73 Ala. 523 | Ala. | 1883
— The defendant ivas convicted of petit larceny in the court below on the following state of facts. The prosecutor had purchased a package of coffee and a piece of meat, valued at about sixty cents, which were, on the counter of a store kept by one Yarner, who was a merchant. The father ■of the prosecutor had employed defendant as a day-laborer on a farm, and owed him the sum of one dollar and sixty cents, for which he had given defendant an order on Yarner, which the latter, as drawee, declined to pay on the ground that he owed the drawer nothing, and that the order was drawn on him without authority. The defendant, thereupon, insisted on the prosecutor’s paying the amount, it appearing that he also was working on the-father’s farm. This the prosecutor peremptorily declined to do, with an oath, and walked off, leaving the goods on the' ■counter, and ordering defendant and his .own brother, who was present, to take the articles and carry them to his (the owner’s) house. Defendant then, in presence of the brother, and of Yarner and several others, openly picked up the packages charged to have been stolen, and walked out of the store with
The question presented is, whether this was a larceny, or a mere trespass. The line of demarcation between the. crime and the mere civil tort, in this class of cases, is in many instances-very difficult of distinction. It is a general rule, sometimes said to be liable perhaps to a few exceptions, that every larceny necessarily involves a trespass. — Edmonds v. The State, 70 Ala. 8, (s. c. 45 Amer. Rep. 67.) Yet, it is a principle, coeval withj the origin of our system of criminal jurisprudence, that a mere] trespass, committed by taking personal property, is not a crime,.’ unless it is perpetrated feloniously — that is, a/nvmo furandi, or with the intention to steal. — 4 Black. 281. The wrongful act, according to the better view, must be infected with an intention that is furtive and fraudulent in its nature, which, in all cases, .entirely free from doubt and conflict of evidence, may be determined by the court — otherwise by the jury. — 3 Green. Ev. (14th Ed.) § 157; Green v. The State, 68 Ala. 539; Rex v. Cabbage, Russ. & Ry. 292.
• It was long ago said by high authority, that “ if a man takes-away the goods of another openly before him or other persons, otherwise than by apparent robbery, this carries with it an evidence only of a trespass, because done openly in the presence of the owner, or of other persons who are known to the owner.” 2 Russ. Or. (9th Ed.) * 158. This language is quoted in substance by the learned author from Lord Iiale’s Pleas of the Crown', written more than two centuries ago. — Hale P. C. 509. This rule was fully approved by this court in Rountree v. The State, 58 Ala. 381. See also 2 Wliart. Amer. Law (6th Ed.), § 1786; 2 East P. C.661. We adhere to this principle, although it does not seem to be announced, in its broadest scope, by some .of our American text writers, at least in the more recent editions of their works on criminal jurisprudence. — 2 Bish. Cr. L. (7th Ed.) §§ 840, .758; 1 Whart. Cr. Law (8th Ed.), §§ 883, et seq. But see 2 Whart. Amer. Cr. Law, (6th Ed.) § 1786.
The facts of the present case did not, in the light of this principle, constitute larceny. The taking was open and in the presence of the prosecutor’s brother, who had constructive custody of the goods, and several others were also present. It had no element of secrecy or furtiveness, such as usually characterizes the crime of theft, nor was there any subsequent attempt to conceal the property taken. The fact that the goods were seized by defendant, to satisfy his claim for wages, would not, perhaps, it is true, amount to such bona fide color of claim as to be sufficient, in itself and alone, clearly to rebut a felonious intent. This, however, in a similar case has been held a question of sufficient doubt to be submitted to a jury.— Com. v.
The case of McMullen v. The State, 53'Ala. 531, while fully recognizing the foregoing principle, lays down the rule that the question of intent in all cases of this character must be left to the jury. The better rule, as we have said above, is, that in all cases free from doubt, where the evidence is not conflicting, the whole question is one for the court. "Where the facts are disputed, and the inference to be drawn is not clear, it should be left to the determination of the jury.' — Green v. The State, 68 Ala. 539. On this point McMullen's case, supra, must be overruled.
The case of McCourt v. The People, 64 N. Y. 583, is an authority in full accord with these views. There the defendant stopped at the prosecutor’s house and asked for some cider, for which lie offered to pay. It was refused him by the prosecutor’s daughter, and he, thereupon, openly took the cider in the presence of her and of another. The court refused to sustain a conviction, saying: “ Every taking by one person of the property of another, without his consent, is not larceny; and this, although it was taken without right, or claim of right, and for the purpose of appropriating it to the use of the taker. Super-added to this, there must have been a felonious intent, for without it there was no crime. It would, in the absence of such intent, be a bare trespass, which, however aggravated, would not be crime. It is the criminal mind and purpose going with the act, which distinguishes a criminal trespass 'from a mere civil injury.”
The court should in this case have given the general charge, that, if the jury believed the evidence, they should acquit the defendant. The facts in evidence did not authorize the inference of the requisite -a/nimus furandi, or criminal intent to' steal.
Reversed and remanded.