59 So. 2d 74 | Miss. | 1952
Appellant was indicted in the Circuit Court of Pike County on a charge of larceny, being specifically charged with the theft of a shotgun of the value of $23, the personal property of J. Y. Sistrunk. He was tried and convicted and sentenced to pay a fine of $100 and costs.
The proof consisted of the testimony of only two witnesses introduced by the State, namely, J. Y. Sistrunk,
At the conclusion of the evidence, appellant moved the court to exclude the evidence and direct a verdict for the defendant and this motion was overruled. Appellant offered no evidence and requested a peremptory instruction which was refused.
In view of our conclusion, we consider only appellant’s assignments that the trial court erred in refusing to grant the requested peremptory and that the judgment of conviction is not sustained by the evidence.
We are of the opinion that the evidence is insufficient to establish the crime of larceny, and that appellant’s request for a peremptory instruction should have been granted. In Simmons v. State, 208 Miss. 523, 44 So. (2d) 857, 858, the court quoted with approval the following from 32 Am. Jur., p. 896, Sec. 10: “Generally speaking, and in the absence of statutory modifications, it is essential to every larceny that there be (1) a felonious or fraudulent taking’ or caption, accompanied by (2) the carrying away or asportation by one person of (3) the personal goods or property of another which may be the subject of larceiry. Such taking must be (4) without the consent and against the will of the owner,
The evidence fails to prove.a felonious or fraudulent taking of the gun without the consent of the owner, and with a felonious intent on the part of the taker, existing at the time of the taking, to steal the same. All that the record discloses is that Sistrunk loaned the gun to appellant and that appellant has not returned it. The essential elements of the crime of larceny are not proven. We are of the opinion, therefore, that the trial court should have peremptorily instructed the jury to find the appellant not guilty. Young v. State, Miss., 18 So. (2d) 457. It follows that the judgment of the court below is reversed and the appellant discharged.
Reversed and appellant discharged.