Savage v. State

• Decision Date: 07 September 1916
• Docket Number: 6 Div. 14
• Citation: 15 Ala.App. 168,72 So. 694
• Parties: SAVAGE v. STATE
• Court: Alabama Court of Appeals

72 So. 694

15 Ala.App. 168

SAVAGE v. STATE

6 Div. 14

Court of Appeals of Alabama

September 7, 1916

Appeal from Circuit Court, Cullman County; Robert C. Brickell Judge.

Dr Savage was convicted of larceny, and he appeals. Affirmed.

Wm. E. James, of Cullman, for appellant.

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

EVANS J.

The main insistence of counsel is that appellant could not have been legally convicted of larceny under the evidence in this case, because it shows that appellant acquired the mule--the subject of the larceny--with the consent of its owner, one Herman Warnke, and hence there was no felonious taking.

The evidence in brief was to the effect that appellant spent the night and part of the next day at the house of Herman Warnke. During the afternoon appellant decided to go to town (Cullman), and went down to the field where Warnke was plowing, and obtained his consent to ride the mule in question to Cullman, with the understanding that appellant was to have the mule shod and bring back some bread. The appellant did not return, but instead rode the mule on into Lawrence county, and when arrested was found on a farm about 50 miles north of Cullman. The trial court submitted for the determination of the jury the question of the intention of appellant in acquiring the mule, instructing that, if at the time appellant borrowed the mule he intended to steal it, he would be guilty of larceny.

If the possession of a chattel be lawfully and in good faith acquired through the consent of the owner, there can be, of course, no conviction for larceny; as an essential ingredient of that offense is the felonious taking. The assumption however, that the taking was innocent, and not felonious would be begging the question and an invasion of the province of the jury where the evidence is susceptible of different inferences. If appellant acquired possession through a loan of the mule in furtherance of a fraud, scheme, or trick, intending to steal it, this would, under the authorities, constitute larceny, and, instead of having a temporary possessory right in the chattel as a gratuitous bailee, appellant's holding would be tortious, and he would be a trespasser ab initio. 1 Bishop, Crim. Law (8th Ed.)§ 261; 2 Bishop, Crim.Law, § 813; 25 Cyc. 400, and cases there cited; Frazier v. State, 85 Ala. 17, 4 So. 691, 7 Am.St.Rep. 21. A somewhat similar case to the one at bar is to be found in Thompson's Case, 149 Ala. 37, 43 So. 115. See, also, Boswell's Case, 1 Ala.App. 178, 56 So. 21; Clark's Manual Crim.Law, §§ 931, 932, 961; Crocheron's Case, 86 Ala. 64, 5 So. 649, 11 Am.St.Rep. 18; Holbrook's Case, 107 Ala. 154, 18 So. 109, 54 Am.St.Rep. 65. The question of intent in acquiring the mule was a...