Akroid v. State
| Decision Date | 23 March 1914 |
| Docket Number | 17317 |
| Citation | 64 So. 936,107 Miss. 51 |
| Court | Mississippi Supreme Court |
| Parties | A. H. AKROYD v. STATE |
APPEAL from the circuit court of Jones county, HON. PAUL B. JOHNSON Judge.
A. H Akroyd was convicted of larceny and appeals.
Appellant assigns among other errors, the granting of the only instruction given for the state, which is as follows "The court charges the jury, for the state, that if you believe from the evidence beyond a reasonable doubt that the defendant unlawfully and feloniously took, stole, and carried away the finger ring, of the value of thirty-five dollars, of the property of M. Jacobs, as charged in the indictment, then it is the sworn duty of the jury to find the defendant guilty as charged in the indictment."
He also assigns as error the action of the court in permitting the district attorney to cross-examine the defendant, who testified in his own behalf, as to certain alleged wrongful dealings with an associate in the state of Louisiana. He had no counsel in the lower court, and his evidence shows that he first referred to the dealings in Louisiana, and the district attorney, without any objection from him, went into the matter further on cross-examination.
On appeal, one of the assignments of error is predicated on certain remarks alleged to have been made by the judge to the jury as they were retiring to consider their verdict, to wit The record however, shows that no bill of exception was taken, and the remarks of the court, if made at all, are not preserved in the record.
Affirmed.
D. B. Cooley, for appellant.
To constitute the offense of larceny, the goods alleged to have been stolen must have been wrongfully or fraudulently taken and carried away, with the intent to convert them to the taker's own use. If there be no such intention, it amounts to a trespass only, and not larceny. If the taken be open and in the presence of the owner, or other persons, it carried with it evidence that it is only a trespass.
To constitute larceny, a felonious taking is essential. If the original taking is lawful and in good faith, a subsequent fraudulent conversion is not larceny, because there is no trespass. McDaniel v. State, 8 S. & M. 401; Littlejohn v. State, 59 Miss. 276; Buchanan v. State, 5 So. 618; Beatty v. State, 61 Miss. 18.
I submit that it is only necessary to define the offense of larceny to demonstrate, beyond question, that the evidence in this case wholly fails to make out the crime of larceny. Was there a trespass in the taking of the ring? That the defendant came into the lawful possession of the ring is established by the evidence of every witness. The ring was delivered to defendant by Jacobs after the price was agreed upon; and the only conflict in the evidence is as to the time when the ring was to be paid for. There being no trespass in the taking of the ring by the defendant, the giving of any instruction, predicated upon the guilt of the defendant of the crime charged against him, was error. A taking by the voluntary consent of the owner, or his authorized servant or agent, even though with a felonious intent, does not constitute larceny. Lowe v. State, 32 So. 956.
Where the owner of a bill intrusts it to another to take away and get changed and return with the change, the possession of the bill is intrusted to him; and if he afterwards makes off with it, it is not larceny but a breach of trust; 25 Cyc. 25.
J. M. Vardaman, for the state.
The first two assignments of error relate to the instruction given the state by the court and the refusal of the court to instruct the jury to find defendant "not guilty." From a careful reading of the record in this case, I am of the opinion that the facts justified the court in letting the matter go to the jury and submit that the court did this in the proper manner and that his action should be upheld.
The third assignment of error relates to the district attorney being allowed to introduce evidence of appellant's wrongful dealings with a Colonel Faigan in Louisiana. The record in this case shows that the only mention of appellant's dealing with Colonel Faigan appears in appellant's own testimony, which was a voluntary statement by him and I submit that he cannot be heard to complain at this late day of his own error. I assume that the pricks of his conscience prompted him to make the statement complained of.
As the fourth and fifth assignments relate to the law and evidence of the case, I will let...
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