King v. State

Decision Date30 June 1916
Docket Number1 Div. 186
Citation72 So. 552,15 Ala.App. 67
PartiesKING v. STATE.
CourtAlabama Court of Appeals

Appeal from Law and Equity Court, Monroe County; W.G. McCorvey Judge.

James King was convicted of larceny, and appeals. Reversed and remanded.

The facts sufficiently appear. The oral charge of the court excepted to is as follows:

"The state, in answer to that part of defendant's contention, says that, although he may have taken the property, that ox, and may have attempted to give the notices as required by the stock law, and sold it, or attempted to sell it, he committed larceny, in that the felonious intent arose after he had gotten possession of it. In other words that state says, contends, that this man, when he was questioned about the lost yearling, refused to tell anything than he knew about it. Well, gentlemen, I charge you that larceny may be committed that way. One may come into the possession of property by taking it up, and afterwards the felonious intent could come into his mind, and if he attempted to sell it, then, in that event, for the purpose of converting it or the proceeds of it, to his own use, in that event the crime would be established."

After giving charge X, the court of its own motion said:

"I want to explain this charge. Notice the reading of it [the court then reread the charge]. Now I have just charged you that that felonious intent might come--felonious intent to appropriate the property to his own use--in other words I might go out there and take property under a bona fide belief that it is my property, but when I went to convert it to my own use, when I undertake to sell it, then the felonious intent must be there."

The same explanation as to charge Y was given by the court.

The following are the charges refused to the defendant:

"(A) To constitute the offense of larceny there must be a trespass in the original taking. One who acquires possession bone fide cannot thereafter commit larceny of the thing so possessed.
"(B) If the animal in question came rightfully into the possession of the defendant, you cannot find him guilty of larceny, even though you believe that he later disposed of it wrongfully.
"(B1) There must be a felonious taking and carrying away to constitute larceny; and, if you find from the evidence that the cow in this case was taken up while running at large, the defendant cannot be convicted of larceny if he afterwards formed the intent to appropriate the property to his own use."
"(D) A necessary element of larceny is a wrongful taking of the personal property of another with intent to steal it. And unless you believe from the evidence beyond a reasonable doubt that the defendant wrongfully took up the animal in question, at the time intending to steal it, you should find him not guilty.
"(E) If the animal in question came rightfully into the possession of the defendant and no trespass was committed in the taking of the animal you should find the defendant not guilty."
"(8) I charge you that before you can convict the defendant of larceny you must first believe from the evidence beyond a reasonable doubt that at the time the defendant took possession of the animal said to have been stolen he intended to convert it to his own use.
"(9) If you believe from any part of the evidence in this case, after considering all the evidence in the case that at the time the defendant took possession of the animal in question he was complying, or attempting to comply, with the stock law, you cannot find him guilty of larceny, even though in fact he did not comply with the stock law in every respect."
"(11) I charge you that larceny is the stealing of personal property, and if you find from any part of the evidence in this case, after considering all the evidence that at the time the defendant took possession of the animal in question he did not intend to convert it to his own use, you should acquit him.
"(12) I charge you that if you believe from the evidence in this case that at the time the defendant took possession of the animal in question he was complying, or attempting to comply, with the law, he could not be guilty of larceny even though he did not in fact comply with the law in every respect."

Hare & Jones and C.L. Hybart, all of Monroeville, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State.

BROWN J.

The question of controlling importance is: Can one who distrains cattle damage feasant be convicted of larceny on showing an intent to convert the property and deprive the owner of the use after it comes into his possession?

"At common law, where cattle trespassed upon the lands of another, the landowner was permitted to distrain the cattle thus damage feasant till their owner should make him satisfaction." 2 Cyc. 400(e); Richardson v. Carr, 1 Har. (Del.) 142, 25 Am.Dec. 65; Bonner v. De Loach, 78 Ga. 50, 2 S.E. 546; 3 Blackstone's Comm. 211.

And under the statute in force in Monroe county, the defendant, if the animal was at large in a district where stock was prohibited from running at large, had the right to take it up and hold it until the proper statutory notice could be given, unless the owner intervened and claimed it and paid the fees allowed by the statute, and after giving such notice, if no claim was made, to sell the animal at public auction. Acts 1896-97, pp. 434-35.

It is a familiar rule that when one acquires the possession of property tortiously, and afterwards conceives and executes the purpose to convert it, he may be guilty of larceny. Weaver v. State, 77 Ala. 26; Dozier v State, 130 Ala. 57, 30 So. 396. Also that where one has the bare charge or custody of property of another, the property being under the dominion and control of the owner, the party having the bare custody may be guilty of larceny if he converts it to his own use with the purpose of depriving the owner of it. Boswell v. State, ...

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  • The State v. Bunton
    • United States
    • Missouri Supreme Court
    • May 28, 1926
    ... ... Barnes, 143 N.Y.S. 885; Jenkins v ... State, 62 Wis. 49; People v. Perini, 94 Cal ... 573; United States v. Weisberg, 258 F. 284; ... Smith v. State, 227 S.W. 1105; People v ... Brenneauer, 166 N.Y.S. 801; State v. Hatcher, ... 76 So. 694; State v. Keelen, 203 P. 306; State ... v. King, 72 So. 552; United States v. Atkinson, ... 289 F. 935; Rosenblum v. State, 98 So. 216; ... Warmoth v. Commonwealth, 81 Ky. 133; Talbert v ... United States, 42 App. (D. C.) 1. (3) Even though the ... court may believe that the conduct of McClure and the ... employee of the bank who received ... ...
  • Hughes v. Holsclaw
    • United States
    • Alabama Supreme Court
    • October 6, 1932
    ...objection to the letter is not within the influence of the statute. Code 1923, § 7705; Ex parte Williams (Williams v. State), supra; King v. State, supra. the well-established rule of evidence, long prevailing before the enactment of the statute, and in no way affected by it, that, "When it......
  • Sweeney v. State
    • United States
    • Alabama Court of Appeals
    • June 21, 1932
    ... ... The ... fault of the contention lies in the fact that the evidence in ... this case conclusively shows that the defendant was a bare ... custodian of the property and when he fraudulently disposed ... of such property all of the elements of larceny could be ... inferred by the jury. King v. State, 15 Ala. App ... 67, 72 So. 552; Fox v. State, 17 Ala. App. 559, 87 ... So. 621; Id., 205 Ala. 74, 87 So. 623 ... Appellant ... insists that the court erred in admitting testimony of other ... acts of defendant, which of themselves constituted similar ... but separate and ... ...
  • Meadows v. State
    • United States
    • Alabama Court of Appeals
    • January 15, 1952
    ...property tortiously, and thereafter forms the intent and executes the purpose to convert it, he may be guilty of larceny. King v. State, 15 Ala.App. 67, 72 So. 552; Weaver v. State, 77 Ala. 26; Dozier v. State, 130 Ala. 57, 30 So. In the case of King v. State, supra, this court had occasion......
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