Holly v. State, 54 Ala. 238

Holly v. State

54 Ala. 238 | Ala. | 1875

BRICKELL, C. J.

The most approved definition of larceny, at common law, is that given by Mr. East, in his Crown Laws: “ The fraudulent or wrongful taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to *239his (the taker’s) own. use, and make them his own property, without the consent oí the owner.” — 2 East, 524; 3 Green. Ev. § 150. An indispensable constituent of the offense thus defined, is, that the thing taken must - be of goods personal, and ndt of chattels real, or such as are annexed to the freehold. Corn, grass, trees, and the like, adhering to the freehold, were not the subjects of larceny, but the severance of them (according to Blackstone) “was, and in many_things is still, merely a trespass which depended on a subtility in the legal notions of our ancestors. These things were parcels of the real estate, and, therefore, while they continued, so, could not by any possibility be the subject of theft, being absolutely fixed and immovable.” As to the time intervening between the severance and the asportation, which would make them separate acts, instead of one continuous act, nice distinctions were made. Sometimes it was held a day must intervene between the severance and .the asportation, to make them separate acts, because the law does not recognize a fraction of a day. The better doctrine, however, is, as stated by Mr. Bishop, that no particular space of time is necessary, only the two acts must be so separated as not to constitute one transaction.—2 Bish. Cr. Law, § 679. When by one act the thing was severed from the freehold, and by another distinct act it was carried away with the criminal intent, though before severance it was part of the freehold, it was the subject of larceny. This rule of the common law has been modified from time to time in England, by acts of parliament, so as to afford protection to things fixed to the freehold, as they became the. objects of criminal severance and asportation, and were from their nature exposed to it. The rule was never satisfactory, and the courts in modern times, were inclined to confine it within the narrowest limits.—Hoskins v. Torrence, 5 Black. 417; Jackson v. State, 11 Ohio St. 104.

The statutes of this State do not define larceny; the stealing of certain things, or of any property other than that particularly enumerated beyond a certain value) is declared grand larceny. The stealing of property of any value from any building on fire, or which was removed in consequence of an alarm of fire; or, the stealing from designated places, of any personal property exceeding in value fifty dollars, is also declared grand larceny. —R. C. §1§ 3706-7. The stealing of any other personal property, under other circumstances, is declared petit larceny.— R. C. § 3708. At the last session of the General Assembly, the statutes were amended so as to convert the stealing of “any part of an outstanding crop of corn or cotton,” into grand larceny, without regard *240to the value of the part taken. The frequency of such depredations on outstanding crops, rendered legislation for their protection necessary; as such legislation was rendered necessary in England, and in other States of the Union.

Under this amended statute, an indictment was preferred against the appellant, charging that he “ feloniously took and carried away fifteen ears of corn, a portion of an outstanding crop, the property of •’William Russell,” &c. It is now urged the indictment is insufficient to support a conviction, because it does not aver the corn taken was not previously severed from the freehold — because there is no averment that it was the personal property of William Russell — because .it is not averred the corn was part of an outstanding crop. The indictment pursuing the words of the statute describes the thing taken, as a portion of an outstanding crop. It varies from the exact words of the statute only in substituting the word por lion for part. We see no reason for the substitution of the one word for the other. It is the better practice to follow the exact words of the statute, though in the particular instance their equivalents may be sufficient. Portion, as here employed, is the equivalent of the statutory word part, and equally with it, describes the act in which the offense consists. A distinct averment that the corn was not, at the time of the felonious taking, severed from the freehold, was not necessary. The statute makes it larceny to steal a thing, not the subject of larceny at common law. The general rule is, that in an indictment under such a statute, the statutory term must be used, and is sufficient.— 2 Bish. Cr. Pr. 731. The purpose of the statute was to convert the severance and asportation of a standing crop — a crop not severed from the freehold — into a criminal offense. Before the statute, under the common law, it was a mere trespass. The felonious taking and carrying away corn, or other produce of the soil, which the owner had severed from the freehold, was larceny at common law. It was personal property, and as essentially the subject of larceny, as any species of personal property. The allegation that the corn stolen was part of an outstanding crop, excludes the idea of its severance. It involves the fact that it was not severed ; and that there was severance and asportation as one continuous act, constituting* the trespass of the common law. Proof of nothing less will satisfy the averment.

Nor was it necessary to describe the corn as personal property. Such a description of it would perhaps have been improper. It is properly described as the property of the supposed owner, and thereby it is shown to be the subject of larceny under the statute. The last objection, that the *241corn is not averred to be part of an outstanding crop, is unfounded in fact.

We find no error in tbe record, and tbe judgment must be affirmed.