33 S.W.2d 645 | Ky. Ct. App. | 1930
Reversing.
Appellant was charged by indictment with the offense of chicken stealing. The evidence showed that J.R. Hair had lost chickens on two occasions. He found the chickens with a poultry dealer nearby. The dealer bought the chickens in two lots from appellant. Appellant testified that he purchased the chickens from men on a boat going down Cumberland river, but he also told a different story about it on different occasions. He was corroborated in his claim that he bought the chickens from the men on the boat, but the corroboration was not strong. There was enough evidence to take the case to the jury. Conley v. Com.,
Appellant relies on the case of Pardue v. Com.,
Another point urged is that the evidence does not show that the chickens were of the value of more than $2. It is shown that the man who bought them paid $7.45 for the two lots. He weighed them and paid according *746 to the weight. For the first lot he paid more than $3, and for the second lot more than $4. It is suggested that the taking of the chickens was on two separate occasions, and that the sale was on two separate occasions. No attempt was made to have the evidence confined to either one batch or the other, and, without deciding that such a ruling would have been proper if it had been requested, it is sufficient to say that the court committed no error in this respect.
The instructions given are attacked. In the first instruction it is pointed out that the jury was not required to believe, to the exclusion of a reasonable doubt, that appellant was guilty. This should always appear in such an instruction, but it is insisted by the commonwealth that the second instruction told the jury that, if it had a reasonable doubt of the guilt of appellant, it should acquit him. It was held in the case of Dennison v. Com.,
Another complaint about the first instruction is that it did not require the jury to believe that the chickens were taken from the owner with the intent to "permanently" deprive him of them. The word "permanently" was omitted, and without deciding whether that was an error for which the case would be reversed the word should be used in the instructions on the next trial, as it is a part of the old common-law definition of "larceny" that the taking must be with the intent to permanently deprive the owner of the property so taken.
The next complaint is that the instruction did not require the jury to believe that appellant took the chickens with the intent to convert them to his own use. It has always been a necessary element of larceny that the person taking the property must have done so with *747
the intent to convert it to his own use. The instruction was, therefore, erroneous in not embracing that element. The Attorney General so admits in his brief. The court has so held in a number of cases. Davidson v. Com.,
Judgment reversed, and cause remanded for proceedings consistent with this opinion.
Whole court sitting.