The plaintiff in error, John R. Mercer, defendant below, was charged by information in the district court of Okmulgee county, Okla., with the crime of grand larceny allegedly committеd in said county on June 6, 1948. The information charged that he feloniously did take, steal and carry away from the G & H Machine & Supply Company, the owner, 6 joints of 8%" O.D. pipe, 10 joints of 4" pipe, 13 joints of 7" pipe of the value of $877.50, without the knowledge or consent of said owner, and with the intent on his part to appropriate the same to his own use and benefit and permanently deprive the owner thereof. He was tried by a jury, convicted and his punishment fixed at one year and one day in the penitentiаry, and judgment and sentence entered accordingly.
The evidence of the state was to the effect that the pipe herein involved was in the possession of the G & H Machine & Supply Company located just south of Ok-mulgee, shortly before it was stolen early in June of 1948. The pipe was marked and could be readily identified as it was after the theft. After it was stolen it was discovered and identified on the premises of Newt .Ellis, a junk dealer in Henryetta, Okla. The evidence is clear and conclusive that the pipe was stolen from the G & H Machine & Supply Company, but there is not one scintilla of evidence to connect John R. Mercer with the larceny thereof. The rеcord is entirely silent as to who actually took and carried away the said pipe. The state’s case tends to establish a case of possession of stolen property. It shows that shortly after the theft Mercer arranged with a colored man whom he had never known before, by the name of Hully Taylor, who lived a
The foregoing summary of the evidence conclusively shows the theft of the pipe in question, by somebody as allеged in the information, but not by the defendant. There is no evidence, either direct or circumstantial to establish he was a party to the asportation or taking оf the pipe involved from the G & H Machine & Supply Company premises. It conclusively shows the defendant was in possession of and sold stolen property, but the charge in the information is that of grand larceny as defined in Title
“Where larceny has been committed and asportation has terminated) one not connected with original taking, either as principal or as aider or abettor, but who thereafter, with knowledge that the property has been stolen, assists in concealing, selling or destroying stolen рroperty, is not guilty of larceny.”
In Cook v. State,
“With this statement of the evidence and the law applicable thereto, it will at once be seen that the court should have sustained the motion of defendant to direct a verdict of acquittal. And this is true after giving the State every logical inference as to the guilt of defendant. This Court in a number of cases almost identical with the facts here has announced the applicable law * * ))
Citing and quoting in support thereof, Dismore v. State,
“The first requisite of larceny is taking possession of goods by the thief. Taking and carrying away being еssential elements of the crime of larceny, no subsequent connection with the property stolen can make one guilty of theft who was not connectеd with the original taking.”
In the body of the opinion this court said:
“It is true that the possession of recently stolen goods is a strong circumstance to be considered in a larceny prosecution; but the possession of stolen property alone, and without any additional testimony, will not sustain a charge of larceny. It may be slight and wholly circumstantial, but there must be some еvidence to connect the defendant with the original asportation. When the State does not have this proof the accused should not be charged with lаrceny, but. with the offense of receiving stolen property.”
Under the facts herewith presented it is not necessary for us to consider the defendant’s other assignments of error since the same errors committed in this trial probably will not occur in the event of a subsequent trial for receiving stolen property.
In light of the foregоing facts and the law applicable thereto, as hereinbefore set forth, it is clear that the trial court erred in not sustaining the defendant’s demurrer to the evidеnce, and his motion for a directed verdict of not guilty. Under the facts in this case the defendant should have been informed against for receiving stolen property, Title