60 Miss. 323 | Miss. | 1882
delivered the opinion of the court.
The bill of exceptions recited that the presiding judge in the court below, of his own motion, prepared a written instruction which, in the presence of the jury and against the protests of the defendant, he handed to the district attorney and this officer at once passed it back to the judge with the request that it might be given in charge to the jury; which was forthwith done.
To this action of the judge, in thus volunteering instructions in the interest of the State the defendant excepted. Our statute (Code 1880, sect. 1740) permits the modification by the judge of the written instructions asked by either party, and this power of modification may undoubtedly be exercised as well by giving a wholly new instruction, supplementary and amendatory of those asked, pointing out the limitations
We are not disposed to hamper and abridge the court in the exercise of this valuable power, nor to prescribe too strictly the shape which the modification must take; but it is manifest from the language of the statute that the Legislature intended to deny the judge the power of originating independent instructions of its own motion, not called for or rendered necessary by those requested by counsel.
The instruction prepared by the judge in this case was not in modification or explanation of those asked on either side, and evidently was not so regarded by him, else he would not have resorted to the expedient of handing it to the representative of the State in order that a request might be preferred by that officer in connection with it:
Clearly that which the statute intends to forbid cannot be rendered admissible by so idle a ceremony as this. The judge having no right to prepare and give it of his own motion, did not acquire auy by the course adopted.
The second instruction given for the State informed the jury that if the accused sold property which he knew did not belong to him, and appropriated the proceeds to his own use, they should find him guilty of larceny. This was erroneous in two aspects. It was not claimed that the accused thought that the animal alleged to be stolen belonged to him, but that he sold it under the belief that it was the property of his wife. Neither is it necessarily true that selling property which the seller knows does not belong to him, is larceny. Under some circumstances it might amount only to a breach of trust, and under others to obtaining money under false pretences. A felonious taking is essential to larceny, and a sale might take place where there had been no such taking.
Reversed and new trial.
