Golden v. State, 63 Miss. 466

Golden v. State

63 Miss. 466 | Miss. | 1886

Cooper, C. J.,

delivered the opinion of the court.

Section'2901 of the code declares that “ Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of ten dollars or more, shall be guilty of grand larceny, and shall be imprisoned in the penitentiary for a term not exceeding five years; but it shall be grand larceny to take and carry away, feloniously, any of the kind of horned cattle, or sAvine, or sheep, or goats, of any value.” Petit larceny consists in the stealing of property of less value than ten dollars, and is punishable by imprisonment in the county jail for a term not exceeding three months or by fine not exceeding one hundred dollars, or by both such fine and imprisonment.

The appellant was indicted for the larceny of a cow. The evi*468dence for the State showed that the body of the cow was found near his house ; that the skin had been taken off, and as some of the witnesses state, some pieces of steak had probably been cut from her thigh ; the appellant had sold the hide to a butcher, telling him that it was the hide of a cow which had been injured and killed. It was unquestionably shown that this hide was that of the cow alleged to have been stolen. The theory of the defense was that the cow had died, and that appellant had found her dead ■ and taken the hide, and the evidence on his part tended to establish this fact.

For the defendant the court was asked to charge the jury “ That if they believe from the evidence that the cow alleged to have been stolen was found by the defendant dead, and that he did not kill her, then they should find the defendant not guilty.” The court refused to give the instruction as asked, but changed it by striking out the word “ kill,” and inserting in lieu thereof the word “ steal.”. So that the instruction as given read, “ If they believe from the evidence that the • cow alleged to have been stolen was found by the defendant dead, and that he did not steal her, then they should find the defendant not guilty.”

It was error to change the instruction. The statute, in making the larceny of any bind of horned cattle, or swine, or sheep, or goats of any value grand larceny, had reference to such animals being alive, and not to their dead bodies. It is grand larceny to steal any of the animals of the classes, named, being alive, regardless of the value, and it might be grand larceny to steal the bodies after death, but that could only be where such body could be shown to exceed ten dollars in value. The vice of the instruction as given is that it suggests that if the appellant found the cow dead and did steal her when so found, he might be convicted of grand larceny, although there was no evidence before the jury of the value of the dead body. 2 Archbold’s Criminal Practice and Pleading 1151. ,

The judgment is reversed.