55 Ala. 138 | Ala. | 1876
Tbe act of February 20,1875, “to amend section 3706 of tbe Revised Code,” declares a person wbo steals any of tbe animals therein designated, among wbicb “bog” is specified, “or any part of an outstanding crop of corn or cotton,” or “ any personal property, other than that hereinbefore enumerated, exceeding twenty-five dollars in value,” guilty of grand larceny; and that on conviction be shall be punished accordingly. By tbe animals designated in tbis act are meant live beasts, not tbe carcases, or bodies of those that have been killed. Tbe stealing of one of these
From tbe evidence in this cause, the jury might, perhaps, infer that defendant did not entertain the intent to appropriate to his own use the hog which is the cause of this prosecution, when he hilled it. The testimony of some of the witnesses is, that he, with some companions, was endeavoring to turn back and drive out of a lane, leading toward the crops they were cultivating, this and some other hogs, when this one, in dashing by, was killed by an axe, which defendant had in his hand, and threw at the hog. The body was then, some of the witnesses who were present say, dragged into the woods, or swamp, to be put out of sight, and left there; and defendant, shortly afterwards, told Mr. Peters, a white man, whose land he was cultivating, of the killing of the hog, and that he had done it accidentally. If the animal was not killed with the intent, then entertained, of stealing it, or some part of its carcase, but the act was in truth done without any such purpose, though recklessly, the subsequent cutting and taking away by the defendant of a part of the. body, in the course of the night following, or the next day, would not make him guilty of grand larceny, the whole hog being of the value of only six dollars. It is the live hog that he must intend to steal (which he may, of course, do by killing it and then taking it away), that constitutes grand larceny in such a case. But, if, after it is killed, no matter by whom, if not done by the defendant, or some one with whom he is conspiring, with intent to steal the body, or some part of it, a purpose is afterwards formed, and carried into effect, of taking and carrying away a part of the meat, the person guilty of this is not guilty of grand larceny, or of stealing a “ hog,” within the meaning of the statute. The act of trespass, and the felonious intent, do not so co-exist, as to make the offender guilty of that crime. — -See 1 Bishop on Or. Law,' (Bd ed.) § 366 L314], and cases cited in note. It ought, therefore, to have been referred to the jury, to determine whether or not defendant, when he killed the hog, did so with the intent of appropriating it, or any part of it, to his own use, or the use of some body else, not the owner, or of depriving the owner thereof. If he did, he would be guilty, according to the statute, of grand larceny; otherwise, he would not be.
The charge of the circuit judge was, consequently, erroneous; and the judgment must be reversed, and the cause remanded. Let the defendant remain in custody, until discharged by due course of law.
