Opinion
No. 30450.
March 13, 1933.
1. LARCENY.
Indictment for larceny of "steer" imports a live animal, and accused could not be convicted thereunder if steer was dead when stolen.
2. LARCENY.
In prosecution for larceny of steer, instructions to convict if accused stole steer, regardless of who killed it, held erroneous.
APPEAL from circuit court of Lamar county. HON. J.Q. LANGSTON, J.
Jesse Hatten, of Sumrall, and D.T. Currie (of Currie Currie), of Hattiesburg, for appellant.
At the close of the testimony the appellant moved the court to exclude the testimony offered by the state and to discharge him on the grounds that there was a variance between the allegations of the indictment and this motion was overruled by the court. The appellant then requested a peremptory instruction and this instruction was refused by the court. The court erred in overruling this motion and in refusing this instruction, because the indictment in the case charged him with the larceny of a live yearling and the proof in the case showed that the yearling was dead when the appellant appropriated the hide and carcass of the same.
The word "yearling" as used in this indictment imported a live yearling.
Rainwater v. State, 124 So. 801; Golden v. State, 63 Miss. 466.
Under these authorities if the yearling was dead when the appellant appropriated its hide and carcass, and if the appellant did not kill the yearling, he was clearly entitled to the peremptory instruction.
The court committed error in granting the state the instruction in which the court erroneously charged the jury that the jury should find the defendant Albert Davis, guilty as charged in the indictment regardless of what the jury may believe as to who shot and killed said yearling.
That instruction completely withdrew from the jury the right to determine whether the yearling was dead when the appellant skinned it and appropriated its hide and carcass. It went beyond that. It charged the jury as a matter of law that it was immaterial whether the appellant killed the yearling or not.
The court committed the same error in the instruction granted the state in which the jury was charged that the jury should find the defendant guilty of petit larceny, and this is true regardless of what the jury may believe as to who shot and killed said yearling.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Under the facts it appears to me that it would be immaterial, from the jury's standpoint, whether appellant or Nobles actually shot and killed the steer.
When there is one continuing transaction, though there may be several distinct asportations in law, yet the party may be indicted for the final carrying away, and all who concur are guilty, though they were not privy to the first or intermediate act.
State v. Trexler, 4 N.C. (2 Car. Law Rep.), 90, 6 Am. Dec. 558; Reg. v. Firth, L.R., 1 C.C. (Eng.) 172, 38 L.J. Mag. Cas. (N.S.) 54, 19 L.T. (N.S.) 746, 17 Week Rep. 237, 11 Cox, C.C. 234.
One who joins with a thief and assists in the asportation and disposition of stolen property, knowing at the time he does so that the other acting with him is in the act of carrying away the property of another, is equally guilty of the larceny.
2 Wharton's Criminal Law (12 Ed.), p. 1486.
The foregoing does not, in so many words, fit identically with the facts of the case at bar, but the underlying principle ought to apply in this case by analogy.
Murray v. State, 36 So. 541.
While there was no concert of action, as between appellant and Eddie Nobles in killing and carrying away this steer, nevertheless, the fact that appellant dressed and carried away the steer, after it had fallen dead, at a time when he knew the circumstances surrounding the death of the steer, ought to charge him with being a party to the whole transaction and, as such, be guilty of appropriating to his own use a live yearling.
Appellant was indicted and convicted in the circuit court of Lamar county of the larceny of (quoting from the indictment) "one red steer yearling with white forehead," the personal property of Henry Thornhill. He was convicted of petit larceny and sentenced to six months' imprisonment in the county jail. From that judgment he prosecutes this appeal.
Henry Thornhill owned something like two hundred head of cattle. Some of them were running on the open range. A fourteen month old steer was missing. In a search for it its head was found, two forefeet, and a piece of its hide about the size of a pocket handkerchief. An attempt had been made to burn these parts of the steer. The face was lying against the ground and was not burned. There were wagon tracks at the scene which led off through the woods to appellant's home. A search warrant was procured and appellant's premises searched. Fresh beef was found salted down in his smokehouse. He was thereupon arrested. When arrested he admitted that he had dressed the steer. He stated to the officers making the search that he and his son were in the woods hunting for hawks; that they heard two shots fired, whereupon four or five head of cattle came running toward them; that this steer had been shot and it fell about seventy-five yards from them; that seeing that the steer was about to die he proceeded to cut its throat and dress the animal; and that he sent his son home for the wagon and team in which to haul the dressed beef home.
On the trial appellant and his young son testified that one Ed Nobles shot the steer and disappeared from the scene; that when they reached the steer it was dead, and thereupon appellant dressed it, and he and his son hauled the dressed beef home. Ed Nobles testified for the state. He stated that he did not kill the steer — had nothing to do with the killing.
If the testimony of appellant and his son be true, appellant was convicted of the theft of a dead steer under an indictment charging him with the larceny of a live one. Appellant contends that under the law such a conviction cannot stand, and to sustain that contention relies on Golden v. State, 63 Miss. 466, and Rainwater v. State, 155 Miss. 684, 124 So. 801. It was held in those cases that an indictment for the theft of a domestic animal is construed to mean that such animal was alive when stolen, and that under such indictment, where the proof shows that the animal was dead when stolen, there can be no conviction.
We are unable to distinguish the present case on principle from those decisions. This question was properly raised by appellant by instructions granted the state and refused appellant. Instructions were given the state which charged the jury in effect that if they believed from the evidence beyond a reasonable doubt that appellant willfully, unlawfully, and feloniously took, stole, and carried away the steer, then the jury should find appellant guilty "regardless of what the jury may believe as to who shot and killed said yearling." The court refused instructions requested by appellant to the effect that if the animal was dead when appellant took it, they should acquit him. We are of opinion that the giving of those instructions for the state, and refusing those requested by appellant embodying the converse of those given the state, was error.
Reversed and remanded.