property, either permauently or temporarily. The accused must have acquired dominion, so as to enable him to take actual custody or control, followed by asportation, which severs the property from the possession of the owner to some appreciable extent. The caption may be constructive, as when possession is obtained by trick, fraud, or deception.

If the defendant shot and killed the hog, with the larceny of which he is charged, in a pine-thicket in the field, with felonous intent, and covered it with pine-tops, in order to conceal it until he could return and secretly remove it; and if he subsequently removed it, in pursuance of the previous felonious intent, there was, in the legal acceptance of the terms, a taking and carrying away, sufficient to complete the offense, though the removal may have been with the consent of the owner, if such consent was procured by intentional misrepresentation and deception. — State v. Wilkinson, 72 N.C. 376; State v. Fenn, 13 Ark. 168. The charge requested by the defendant, ignored these material facts, which there was evidence tending to prove, and was misleading. There is no error in its refusal.

Affirmed.