20 Wis. 74 | Wis. | 1865
The first instruction asked for on the trial by the defendant, however true as an abstract proposition of law, yet, without some explanation, was calculated to mislead the jury. The evidence shows most clearly that the defendant was in the employ of Buhler, and had been sent from Berlin with the team to take some beer to Omro and Waukau, with instructions to bring back the kegs and money, returning by the way of Eureka the same day. It appears that, after disposing of most of the beer at Omro, the defendant threw the empty kegs and
Tbe court was further asked to charge tbe jury, that if they should find from tbe evidence that tbe defendant bad tbe property for tbe purpose of going to Omro and other places to carry tbe beer, and that at tbe time be took tbe property from tbe owner be really intended to use it for that purpose, and bad no intention, at tbe time be took possession of it, to steal, but, finding himself in tbe possession, be afterwards formed tbe intention of converting it to bis own use instead of usmg it for tbe purpose originally designed, then tbe taking would not amount to a felony, nor would it constitute larceny. This mstruction is obviously incorrect, since it assumes that to constitute larceny tbe felonious intent must have existed when tbe defendant was first intrusted with tbe custody of tbe property. It was not necessary that tbe jury should find that tbe animus furancli existed at tbe time tbe defendant left Berlin for Omro. It was enough that tbe intention existed! while be bad charge 'of tbe property as servant to tbe owner, and that it was carried into' effect by converting tbe property to bis own use. The People v. Call, 1 Denio, 120; 2 Russell on Crimes, 157-8.
Tbe court was further reqrrested to charge tbe jury that there must be an actual conversion of tbe property to constitute larceny ; that conceding that tbe defendant procured tbe possession of tbe property-for tbe purpose of stealing it, and that be offered to sell it or a portion of it, but did not perfect tbe bargain and no sale was made, in that case tbe offense of larceny would not be complete. Tbe difficulty with this instruction is, that it assumes that there could be no conversion of tbe property unless tbe defendant bad actually sold it. As a matter of fact be did sell tbe harness. He likewise offered to sell tbe
There was some evidence which tended to show that the defendant was intoxicated at Oshkosh, where he offered the property for sale. And the court was asked to charge the jury, if they found that he was sober at the time the property was delivered to him, and that he then had no intention to convert it to his own use, but afterwards became so iptoxicated that he did not know the consequences t>f his acts, and while in this condition disposed of, or offered to disjDose of, the property, that then they should find him not guilty. The court refused to give this instruction, but charged the jury that the intention of the defendant in the commission of the act was the gist of the crime of larceny, and that a person who, from drunkenness or other cause, may have lost his understanding, cannot in contemplation of law be accountable for his intention; that although drunkenness was no excuse for the commission of many crimes, yet it was of great importance as affecting the question of in
We are satisfied that the circuit court charged the jury upon the point of drunkenness quite as favorably to the defendant as the law would allow. The jury were told that if the defendant, at the tune he offered the property for sale, was so drunk as to be unable to form any intention, that is that he was so drank as not to know what he was doing, then he should be acquitted, unless the evidence showed that the felonious intent existed when he was in the full and undisturbed possession of his mental faculties. We certainly think there was nothing in all this of which the defendant can complain.
By the Court. — The exceptions in this case are overruled, and the judgment of the circuit court affirmed.