Mead v. State
| Decision Date | 04 January 1889 |
| Citation | 25 Neb. 444,41 N.W. 277 |
| Parties | MEAD v. STATE. |
| Court | Nebraska Supreme Court |
1. Simple larceny is the felonious taking and carrying away of the personal goods of another, with intent to deprive the owner permanently of his property. The taking must be with a felonious intent; otherwise, there is no larceny. If A. should take the property of B., believing that it was with B.'s consent, and that the property belonged to A., there could be no larceny, because no criminal intent.1
2. Evidence examined, and held not sufficient to sustain a verdict of guilty of larceny.1
Error to district court, Adams county; GASLIN, Judge.A. H. Bowen, for plaintiff in error.
The Attorney General, for the State.
At the June term, 1887, of the district court of Adams county, the county attorney of said county filed an information, charging plaintiff in error with stealing a mule, on the 18th day of the same month, from A. C. Lindquist. Upon arraignment plaintiff in error pleaded not guilty; and on the 24th day of June a trial was had, which resulted in a verdict of guilty, and on the same day he was sentenced to confinement in the penitentiary for the term of four years. He brings the cause to this court by proceedings in error, alleging that the verdict of the jury was not sustained by sufficient evidence; that it was contrary to law; and that the court erred in overruling a motion for a new trial.
The principal contention of plaintiff in error is that the verdict of the jury was not sustained by sufficient evidence. The testimony introduced on the part of the state shows that Lindquist was the owner of the mule in question on the day of the alleged larceny, when he was approached by plaintiff in error, suggesting a trade. He declined to trade the mule for other property; saying that there was a chattel mortgage on it, and he wanted to sell it. Plaintiff in error then proposed buying it, if Lindquist would wait a short time; saying that one Lee had a note for a horse, which he had, and would buy him, but that he and Lee were not friendly, and Lee would not buy directly from him. Soon after that Lee came to the barn, and offered plaintiff in error $90 for the horse, but no sale was made, and Lee went away. Plaintiff in error then asked Lindquist to take the horse, and go to where Lee was, and get the $90, which Lindquist refused to do; saying that he was a stranger, He finally went and saw Lee, when Lee told him to return to the stable, and he would be there in a few minutes, and pay the price demanded. Lindquist then returned to the stable, and informed plaintiff in error what had transpired. Plaintiff in error began to remove the saddle from the mule, when Lindquist informed him that the saddle must not be removed until he got his money. Plaintiff in error then left the barn, when Lee soon after came in, saying he would have the money in a few minutes, and for Lindquist to take the horse out of the barn, and hitch him to a post by the bank, which Lindquist did. It is shown that the mule was soon afterwards removed from its place in the barn, and tied beside plaintiff's remaining horse. The buggy or carriage in which plaintiff in error had driven to Juniatta that morning had been removed to the rear of the barn by the owner of the barn. Plaintiff in error afterwards returned, hitched his horse and the mule to his buggy, and departed. He was soon afterwards followed, and arrested for the larceny. Upon the trial he testified, in his own behalf, that he did not know of the removal of the horse, nor of the substitution of the mule in its place in the barn, until he returned, and, finding them so situated, he supposed the exchange had been made by Lindquist, and, without stopping to inquire further, he hitched up and left. There is considerable in the evidence which savors very strongly of dishonesty on the part of plaintiff in error, but as to whether he intended to steal the mule is a question upon which we will express no opinion.
Upon the trial the court gave to the jury but one instruction, which was as follows: “If you find from the evidence in the case that the defendant took, stole, and carried away, or drove off, the mule of the person to whom it is alleged in the information the same belonged, in Adams county, Neb., on or about the time alleged, with the intent to permanently deprive the owner thereof of his property, you will render a verdict of guilty; bearing in mind, if you entertain a well-grounded, reasonable doubt as to the guilt of the defendant, you will find him not guilty.” No exception appears to have been taken to this instruction, and it cannot be considered, except in so far as it may aid in the investigation of the question in hand. It will be seen that no direction or information was given the jury as to what the crime of larceny consisted of, except that, if the property was taken with the intention of permanently depriving the owner of it, the verdict should be guilty. It is true the words “took, stole, and carried away” occur in the instruction, but there is nothing in the instruction which told the jury that the taking must be with felonious intent. Thompson v. People, 4 Neb. 524.
A number of questions naturally arise in a case of this kind upon which a trial jury should be instructed, viz.: As to what constitutes the crime of larceny; the difference between larceny and obtaining property by false pretense; the felonious intent of plaintiff in error, or the want of it, at the time the property was taken; that if the jury found that upon his return to the barn he found the mule standing with his remaining horse in the place of the one which had been removed by Lindquist, and actually believed that Lindquist had made the exchange in his absence, that fact could be considered for the purpose of arriving at his...
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