Holebrook v. State

• Decision Date: 06 June 1895
• Parties: HOLEBROOK v. STATE.
• Court: Alabama Supreme Court

18 So. 109

107 Ala. 154

HOLEBROOK v. STATE.

Supreme Court of Alabama

June 6, 1895

Appeal from circuit court, Jackson county; J. A. Bilbro, Judge.

Frank Holebrook was convicted of larceny, and appeals. Affirmed.

Sam W Tate, for appellant.

W. C Fitts, Atty. Gen., for the State.

COLEMAN J.

The defendant was convicted of petit larceny. The evidence tended to show that the defendant was employed by one Wigginton to carry him from his home by conveyance to the depot, where he intended to board a train. Arriving at the depot, Wigginton left with the defendant a quilt, to be returned to his home which the defendant agreed to do. The defendant carried the quilt to a store, and traded it off for an amount much less than its value. The defendant requested the court to charge the jury that: "If the jury believe from the evidence that the witness Wigginton delivered the quilt to the defendant, to be conveyed back to Wigginton's home, and that the quilt was received by the defendant for that purpose, and, after so receiving the quilt, the defendant conceived the intent and purpose to wrongfully dispose of it he is not guilty as charged." One of the difficulties in distinguishing between larceny and embezzlement consists in the fact that in larceny there must be a trespass, and a trespass is a wrong to the possession. A bare charge of or custody of goods which belong to another does not divest the possession of the owner. It has, therefore, been held that a servant or other person, having the mere custody of goods may commit larceny of them. 2 Bish. Cr. Law, §§ 823, 824, note; 2 East, P. C. 565; 1 Brick. Dig. p. 482, § 487; 12 Am. & Eng. Enc. Law, 768. In Oxford v. State, 33 Ala. 416, 418, it is said: "It is a clear rule of law that, where a party has only the bare charge and custody of the goods of another, the legal possession remains in the owner; and the party in custody may be guilty of trespass and larceny in fraudulently converting the same to his own use." In Rosc. Cr. Ev. § 646, it is said: "In order to render the offense larceny, where there is an appropriation by a servant, who is already in possession, it must appear that the goods were at the time in the constructive possession of the master. They will be considered in the constructive possession of the master if they have been once in the possession of the master, and have been delivered by the master to the servant. But if the goods or...