State v. Bailey.
| Decision Date | 25 February 1908 |
| Citation | 63 W.Va. 668 |
| Court | West Virginia Supreme Court |
| Parties | State v. Bailey. |
It is not necessary to the sufficiency of an indictment, charging larceny, to describe the stolen articles by reference to any mark of identification by which they can be distinguished from others of the same, or a similar, kind. (p. 672.)
If a person take property of another under an honest belief of right in himself to do so, he is not guilty of larceny thereof, even though he took it with knowledge of the adverse claim of such other person, and his own claim ultimately prove to be untenable, (p. 672.)
Whether a claim of right under which property has been so taken was bona fide or only pretended is generally a question of fact for the jury. (p. 672.)
Facts and circumstances indicating lack of confidence in the claim of right under which property has been taken and carried away, and determination to defeat the adverse claim by putting the property beyond the reach of legal process, such as concealment, disposition or destruction thereof, tend to prove lack of good faith on the part of the taker, (p. 672.)
There can be no crime without a perpetrator, nor an accessory without a principal, (p. 673,)
Agent '. ''Principal.''
If a person with felonious intent, through the instrumentality of an innocent agent, cause a crime to be committed, he, and not the agent, is the principal, and is punishable accordingly, although he was not present at the time and place of the offense either actually or constructively, within the meaning of the law of aider and abettor, operative between principal and accessory before the fact. As between him and the innocent agent, there is no such relation. He alone is the guilty party, (p. 673.)
Under such circumstances, an exception to the rules applicable to principalis and accessories, in the trial of criminal cases, arises ex necessitate legis. (p. 673.)
If the actor, the person who performs the manual act incident to the crime, had felonious intent in the performance thereof, or knew the act was criminal, he is a principal in the first degree; and the person at whose instigation he acted is either a co-principal in the first degree or a principal in the second degree, if he was actually or constructively present, but, if not present in either sense, he is an accessory before the fact. (pp. 673, 674.)
On the trial of one charged with having committed a crime through the instrumentality of an innocent agent, the guilt or innocence of the latter is a question for the jury, if there is evidence tending to prove criminal intent on his part. (p. 675.)
In such case, instructions to the jury, which, by reason of generality and indefiniteness, warrant the finding of guilt in" both parties are misleading and improper, (p. 676.)
Error to Circuit Court, Mingo County. Halsey Bailey was convicted of larceny, and he brings error.
Reversed. Remanded.
Strother, Taylor & Flanagan and Marcum & Marcum, for plaintiff in error.
Clarke W. May, Attorney General, for the State.
PoFFENBARGER, PRESIDENT:
On his writ of error to a judgment of the circuit court of Mingo county, imposing upon him a sentence of two years imprisonment, for the larceny of four barrels of whiskey, Halsey Bailey assigns, as error, among other things, the overruling of his demurrer to the indictment, founded upon the lack of averment therein of any mark or number on the barrels by which they could be distinguished from others of the same or similar kind. The objection is not tenable. Under State v. Huff, 31 W. Va. 355, the indictment is good. It charges the larceny of The case cited held it sufficient to charge the larceny of "one keg of wine of the value of $15.00 of the goods and chattels of J. W. Hale." See also Bishop's New Grim. Pro., Vol. 11, section 700.
The prisoner was jointly indicated with three other persons, G. G. Mabe, Joe Staley and Everett Atkinson, but, on his election, was tried separately. Practically all of the other assignments of error, relating to the admission and rejection of evidence, instructions to the jury, given and refused, and the motion to set aside the verdict, depend upon the legal principle applicable to the facts proven and to the establishment of which the evidence tends. In other words, if, from the facts, the jury could properly have inferred that the prisoner was a principal in the first or second degree, some of the rulings complained of are correct, and others wrong; but, if, as matter of law, he was only an accessory before the fact, the rulings are all wrong and the evidence does not sustain the verdict.
