Frazier v. State

• Decision Date: 28 June 1888
• Citation: 85 Ala. 17,4 So. 691
• Parties: FRAZIER v. STATE.
• Court: Alabama Supreme Court

4 So. 691

85 Ala. 17

FRAZIER v. STATE.

Supreme Court of Alabama

June 28, 1888

Appeal from circuit court, Wilcox county; JOHN MOORE, Judge.

The appellant, John Frazier, was indicted for the larceny of a hog, was tried and convicted, and was sentenced to hard labor for two years. The facts of the case, as shown by the bill of exceptions, are that some time before the finding of the indictment, the defendant went out in the field of one Sheffield, shot the hog down in a little pine thicket, and covered the hog so killed with pine limbs and pine tops that, on the evening of the shooting, the defendant went to the owner of the hog, in company with some one else, and told him, the owner, that they had found one of his hogs killed in his field, designating the field, but that it was too badly spoilt for use; upon this representation, the owner of the hog told him to take the hog, as "he reckoned it would do for soap-grease, and that, if they would clean it, they might have it;" on the next morning he went to the house of the defendant, and found the hog, which had been killed the evening before, cleaned and perfectly sound; and that he took the hog, and carried it home for his own use. Upon this evidence, the defendant requested the court to give the following charge, which the court refused to do, and the defendant thereupon excepted: "If the jury believe from the evidence that John Frazier killed Mr. Sheffield's hog by shooting him with a gun, and if they further believe that he did not move the hog after he was killed, then they must acquit the defendant of the larceny."

T N. McClellan, Atty. Gen., for the State.

CLOPTON J.

It has been held that to shoot and then chase a hog with felonious intent, over which the defendant was prevented from acquiring dominion, is not a sufficient caption and asportation to constitute larceny. Wolf v. State 41 Ala. 412. On the other hand, a charge has been held to be correct which instructed the jury that if the defendant shot and killed, and then took hold of the hog, and cut its throat, this would constitute a taking and carrying away in the meaning of the law. Croom v. State, 71 Ala. 14. It is said, generally, that, to constitute the offense, there must be a wrongful taking possession of the goods of another with the intent to deprive the owner of his property, either permanently or temporarily. The accused must have acquired dominion so as to enable him to take actual custody or control, followed by asportation, which severs the property from the possession of the owner to some appreciable extent. The caption may be constructive, as when possession is obtained by trick, fraud, or deception. If the defendant shot and killed the hog, with the larceny of which he charged, in a pine thicket in the field, with felonious intent, and covered it with pine tops, in order to conceal it until he could return and secretly remove it, and if he subsequently removed it in pursuance of the previous felonious intent, there was, in the legal acceptance of the terms, a taking and carrying away sufficient to complete the offense, though the removal may have been with the consent of the owner, if such consent was procured by intentional misrepresentation and deception. State v. Wilkerson, 72 N.C. 376; Fulton v. State, 13 Ark. 168. The charge requested by the defendant ignored these material facts, which there was evidence tending to prove, and was misleading. There is no error in its refusal. Affirmed.

NOTE.

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