Opinion
No. 36770.
June 14, 1948.
LARCENY.
Evidence which was insufficient to show that defendant intended to steal truck did not warrant grand larceny conviction.
APPEAL from the Circuit Court of Copiah County.
Mrs. E.R. Arrington, of Hazlehurst, for appellant.
The State has failed to prove ownership of the truck as alleged in the indictment beyond a reasonable doubt. In larceny prosecution, the State must prove ownership as alleged in the indictment beyond a reasonable doubt, and the court cannot, to supply such proof, draw inferences that do not necessarily arise from the evidence.
Johnson v. State, 186 Miss. 405, 191 So. 127.
Where taking is open in presence of owner or of other persons, this carries with it evidence that it is only trespass.
Lawson v. State, 161 Miss. 719, 138 So. 361; Littlejohn v. State, 59 Miss. 273.
The subsequent conduct and dealings with the property of one charged with larceny are admissible in evidence as tending to show whether the taking was bona fide or with intent to steal.
Beatty v. State, 61 Miss. 18.
The court erred in not granting peremptory instruction for the appellant for the reason that there was nothing in the record to show that the truck was wrongfully or fraudulently taken with the intent to convert it to taker's own use. If the original taking is lawful and bona fide, a subsequent fraudulent conversion is not larceny.
Calhoun v. State, 191 Miss. 82, 2 So.2d 802.
See also Hampton v. State, 196 Miss. 426, 18 So.2d 150.
The verdict of the jury is not supported by the credible evidence.
See Day et al. v. State (Miss.), 7 So. 326.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
I have examined the record of the evidence in the case and have very serious doubts as to whether the evidence is sufficient to sustain a conviction of grand larceny. It appears to me, however, that the proof would sustain trespass rather than larceny.
See Hampton v. State, 196 Miss. 426, 18 So.2d 150; McLemore v. Love, 197 Miss. 273, 19 So.2d 828; McLain v. State, 198 Miss. 831, 24 So.2d 15; Beatty v. State, 61 Miss. 18; Butler v. State, 151 Miss. 576, 118 So. 412; Rory v. State, 176 Miss. 835, 170 So. 304; Calhoun v. State, 191 Miss. 82, 2 So.2d 802.
This appeal is from a conviction of grand larceny. The proof on behalf of the State discloses that the Chevrolet truck which is alleged to have been stolen was the property of John D. Burney; that his son Charles Burney had been using the truck in connection with some work in which he was then engaged; that the appellant J.P. Ephram was employed in this work by the said Charles Burney, and had driven this truck to the place of business of the B. and B. Implement Company at Crystal Springs where it was left during the day in charge of the said Implement Company, and with the ignition key left therein. That this was done with the knowledge and consent of the said Charles Burney; that thereupon the said Burney carried the appellant to the town of Terry, where he worked during that day in company with other employees; that when the day's work was done the said Burney carried the appellant back to Crystal Springs in a car, and let him out at a filling station across the street from the said Implement Company; and that thereafter the appellant went to where the Chevrolet truck had been left that morning, drove it a short distance to his home near Gallman, then took other passengers into the truck and drove it back through Crystal Springs and up the highway to the Green Parrot; and that he wrecked and almost demolished the same while en route back to Crystal Springs.
Although the appellant did not testify in his own behalf, it appears from the evidence that when he was questioned by the owner of the truck, John D. Burney, and by a deputy sheriff, he freely and voluntarily admitted that he had used the truck, but said, in the language of the witnesses, that "Charles let him have it". He had given his fellow passengers the same explanation as to why he was driving the truck that night.
It is not expressly denied that the appellant had stated to Charles Burney during the day that he wanted to go to his home near Gallman that evening to get some clothes, but Charles Burney testified that he did not give him permission to use the truck, but admitted that he did not tell him not to use it. At any rate, the proof in the case does not establish any higher offense than that of trespass less than larceny, there being nothing in the evidence to indicate that the appellant intended to steal the truck. He was returning with it when he had the wreck and he evidently intended all the while to carry it back to where he got it, and to leave it there. Most assuredly he would not have carried his neighbors along as passengers if he had not intended to return with the truck.
Therefore, the granting of instructions to the jury such as would permit a conviction of grand larceny was erroneous and the cause must be reversed and remanded for a new trial.
Reversed and remanded.