McKinney v. State

• Decision Date: 08 April 1915
• Docket Number: 112
• Citation: 12 Ala.App. 155,68 So. 518
• Parties: McKINNEY v. STATE.
• Court: Alabama Court of Appeals

68 So. 518

12 Ala.App. 155

McKINNEY v. STATE.

No. 112

Court of Appeals of Alabama

April 8, 1915

Appeal from Circuit Court, Wilcox County; B.M. Miller, Judge.

Tom McKinney was convicted of grand larceny, and he appeals.Affirmed.

N.D. Godbold, of Camden, for appellant.

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

THOMAS J.

The indictment was for grand larceny and charged the defendant with the theft of one steer, an animal of the cow kind.It contains two counts--both in code form (Code, § 7161, subd 64)--differing from each other only in the fact that the first count alleged the property stolen to be the personal property of Milton Brooks, while the second alleged that it was the property of some person other than the defendant, but whose name was to the grand Jury unknown.The defendant interposed a demurrer to the last count on the ground that the name of the owner of the property was not therein alleged.

The court committed no error in overruling either the demurrer or the motion in arrest of judgment based on the same ground, since the count alleged, as stated that the name of the owner was unknown to the grand jury, but that such owner was a person other than the defendant.Code, § 7143;Black v. State,83 Ala. 81, 3 So. 814, 3 Am.St.Rep. 691;12 Ency.Pl. & Pr. 960.

The evidence for the state tended to show that the steer alleged to have been stolen by the defendant was an estray whose owner was unknown, that had in some way gotten into the pasture of one Milton Brooks, and was in there running with his cattle when defendant, in company with his employer, one Robins, came over to Milton Brooks' for the purpose of purchasing some of the latter's cattle; that defendant heard Milton Brooks tell said Robins, defendant's said employer, when the three were in the pasture looking at and selecting the cattle purchased, that he, Brooks, could not sell the steer in question as it did not belong to him, but was a stray steer that had gotten into his pasture, and that he did not know to whom it belonged.A few days later, the defendant returned and told Brooks that one Watts was the owner of the stray steer, and had sent him, defendant, for it, and by him the money with which to pay for the pasturage.Brooks told the defendant that he charged nothing for the pasturing of the steer, and consented for defendant to take it to the person Watts, to whom defendant said it belonged, and who, defendant said, had sent him for it.Defendant thereupon took the steer and, after keeping it at his house a few days, sold it to a cattle dealer, and subsequently ran away.Watts testified that he did not own the steer and never sent the defendant for it, as claimed by him, to Brooks.There was other evidence tending to show that the owner of the steer was unknown, and that defendant did not own it.Under this state of the evidence and the pleadings, the court committed no error in refusing the general affirmative charge requested by defendant.

The steer was the subject of larceny, even though it had strayed from the premises of its owner (Burger v. State,83 Ala. 39, 3 So. 319;18 Am. & Eng.Ency.Law[2d Ed.] 521), and even though the name of its owner was unknown (Black v. State,83 Ala. 81, 3 So. 814, 3 Am.St.Rep. 691).

Larceny is the felonious taking and carrying away of the personal property of another with the intent on the part of the taker to convert it to his own use or to deprive the owner thereof.Higgs v. State,113 Ala. 36, 21 So. 353.

As to whether the defendant entertained such intent was a question for the jury.The openness of his conduct in taking, keeping and disposing of the property does not negative the existence of such an intent to the extent that the law requires that the affirmative charge be given in the defendant's favor.Talbert v. State,121 Ala. 33, 25 So. 690;Verberg v. State,137 Ala. 77, 34 So. 848, 97 Am.St.Rep. 17;Thompson v. State,149 Ala. 39, 43 So. 115;Fulton v. State,8 Ala.App. 257,...