Opinion
No. 28314.
December 9, 1929.
1. LARCENY. Indictment charging theft of "hog" is not sustained by proof of theft of meat from said hog.
An indictment charging the theft of hogs imports live animals, and not the flesh or meat of the hogs after being killed, dressed, and butchered, and an indictment charging theft of a "hog" is not sustained by proof of the theft of the meat, although from the original hog.
2. LARCENY. One stealing hogs in another state, and after butchering them there bringing meat into this state, may be indicted here for larceny of meat ( Hemingway's Code 1927, section 1224).
Where a person steals hogs in one state, and butchers them there and brings the meat into this state, the property of the meat remains the property of the owner of the hogs, and a person may be indicted in this state under section 1224 of Hemingway's 1927 Code (section 1408, Code of 1906), providing that, where property is stolen in another state and brought into this state, the offender may be indicted and tried in any county into or through which the property may have passed, or where the same may have been found.
APPEAL from circuit court of Greene county. HON. J.D. FATHEREE, Judge.
E.W. Breland, of Leakesville, for appellant.
This is not such case as is covered by section 1408, Code 1906; Sec. 1163, Hemingway's Code 1917.
The property had lost its identity, and was not hogs but meat. Defendant was indicted for the feloneous taking and stealing of two hogs, not butchered parts of some hog.
Hogs stolen in Alabama must be brought while yet hogs into this state before an indictment for stealing hogs can be maintained and applied to the theft in this state.
Instruction No. two given for the state is unquestionably erroneous and should not have been given. This instruction tells the jury that if they believe that the defendant brought meat into Mississippi, that had been stolen in Alabama, then they should find defendant guilty, etc. Defendant was not charged with stealing meat; is charged with hog stealing.
J.C. Satterfield, of Jackson, for appellant.
An indictment which charges the theft of a domestic animal is construed to describe a live animal of the kind stated, and is not supported by proof of the theft of a dead animal of that kind.
Smith v. State, 11 Ga. App. 385, 75 S.E. 447; State v. Hedrick, 272 Mo. 502, 199 S.W. 192; Noble v. State, 81 Tex. Cr. 28, 192 S.W. 1073; Rex v. Halloway, 1 C. P. 128, 12 E.C.L. 85; Rex v. Edwards, R. R. 370; 36 C.J. 856; 17 R.C.L., p. 46.
In order for the court of Greene county to have jurisdiction of a prosecution for larceny for the stealing of the hogs, it must be shown that the hogs were actually stolen in that county, or that there was a new larceny of the hogs committed there. It was proved without contradiction that the larceny was committed in Alabama, and that the hogs were never transported across the borders of that state. W.A. Shipman, Assistant Attorney-General, for the state.
Every moment's continuance of the original trespass amounts to a new caption and asportation, and hence if the goods be stolen in another state and brought here, the defendant can be convicted under an indictment averring the larceny to have been committed in the county in which the indictment was found and evidence of the acts and declaration of the accused in the other state is admissible to show the character of his possession in this state.
Watson v. State, 36 Miss. 593.
When an indictment charges the theft of a domestic animal, naming it, the name will be construed to describe a live animal, unless the contrary is alleged.
36 C.J., sec. 296, p. 284, Note 46.
Argued orally by J.C. Satterfield, for appellant.
The appellant was indicted in the circuit court of Greene county, Mississippi, on a charge of grand larceny; the indictment charging that Henry Rainwater, in the said county, on the ____ day of ____, in the month of ____, 1929, did unlawfully and feloniously take, steal, and carry away two hogs, one being of the value of twenty dollars and one hog of the value of ten dollars, both of said hogs being of the aggregate value of thirty dollars, of the personal property of W.M. Turner, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Mississippi.
He was placed on trial, and the proof showed without dispute that he killed the hogs in Alabama, butchered them there, and gave the heads to a person living in Alabama, and brought the meat of the hogs into Greene county, Mississippi. The proof also showed that one of the hogs belonged to W.M. Turner, and another belonged to the son of W.M. Turner. At the close of the testimony for the state the defendant moved the court for peremptory instruction of not guilty, which the court refused.
In 36 C.J., p. 856, section 388 (4), it is said: "An indictment which charges the theft of a domestic animal is construed to describe a live animal of the kind stated, and is not supported by proof of the theft of a dead animal of that kind. Smith v. State, 11 Ga. App. 385, 75 S.E. 447; State v. Hedrick, 272 Mo. 502, 199 S.W. 192, L.R.A. 1918C, 574; Noble v. State, 81 Tex.Crim. 28, 192 S.W. 1073; Rex v. Halloway, 1 C. P. 128, 12 E.C.L. 85; Rex v. Edwards, R. R. 370. Conversely, if the indictment describes the animal as dead, proof that it was taken alive is a fatal variance; as is also the case where the indictment charges the theft of an animal in a certain county and the proof shows that the stolen animal was killed in another state or county of the state, and that it was dead when brought into the county where the venue is laid."
In State v. Hedrick, 272 Mo. 502, 199 S.W. 192, L.R.A. 1918C, 574, it is stated that a defendant charged with stealing hogs cannot be convicted of stealing the carcass of a hog. A carcass of a hog, by whatever name it is called, is not a hog. The word "hog" means a live animal. The defendant was charged with stealing four hogs, and was indicted in that county. The evidence showed that the hogs were stolen in Dent county, and thereafter their carcasses were taken by the defendant and two other persons into Reynolds, where they were cleaned and divided among them. It was held that there was a total failure of proof, and the defendant could not, under the indictment, be convicted of stealing the carcasses of hogs in Reynolds county. Among the authorities cited in this decision is Golden v. State, 63 Miss. 466. This case, while not deciding the proposition now before us, was a charge for stealing a cow, and, under the statute in this state at that time, the stealing of a live animal of the kind named, a cow, was a felony, regardless of the value of the property stolen. The evidence for the defendant showed that he did not steal the cow while alive, but found the body of the cow near his house, and that he took the skin off of the dead animal and sold it. The court reversed the case, because the defendant asked and the court refused the sole charge, "that if they believe from the evidence that the cow alleged to have been stolen was found by the defendant dead, and that he did not kill her, then they should find the defendant not guilty." The court refused the instruction as asked, but changed it by striking out the word "kill," and inserting in lieu thereof the word "steal." So that, as given, the instruction read, "If they believe from the evidence that the cow alleged to have been stolen was found by the defendant dead, and that he did not steal her, then they should find the defendant not guilty." For this error in modifying the instruction the court reversed the case, apparently holding that the word "cow" imported a live animal.
We think this is the construction to be placed upon the use of the word "hogs" in the indictment before us — that it imported the stealing of live hogs. The offense of stealing hogs, occurring as it did, was a theft in the state of Alabama. If the property killed was not the property of the defendant, the title to the meat did not vest in the defendant, but remained the property of the owner of the hogs; and if that be true the defendant was not guilty of stealing hogs, but was guilty of stealing meat, under the provisions of section 1408, Code of 1906 (section 1224, Hemingway's Code of 1927), which provides: "Where property is stolen in another state or country and brought into this state, or is stolen in one county in this state and carried into another, the offender may be indicted and tried in any county into or through which the property may have passed, or where the same may be found." It follows that the request for a peremptory instruction should have been granted, but the court should have held the defendant to await the action of the grand jury on a proper indictment charging the theft of the meat.
The judgment will therefore be reversed, and judgment entered here discharging the defendant from the offense of which he is convicted, but holding him to await the action of the next grand jury upon the charge of theft of meat.
Reversed and dismissed.