The following material facts might be found from the evidence: Sig and Sol II. Freiberg had thirty barrels of whiskey in the bonded warehouse of the Tug River Distilling Company at Williamson, Mingo county, on which they had paid the internal revenue tax at the rate of $1.10 per gallon, and four of which were hauled away by one James Blackburn, an employee of the Mingo Light and Ice Company, by direction of White Atkinson, one of the proprietors of that concern, pursuant to a request of the prisoner that he take them into his possession and care. At that time, the distilling company was in the hands of a receiver, and there was a controversy, between the receiver and the Freibergs, concerning' the title of the property or the right of the latter to remove it. The prisoner wras the president of the distilling company and, as such, wTas interested in the controversy. Blackburn left one of the barrels at a saloon owned by one Frank Meeks and took the others to a pop factory adjoining the Mingo Light & Ice Company plant, both of which concerns were owned and controlled by said Atkinson and his two brothers, Everett and George, and the team with which he hauled the whiskey away belonged to the Mingo Light & Ice Company. Meeks bought the barrel of liquor, left at his place, from Everett Atkinson at the price of $45.00, but, on discovering that it was claimed by the Freibergs, he refrained from opening or using it. Part of the other three barrels was consumed while in the pop factory by the employees of the Mingo Light & Ice Company and others, and the balance was shipped to Bluefied. The prisoner was not present at the time it wras taken away, but was either at Huntington, about 100 miles distant, or on the road to that place. However, he does not deny having directed Atkinson to take it and he virtually admitted his knowledge of its whereabouts when the officers were searching for it. This admission, however, was coupled with the statement that he thought it belonged to him, and, if he found that it did not, he would return it. While at Huntington or on his way to that place, he did nothing concerning the property taken, nor did he, at any time, have any of it in his actual possession or aid in the removal of it from the distillery. The purpose of his visit to Huntington was the settlement of a claim he had against somebody at that place, and which had no connection whatever with the stolen property. He did not sustain toward Atkinson or Blackburn, the relation of employer or master in any sense nor were the Atkinsons interested in the distilling company. Having learned that Staley, the storekeeper and ganger, at the distillery, intended to stamp and set out the whiskey, he told Atkinson to go down and get it and look after it.
The circumstances shown tended to prove that the claim of title or right to possession on the part of those who took away the whiskey was not bona fide. The concealment of its whereabouts after it had been removed evinced guilty intent. It signified a determination to defeat the claim of the Freibergs, rot by the establishment of superior title, but by putting out of reach of the process of the courts, the subject matter of the controversy. Such conduct was in the nature of an admission of knowledge that the claim was groundless and untenable. If a person in good faith take the property of another believing it to be his own, he is not guilty of larceny, even though his claim turn out ultimately to have been unfounded, because of lack of intent on his part to deprive another of his property. This is so notwithstanding knowledge of the adverse claim at the time. State v. Flanagan, 48 W. Va. 115, 120; 18 Am. & Eng. Ency. Law 523, 524. In State v. Flanagan, a wife, claiming title to certain fruit deposited in her husband's cellar, instigated a third party to get possession of it and ship it to her without the knowledge of her husband. He did so, under the belief that it belonged to the wife, and, on prosecution for the larceny thereof, this Court held the evidence would not sustain a verdict of guilty. But the claim of title must be asserted in good faith. It must be more than a mere colorable pretense to obtain possession, and whether it was set up in good faith is usually a question for the jury. State v. Caddie, 35 W. Va 73, 78; Baras v. State, 41 Tex.. 527; Thompson v\ State, 43 Tex. 268; 18 Am. & Eng. Ency. Law 524.
Since the jury could have found a larceny of the whiskey, and also, that some of the parties above named were guilty, they were bound to determine which of them was the principal; for there can be no crime without a perpetrator nor an accessory without a principal. If Atkinson and Blackburn, the parties who actually took the whiskey, had no criminal intention in doing so, and took it by direction, or at the instance, of another party, such...
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