Ludlum v. State

Decision Date15 June 1915
Docket Number390
Citation69 So. 255,13 Ala.App. 278
PartiesLUDLUM v. STATE.
CourtAlabama Court of Appeals

Appeal from Geneva County Court; John A. Campbell, Judge.

Cliff Ludlum was convicted of larceny, and he appeals. Reversed and remanded.

The bill of exceptions recites that Cliff Ludlum sent or carried two pairs of pants to the pressing shop of one E.L. Curenton and came back on Saturday afternoon for them. The evidence is in conflict as to whether Curenton told him that they were ready, and were hanging on the clothes rack in the back part of the room, and whether Curenton told Ludlum to go back and get them. The other facts sufficiently appear from the opinion.

The following charges were refused the defendant:

"(A) Larceny is the felonious taking and carrying away the personal property of another with the intent to convert it to the use of the taker, or to deprive the owner thereof and unless you believe from all the evidence that this was the intention of the defendant at the time that he took the trousers from the shop of Curenton, you cannot convict."
"(C) The intent to steal is the material ingredient of larceny, and I charge you that if defendant took the trousers from the shop of Curenton under the belief that they were his own, and after taking them, determined to keep them, for his own use, and deprive the owner of them, he was not guilty of larceny, and you cannot convict him of the offense charged in the indictment."

Wm. L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

PELHAM P.J.

The several objections that were made and exceptions reserved according to the recitals of the bill of exceptions, "to the foregoing testimony of the witness Riles," are not shown to have been made to the questions at the time they were propounded, or before the questions were answered. The exceptions are not shown to have been made to any particular ruling, or rulings of the court in admitting evidence, and are entirely too general to be considered.

There is no merit in the defendant's motion, made at the conclusion of the introduction of the state's testimony, "to quash the indictment and dismiss the prosecution" because of a variance.

Refused charges 4 and 6, requested by the defendant, are covered by given charge 1.

Without passing upon the charge as good, it is enough to say of charge No. 7 that it is more than covered by given charges Nos. 2 and 3.

The general charge requested in defendant's behalf was properly refused. If there is any conflict in the evidence, or its tendencies, as to the intent of the taking, the accused is not entitled to the general charge. Cox v. State, 99 Ala. 162, 13 So. 556.

On the facts in this case the defendant was entitled to have written charge (A), requested by him, given to the jury as a statement of part of the law applicable to the case. The undisputed evidence showed that the defendant took to the place of business of one E.L. Curenton, who conducted a pressing shop, two pairs of pants, and that when he called for them a few days afterward Curenton was busy, and informed him the pants were ready and on the rack in the back of the room; that the defendant went to this rack, on which were hanging quite a large number of pants belonging to the customers of Curenton, and took two pairs of pants and came back to where Curenton was in the shop, and informed him he had his pants, and that his brother would pay the charges, to which Curenton replied that that was all right. The defendant, almost immediately after this, went to Florida, where he had secured a place to work, and soon after his return was arrested on an affidavit and warrant sworn out by Curenton, charging him with larceny in having stolen one of the pairs of pants. In the meantime--that is, after the defendant had taken the pants from the shop of Curenton and before his return from Florida--it had been ascertained that one...

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9 cases
  • The State v. Bunton
    • United States
    • Missouri Supreme Court
    • May 28, 1926
    ... ... note, the constructive possession thereof remaining in the ... real owner; hence, the act of the defendant in selling the ... note involved a trespass upon the constructive possession of ... the real owner. Chanock v. United States, 267 F ... 612; Boswell v. State, 1 Ala.App. 178; Ludlum v ... State, 69 So. 255; Commonwealth v. Doherty, 127 ... Mass. 20. "Possession and custody are in the law of ... larceny widely distinguishable. There can be no trespass ... against the custody, it is always against the possession, and ... it can be committed as well by the custodian as any ... ...
  • State v. McCarty
    • United States
    • North Dakota Supreme Court
    • April 21, 1921
    ... ... one of similar import. Peterson v. People, 65 Colo ... 106, 173 P. 876; State v. Crossen, 77 Wash. 438, 137 ... P. 1030; State v. Riggs, 8 Idaho 630, 70 P. 947; ... People v. Morino, 85 Cal. 515, 24 P. 892; Ward ... v. State, 70 Ark. 204, 66 S.W. 926; Ludlum v ... State, 13 Ala.App. 278, 69 So. 255; Yarbrough v ... State, 115 Ala. 92, 22 So. 534; Varas v. State, ... 41 Tex. 527; 25 Cyc. 149 (IV.) ...          6. The ... appellant claims that the trial court erred to the prejudice ... of the defendant in refusing to give the following ... ...
  • State v. Hickenbottom
    • United States
    • Wyoming Supreme Court
    • February 25, 1947
    ...italicized language for emphasis given as set forth in the quoted language above is that of the appellate court. See also Ludlum v. State, 13 Ala.App. 278, 69 So. 255; 36 C. J. 931 § The foregoing authorities would seem to clearly establish that the defendant's requested instruction lettere......
  • Meadows v. State
    • United States
    • Alabama Court of Appeals
    • January 15, 1952
    ...convert it to his own use, or to deprive the owner thereof. The offense involves a trespass on the possession of another. Ludlum v. State, 13 Ala.App. 278, 69 So. 255; McKinney v. State, 12 Ala.App. 155, 68 So. 518; Kramer v. State, 16 Ala.App. 456, 78 So. 719; Weldon v. State, 17 Ala.App. ......
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