59 Miss. 273 | Miss. | 1881
delivered the opinion of the court.
This case must be reversed because of the error of the court in refusing to grant the fourth instruction asked by the defendant. By it the court were asked to inform the jury, that, if property alleged to be stolen is shown to have been taken openly and in the presence of the owner or other persons, “ this carries with it evidence that it is only a trespass.” This was a correct statement of law (McDaniel v. State, 8 S. & M. 401), and there was testimony in the case which warranted it. True, it was the testimony of the accused alone, and it was contradicted by the persons in whose presence he testified that he took or received the animal, but this did not affect his right to have the principle of law announced to the jury. His own testimony, however it may be regarded by the jury, stands upon the same footing as to the principles of law governing the case as that of any other witness.
For the error in refusing the fourth charge the judgment must be reversed and new trial awarded.
Suggestion of error was then made by the Attorney General, who filed in support of it a written argument.
The fourth charge sustained on the dictum in McDaniel v. State, 8 S. & M. 401, is improper, because it is upon the weight of evidence, and is not law. It contains one error at least, for larceny may exist, although the taker has no intention to convert the property to his own use. Hamilton v. State, 35 Miss. 214. This dictum is taken from Roscoe’s Crim. Evid. 644, where it is copied from 1 Hale P. C. 509, and both authors use the language about the presence of witnesses, in referring to the weight to be given circumstances in proving the intent, and not in speaking of presumptions of law. Open, taking is a mere circumstance to be weighed by the jury with the other facts, in order to determine the taker’s intention, and if they find the animus furandi from the evidence, the result is not altered by the fact that the taking was before witnesses. East says that the circumstances, where the defence is that the taking was only a trespass, must guide the judgment, and it is the jury’s province to determine the intent. 2 East P. 0. 661, 685. Hawkins says that larceny from'the person of a man without putting him in fear is done either: 1. openly and avowedly before his face ; or, 2. privily, without his knowledge. 1 Hawk. P. 0. 211 and note 1. Archbold says that the felonious intent is an essential ingredient in larceny, and whether it exists is a question which the jury must decide from the words or acts of the defendant, or the nature of the transaction. 2 Arch. Or. PI. 1185. Blackstone says that the ordi
delivered the opinion of the court.
It is suggested by the Attorney General that the court below committed no error in refusing to instruct the jury that if