State v. Rhea

• Decision Date: 03 June 1912
• Citation: 147 S.W. 1096
• Parties: STATE v. RHEA et al.
• Court: Missouri Court of Appeals

147 S.W. 1096

STATE v. RHEA et al.

Springfield Court of Appeals. Missouri.

June 3, 1912.

LARCENY (§ 17)—ASPORTATION.

Where several boys killed a number of turkeys by throwing stones at them, collected the dead birds into piles, but did not remove them or make any use of them, they were not guilty of larceny, since, to constitute larceny, the taking must be with the intent, not only to deprive the owner of the use of the property, but to convert it to the use of accused.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Clyde Rhea and others were convicted of petit larceny, and they appeal. Reversed.

GRAY, J.

July 25, 1911, the prosecuting attorney of Christian county filed an information, charging that Clyde Rhea, Phil Ellingsworth, and W. Lathrop, at said county, unlawfully, willfully, and feloniously did take, steal, and carry away 25 turkeys of the value of $50, the property of Thomas F. Coyne. The cause was dismissed as to the defendant Lathrop, and the other defendants entered pleas of not guilty, and were tried before a jury and convicted of petit larceny, and they appealed to this court.

No briefs have been filed; but we assume from the appellants' motion for new trial they complain of the action of the court in submitting the case of the jury, and in giving certain instructions. The testimony on the part of the state tended to prove that appellants and Lathrop, while walking through a field belonging to one of Coyne's neighbors, saw some old turkeys with their broods of young. The boys killed several of the turkeys by throwing stones at them, and, after killing them, they were collected into piles, but were not removed therefrom, and there was no claim that the boys made any use of the birds; but all the testimony tended to show that the boys maliciously killed the turkeys, and in criminal disregard of the rights of the owner. The defendants offered no testimony, and, at the close of the state's case, asked the court to instruct the jury to return a verdict of not guilty.

While there was some conflict in the state's testimony as to the ownership of the turkeys, there was sufficient evidence to support the ownership alleged in the information; and the question on this appeal is whether the state's evidence was sufficient to make a case of larceny.

In the early case of Witt v. State, 9 Mo. 671, Judge Scott defined larceny as follows: "Larceny is defined to be the wrongful taking and carrying away of the personal goods of any one from his possession with a felonious intent to convert them to the use of the offender, without the consent of the owner. The taking must be done animo furandi, or, as the civilians express it, lucri causa. * * * To constitute this offense, therefore, in any form, there must be a taking from the possession, a carrying away against the will of the owner, and a felonious intent to convert it to the offender's use."

There is an irreconcilable conflict in the authorities whether, to constitute larceny, a taking must be with a view to some benefit or gain to the wrongdoer, or, as it is sometimes said, whether the taking must be lucri causa. In 25 Cyc. 52, it is said: "According to the weight of authority, the felonious intent required for larceny is not necessarily an intent to gain advantage for defendant; an intention to deprive the owner of his property is enough. But in a few cases it is held necessary to show that defendant took for his own purpose or lucri causa."

In 18 Am. & Eng. Ency. of Law (2d Ed.) 504, the author does not agree with Cyc. as to the weight of authority, and says: "The question whether, in order to constitute larceny, there must be an intent on the part of the taker to appropriate the goods (that is, to derive some benefit or gain to himself), an...