Wilder v. State, 6 Div. 712.
| Decision Date | 04 March 1941 |
| Docket Number | 6 Div. 712. |
| Citation | 30 Ala.App. 107,1 So.2d 317 |
| Parties | WILDER v. STATE |
| Court | Alabama Court of Appeals |
Rehearing Denied March 25, 1941.
Appeal from Circuit Court, Jefferson County; J.Q. Smith Judge.
These charges were refused to defendant:
G.J Prosch, of Birmingham, for appellant.
Thos. S. Lawson, Atty. Gen., and Wm. N McQueen, Asst. Atty. Gen., for the State.
The appellant prosecutes this appeal from a judgment of conviction of grand larceny upon an indictment charging him with the offense of larceny from the person. The property stolen was a purse and contents belonging to the prosecutrix. The aggregate value thereof was less than $25 and approximately as alleged in the indictment.
If the property was not stolen from the person of the prosecutrix, Mrs. Livingston, the conviction for grand larceny, under the specific allegations of the indictment, was unwarranted. Code 1923, Section 4905.
Mrs. Livingston was a spectator in the Galax Theatre in Birmingham. She was seated, holding her baby in her lap, and in the seat next adjoining hers, which was empty, she had reposited the baby's coat and upon it her purse. The thief, whom she identified as appellant, after making certain unusual movements, took a seat immediately behind her and "grabbed" her purse from the seat, where she had thus placed it, and hurried out of the building.
Appellant urges that upon this evidence he was not, as a matter of law, guilty of larceny from the person and that error intervened upon trial in the refusal of the court to so charge the jury as appropriately requested by appellant in his special written charges.
We are in accord with this insistence, and that this conclusion is supported by the overwhelming weight of authority cannot be consistently contradicted.
Unless the property stolen was actually on or attached to the person by his clothing or otherwise, or was in some manner in his actual physical possession, the offense of larceny from the person has not been committed. Corpus Juris (Vol. 36, p. 866, Sec. 422), in thus stating the law, pronounces it as laid down in the case of People v. McElroy, 116 Cal. 583, 48 P. 718, 719, where, after a review of the leading authorities, the question was thus disposed of by this statement: "In view of these authorities, and the origin of the statute, we think its obvious purpose was to protect persons and property against the approach of the pickpocket, the purse snatcher, the jewel abstracter, and other thieves of like character who obtain property by similar means, and that it was in contemplation that the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession,--such as clothing, apparel, or ornaments, or property or things contained therein or attached thereto, or property held or carried in the hands, or by other means, upon the person; that it was not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands." (Italics supplied.)
The same law is adhered to in People v. De Vaughn, 63 Cal.App. 513, 218 P. 1020; Rapalje, Law of Larceny, Sec. 16, pp. 18, 19; State v. Patterson, 98 Mo. 283, 11 S.W. 728, 730; Gibson v. State, Tex.Cr.App., 100 S.W. 776; 36 C.J., pp. 754, 755, Sec. 66; and many other cases not necessary to catalogue.
Alabama, also, in the only case which our research has discovered, has held similarly. Stone v. State, 115 Ala. 121, 22 So. 275.
In our opinion a reversal should be ordered for the...
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