Witt v. State

• Decision Date: 31 January 1846
• Parties: WITT v. THE STATE.
• Court: Missouri Supreme Court

9 Mo. 671

WITT

v.THE STATE.

Supreme Court of Missouri.

January Term, 1846.

APPEAL FROM POLK CIRCUIT COURT.

SCOTT, J.

Witt was indicted, convicted and sentenced to imprisonment in the penitentiary for stealing a gelding, the property of S. Smith. After the close of the evidence tending to show that the horse was taken by the prisoner, sundry instructions were asked and refused on behalf of the defense. The court then gave the following instruction which was excepted to by the prisoner: “If the jury believe from the evidence that the horse belonged to Smith, and that the prisoner took and carried away the horse. without the knowledge or consent of Smith, with the intention of selling him, or of converting him to his own use, they ought to find him guilty. And although the jury may believe, from the evidence, that Smith, in the contract spoken of, had agreed that the prisoner might ride the horse, yet if they believe the prisoner took the horse with the intention of selling him, or of converting him to his own use, they ought to find him guilty.”

The legality of the conviction must depend on the propriety of the foregoing instruction 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. East's Pl. Cr. 553. The taking must be done animo furandi, or as the civilians express it, lucri causa. Every felony includes trespass, and every indictment for larcery must have the words felonce cepit, as well as asportavit. The felonious intent is the material ingredient in the offense. 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. 3 Chitty, 675. There must be a felonious intent, and where goods are taken possession of on a claim of right, although that right may be unfounded, it is not a felony. Hawk. What acts constitute this felonious intent, is a matter of great difficulty. Sir William Blackstone says, the ordinary discovery of a felonious intent, is when the party doth it clandestinely, or being charged with the fact denies it. But this is by no means the only criterion of criminality; for in cases that may amount to larceny, the variety of circumstances is so great, and the complication thereof so mingled, that it is impossible to recount all those...