State v. Davis

22 La. Ann. 77 | La. | 1870

Howe, J.

The defendant has appealed from a judgment rendered upon the verdict of a jury finding him guilty of larceny. It appears from the bill of exceptions that the copper pipe, alleged to have been the subject of the larceny, was permanently affixed to an engine, which was itself permanently affixed by bricks and mortar to a sugar house; and that the counsel for the accused requested the court to charge the jury as follows:

1. That larceny can not be committed of things that partake of the realty.

2. That copper pipe affixed to an engine, which is affixed by masonry to a building, does partake of the realty, and that larceny can not be committed thereof.

The court refused these instructions, and, on the contrary, charged the jury that the statute of T805, by which the Legislature of Louisiana adopted as the basis oí the caminal jurisprudence the. common law of England, should be intended and construed as embracing the statute of 7 and 8 George IV., chap. 29, by the forty-fourth section of which the stealing or feloniously removing of metal from a building was made a felony; and that the effect of this statute upon the laws of Louisiana is such as to include within the definition of larceny, such crimes as. stealing or feloniously removing some things that do partake of the realty, such as copper pipe when affixed to buildings and the like.

We are constrained to think that this ruling was erroneous. Whatever may have been the effect of our statute of 1805, it could not have embraced the statute of 7 and 8 George IV., chap. 29, inasmuch as the latter was not enacted until after the accession of that monarch in the year 1820. We presume the learned judge a quo had in mind the statute of 21 George III., chap. 68, by which the taking of certain things-, attached to the realty was declared to be a felony; but we do not think that the enactment of this statute, prior to 1805, should be held to> affect the definition of the word “larceny,” as used in the twenty-eighth section of the act of March 14, 1855, under which this prosecution was instituted. The offense denounced by that section is larceny at common law — pure and simple — the felonious taking and carrying away of the personal goods of another, without his consent, and with intent to convert them to the use of the taker.

It may well be, however, that the State can yet establish, under the pleadings heroin, a case of larceny; and

•It is therefore ordered that the judgment appealed from be avoided and reversed, and the verdict of the jury set aside, and the cause-remanded for a new trial.