People v. Gillis

6 Utah 84 | Utah | 1889

Sandeord, 0. J.:

Tbe respondent was indicted by tbe grand jury, and tried on a charge of grand larceny. He was found guilty. A motion for a new trial was granted, and an appeal from tbe order granting a new trial has been taken to this Court.

Tbe evidence below discloses that tbe defendant bad stated to tbe pound-keeper that a certain animal which be pointed out, then confined in tbe pound, belonged to him, and sold it to tbe pound-keeper for $11. It was shown that tbe accused did not own tbe beast, and never bad bad it in bis possession. Tbe pound-keeper, after paying the money, took it from tbe pound, and turned it out on bis range. Shortly afterwards tbe animal was claimed by its rightful owner. It is contended on tbe part of the appellant that the accused is guilty of larceny within the meaning of the statute defining that offense, and that the taking of the animal from the pound by the pound-keeper was a taking by the accused. We think the Court did not err in ordering a new trial. It is a well-settled rule that, with probably a few exceptions, larceny necessarily involves a trespass, and there can be no trespass unless there is an actual or constructive taking of possession, and this possession must be entire and absolute. 3 Greenl. Ev. § 154. There must not only be such caption as to constitute possession or dominion over the property for an appreciable moment of time, but also an asportation, which may be accomplished by any removal of the property from its original situs. In this case the accused never had any dominion over, or possession of, the animal. To constitute larceny, the possession of the owner must be so far changed as that the dominion of the trespasser shall be complete, and it would seem that there can be no asportation, within its legal meaning, without a previous dominion. The facts presented do not constitute the offense of larceny. The appeal must be dismissed, and the order below should be affirmed.

Hendeeson, J., and Boreman, J., concurred.