Warden v. State

60 Miss. 638 | Miss. | 1882

Chalmers, J.,

delivered the opinion of the court.

The proof indicated that appellant surreptitiously took the mule of one McNeil and led it into the swamp and killed it. Whether the killing was immediately upon the taking or took place afterwards, and was for the purpose of concealment (there was an attempt to consume the carcass by fire) does not appear. It is proved that there was bad blood between the appellant and the owner of the animal, and it is highly probable that the taking was done with no desire for gain, but .solely from malice. Under these circumstances the court below instructed the jury that the motive which prompted the taking was immaterial, and that a furtive and fraudulent taking without pretence or claim of right, with intent wholly and permanently to deprive the owner of his property, though without intent or desire for gain on the part of the taker, was larceny, and if they believed that the mule was thus taken they should find the accused guilty as charged.

This doctrine is in accordance with the ruling of this court in Hamilton v. The State, 35 Miss. 214., where the question was fully considered and settled. It seems to meet the approval also of most of the modern writers on criminal law and to be sanctioned by many cases both English and American. 2 Bishop’s Cr. Law, sects. 842, 843, 844, 845, 846, 847, 848; 2 Whart. Cr. Law, sect. 1781, et seq.; 2 Russ, on Cr., sect. 145, et. seq.

While the doctrine that there, can be a larceny where there exists no desire for gain on the part of the taker is by no means universally recognized, and is distinctly repudiated by many cases, we do not feel disposed to overrule the deliberate adjudication of this court on the question, in view of the fact that our statutes have undergone several revisions since the case of Hamilton v. The State, supra, was decided without change in this regard, and even apart from this consideration much may be said in support of the doctrine. That the appellant killed the mule after he had carried it away, and in so doing was guilty of malicious mischief, does not of course free him of the guilt of the larceny already incurred.

The instruction given bj? the circuit judge of his own motion was in explanation and modification of those prepared by counsel and does not fall within the rule announced in Watkins v. The State.

Affirmed.