The cow charged to have been stolen by the defendant was taken, and carried away by him the afternoon before the morning on which he marked it. He might, of course, have been guilty of feloniously taking and carrying away the animal of another on that afternoon and still have come by the next morning when he marked it to believe that it was his own or his wife’s. In other words, the jury were not bound to acquit him of the larceny charged upon the conclusion by them that some time after the caption he entertained the belief that the cow belonged to him. Charge 8 requested by the defendant was, therefore, properly refused.
The general charge and charge 9 requested by the defendant proceed on the unwarranted assumption of law that larceny cannot be predicated of a taking and asportation in the presence of others. — Brown v. State, 125 Ala. 49; Talbert v. State, 121 Ala. 33.
In so far as charge 9 asserts that the openness of the caption is evidence that the taking was “a civil trespass and not a crime,” it is a mere argument.
Affirmed.