Delk v. State

• Decision Date: 15 November 1886
• Citation: 1 So. 9,64 Miss. 77
• Court: Mississippi Supreme Court
• Parties: JAMES DELK v. THE STATE

1 So. 9

64 Miss. 77

JAMES DELK v. THE STATE

Supreme Court of Mississippi

November 15, 1886

APPEAL from the Circuit Court of Kemper County, HON. S. H. TERRAL Judge.

James Delk and Tony Carter, charged with stealing a jack, the property of D. H. Garner and J. W. Carter, were jointly indicted for grand larceny. Tony Carter having pleaded "guilty," testified on the trial of James Delk that Delk came to "my house and said he wanted me to go with him and help kill the jack. Delk went to his house and got a pair of plow lines and we went to the lot, and he went in the stable and put the rope on the jack and led him out of the stable and tied him to the fence; then we put another rope on him with a noose in it, and we got hold of it and begun to pull, and the jack begun to make a right smart noise and Jim turned loose the rope and went up to him and stopped up his nose till he died." This was at night. The dead body of the jack was found next morning fifteen or twenty feet from the stable door, his neck just back of the head being badly bruised. There were many circumstances which corroborated the testimony of Tony Carter.

The court refused to give the fifth instruction asked for by the defendant. It is as follows: "The court instructs the jury that although they may believe from the testimony that the defendant, Jim Delk, entered the jack lot as testified by the witness, Tony Carter, and took the jack from the stable in said lot, the door of the same being already open, and carried him ten or fifteen steps from said stable, but not outside of said lot, and then killed the said jack, as related by the said witness, Tony Carter, yet such carrying away was not sufficient to constitute larceny, and the jury should acquit of the crime of larceny."

The defendant was found guilty, and he appealed.

Affirmed.

Walker & Hall, for the appellant.

1. The case at bar is not similar to the case of Hamilton v State, 35 Miss. 214, or the case of Warden v State, 60 Miss. 638. In both of those cases it is at least doubtful whether the taking was from a desire of gain or some other motive. It is clear, however, that there was asportation in both cases.

Was there any asportation in the case at bar? If the testimony is true, the intent of appellant was perfectly clear the moment he entered the lot. He went to kill the jack then and there. He did not remove him from his little inclosure of one-quarter or one-half acre lot. It is true Tony Carter says he led him out of the stable, the door of which was open, but this is no more of a carrying away than it would be for a man to shoot down maliciously a cow in a pasture, after enticing her with a bundle of fodder to turn her head to him or to come nearer.

2. The old text-books and decisions held that there were three essential elements in larceny, caption, asportation, and conversion. And in many States and by some text writers it is still held that the taking, to constitute larceny, must be animo furandi, or, as the civil law terms it, lucri causa.

3. In the case at bar there was not only no taking lucri causa, but there was no carrying away.

J. P Walker, for the appellant, argued the case orally.

T. M. Miller, Attorney General, for the State.

1. The old notion that lucri causa is essential in larceny is no longer recognized. It is sufficient that there be a felonious or fraudulent taking, with intent to deprive the owner of his property.

In Hamilton v. State, 6 Geo. 214, the court quotes with approval from the report of the commissioners of the crimial law in England as follows: "The ulterior motive by which the taker is influenced in depriving the owner of his property altogether, whether it be to benefit himself or another, or to injure any one by the taking, is immaterial." I ask the attention of the court to the views of Judge Handy in the case cited on pages 219 and 220. See also 2 Bish. Crim. L., §§ 847 and 848. "So...