Lyon v. State

61 Ala. 224 | Ala. | 1878

MANNING, J.

It is charged in this cause, that “before the finding of this indictment,” defendant “ feloniously took and carried away twenty pounds of cotton, a part of an outstanding crop of cotton, the property of B. A. Rush,” &c.

The first ground upon which the motion in arrest of judgment is based — the omission of a limitation to the time, when the offense is alleged to have been committed, to a period subsequent to the enactment of the law creating it — was the subject of consideration in the case of McDowell v. The State, ante p. 172. And on the authority of that case, we hold the reason assigned insufficient to support the motion.

Nor, under, the practice now established and which this court has recognized, though often reprehending it, can we hold that the motion to arrest ought to have prevailed because the Christian name of the owner of the cotton involved, was not set out entire instead of by initials; it being proved that he commonly wrote his name B. A. Rush, and was known by it as well as by the name of Benjamin A. Rush. — Thompson v. State, 48 Ala. 165; Morningstar v. State, 52 Ala. 407; Franklin v. The State, id. 414; Gerrish v. State, 53 Ala. 480. In this last case, in reference to the accused himself, as distinguished from one not a party to the cause, we said: “ However proper it may be in the hurry of daily life, and unimportant occasions, to write one’s own name or the names of others, in the shortest intelligible manner, it is not allowable to do so, in so grave and solemn an instrument, as an indictment by a grand jury under oath, which denounces the person denominated in it as a violator of the law, with the intent to have him sought out from the rest of the community and arrested and brought to punishment. And solicitors and grand jurors ought to be diligent to find out and insert in their indictments the true names of those whom they thereby accuse,” (p. 480). It often happens that there are in a community more persons than one of the same surname and whose Christian or baptismal names, though different, begin with the same initial letters. And much undeserved reproach and cruel injury might be inflicted, especially after a generation had passed, upon the family of one, by the fact that another of them, had been indicted and convicted of larceny, perjury or some other heinous crime, by a surname and initials which equally well described both. Such evil was prevented by the common law practice of designating the person accused in the indictment, by his place of residence, occupation and station in society, as well as by his true and entire name, when this could be ascertained. And since the former particulars are not now required, and are rarely used, it is only the more important that a grand jury should, in the words of their oath, “diligently inquire” concerning the true Christian name of a person to be presented as a.criminal, before they indict him by initial letters, because “ his name is unknown to ” them. The statute says the indictment “ must be certain as to the person charged;” and it is a duty to take pains to make it so. — Code of 1876, § 4786 (4113).

The prosecution is under the statute which makes the felonious taking and carrying away of a part of an outstanding crop of cotton, grand larceny; a law designed to repress an offense which had recently become so common and mischievous as greatly to discourage people engaged in agriculture. The defendant was employed to pick cotton from the stalk by Mr. Eush, at a certain price per hundred pounds, and was entitled to keep together, the cotton so picked until the close of the day, when it was to be weighed. Having filled the sack into Avhich he put the cotton as he picked it, defendant was seen to go from the field and carry it aAvay to his father’s house, about eleven o’clock in the day; and it is on this fact, (omitting circumstances proved), that the charge is founded.

We have heretofore held that inasmuch as the parts of an outstanding crop savor of the realty, instead of being personal chattels — a defendant can not under an indictment like the present, be convicted of petit larceny. And in his excellent argument, counsel for defendant in this cause, insists that since the cotton was picked from the stalk, in the course of defendant’s employment to pick it, by the express authority of Eush, the owner, the offense could not have been committed in respect of such cotton, — and that if any offense was committed it was by the taking away of the cotton after its severance and when it had become personalty, for which there could be no punishment under this indictment.

It is true the act complained of Avas not a trespass, in the ordinary meaning of that Avord, and that generally larceny is committed by a trespass. In some cases, though, this is not so. In those of bailment, especially, goods of another may be lawfully obtained in bulk or packages for a particular purpose, as for transportation by a carrier, and yet the bailee be guilty of larceny, by separating portions of them from the rest, and disposing of them for his own use. So, one may apply to a keeper of horses to obtain one on hire, and have the horse delivered to him by the owner; still, if the pretended hirer, intended ab origine, to get the animal for the purpose of selling him and depriving the owner of his property, and does so soon afterwards, he is guilty of larceny. Though no trespass was committed and he received the horse from the hands of the owner, yet if he contrived so to get-him, animo furandi, the taking and carrying away were felonious. And the perfidity of his conduct after getting the horse, coupled with his knowledge of the ownership, is evidence of an intention to steal from the beginning.

We think such a case, and one like the present, may stand upon the same principle. Deception and treachery may be practised in each. In one there is a severance from the realty,. Avhich is the taking that must be felonious, if any is, and in the other the taking of a horse, — both, by the authority and with the consent of the owner. Now, if in the former case. the accused himself or by others, contrived to get himself hired to pick cotton with the felonious intent of gathering it and taking it away for his own use, and collected it from the bolls in which it grew, with that intent, and appropriated it to his own benefit or that of another, and thus deprived the owner of it, he would, in our opinion, be guilty of the crime charged in this indictment, just as the hirer of the horse who obtained him by pretending to want him for only a short ride, and then sold him, would be guilty of larceny.

It is obvious, however, that the testimony should clearly tend, in such a case as the present, to show that there was a felonious design existing when defendant engaged himself to pick the cotton, which was afterwards carried into effect, of gathering it and against the will of the owner appropriating it to his own or some other person’s use. For the law presumes that one who has been not only authorized, but employed to gather the cotton of another, and promised a reward for doing so, is honestly performing his engagements. And something more than the single fact, that in the course of the day, he afterwards took away and secreted, if he did do so, cotton which he had been gathering and which had thereby become personalty, is necessary to show that he picked it from the bolls with that intent. Such evidence might tend to prove larceny of the cotton after it was gathered; but that is not the offense here charged. And of this offense, the jury should not find defendant guilty, unless by fair inference from testimony tending to show it, — they are convinced beyond a reasonable doubt that he engaged himself to pick the cotton and picked it with the intent then actuating him, of stealing it. If he was guilty only of the larceny of the article taken, as a personal chattel, after its .severance from the bolls, the prosecution should be for that offense, and not for the felonious taking and carrying away of a part of an outstanding crop. — See State v. Chambers, 6 Ala. p. 856.

There is another feature of this case which was the subject of comment. Defendant was entitled to keep the cotton he picked until the close of the day, and then it was to be weighed. And this led to a discussion of the law of bailment, and embezzlement in connection with this case. But these-, relate to personal chattels. If appellant was guilty at law-under this indictment, he was so in respect of what was done-before the cotton was severed from the realty, so as to become-personalty that could be carried from the field. And if the contract with Bush was entered into on the part of defendant, merely as a means to enable him to gather the cotton and feloniously carry it off, it does not matter what terms or conditions were added concerning things that were to be after-wards done. This right to the possession until the close of the day, was a very proper topic of argument before the jury, in explaining away what might appear to be criminal in the act of carrying the cotton out of the field, when that was relied on as evidence of an intent to steal in the first instance— but does not require consideration from us.

We have already mentioned that the felonious intent must have accompanied the act of gathering the cotton, in order to justify a conviction of defendant on this indictment. This proposition was embodied in the seventh of the charges asked by defendant and refused by the court. In this refusal the circuit judge erred. The other charges requested, or most of them, needed some qualification, of a kind indicated in this opinion, to prevent the jury from being mislead by them, and were therefore properly refused.

Let the judgment of the Circuit Court be reversed and the cause remanded.