Gooch v. State

28 S.W. 510, 60 Ark. 5, 1894 Ark. LEXIS 5

Opinion

Riddick, J.,

(after stating the facts). It is urged as grounds for reversal of the judgment of conviction, first, that the court erred in giving to the jury an instruction touching the law of insanity. It is contended that the defendant did not set up such defense, and that the instruction was abstract and prejudicial. "Where there is any evidence tending to show insanity or unsoundness of mind on the part of the defendant at the time the crime was committed, the court may, of. its own motion, give an instruction covering the law on that point. And if an instruction is given without any evidence upon which to base it, this court will not reverse when it is apparent that the defendant was not injured by such instruction. In this case we do not see that the defendant was in any way prejudiced by the instruction in question.

1. Special ownership in larceny su£&It is next contended that as McElroy had purchased the mare from one who had no right to sell, the indictment should have alleged the title of the property to be in the true owner, and that the proof did not sustain the allegation that the mare was the property of McElroy. We do not think this position tenable. The authorities cited by counsel for the State fully convince us to the contrary. Goods stolen from a thief who had stolen them from another may be charged in the indictment to be either the property of the thief or the true owner.

Footnotes

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* 2 Bishop’s New Crim. Law, sec. 789; 2 East’s Pleas of the Crown, 654; 1 Hale, Pleas of the Crown, 507; Ward v. People, 3 Hill (N. J.), 395; Ward v. People, 6 Hill, 144; Commonwealth v. Finn, 108 Mass. 466. As McElroy had procured the possession of the mare for a valuable consideration and in good faith, we entertain no doubt that it was sufficient to allege the title of the property in him, and that the proof was sufficient to sustain that allegation.

~. 1J'elonious intent necessary. The court was asked by defendant to instruct the jury as follows: "If you are satisfied from the evidence that the defendant, at the time of taking the mare described iii the indictment, took her with the intention of restoring her to the man from whom he had hired her, you should acquit him. If, from all the evidence in the cause, you have a reasonable doubt as to whether the defendant, at the time of the taking of the mare, had in his mind the intent to steal her, or the intent to take and restore her to her original owner, and thus endeavor to cure whatever wrong he had committed with respect to said mare, you should give the defendant the benefit of that doubt, and acquit him." The court refused this instruction, and, over the objection of the defendant, gave the following instruction on this point: "If the defendant hired the mare from Hollenbeck's agent, and fraudulently sold and delivered her to McElroy as his own, McElroy being honest in the purchase and receipt thereof, and thereafter, becoming aware that McElroy suspected him of having stolen the mare, defendant took the mare secretly from the possession of McElroy, without McElroy's consent, with intent to deprive McElroy permanently of said mare, and restore her to Hollenbeck, and thus prevent his being punished for the wrong done Hollenbeck in regard to the mare, this would be larceny of the mare from McElroy." Exceptions were duly saved to the giving of this instruction, and the question now before us is whether it correctly states the law.

To constitute larceny the taking must be done with a felonious intent. It has been held that a person who takes muskets to prevent their being used against himself and friends does not commit larceny, there being no lucri causa. “A better reason for this just decision,” says Mr. Bishop, “would have been that his motive was not to deprive the owner of his ownership in them.” United States v. Durkee, 1 McAl. 196; 2 Bishop’s New Crim: Law, sec. 847. If one in good faith takes property under a claim of title, however badly mistaken or unfounded the claim, he commits no larceny. And it is the same where the taking is on behalf of another believed to be the owner. 2 Bishop’s New Crim. Law, sec. 851; Rex v. Knight, 2 East, P. C. 510.

Hollenbeck was the real owner of the mare, and if the defendant took her, intending in good faith at the time to restore her to Hollenbeck, he committed no larceny, for there was not only no intention to deprive the owner of his property, but an intent to restore it to him.

When he obtained a horse from McElroy by trading him a mare that he falsely pretended to own, but which was owned by Hollenbeck, defendant committed the crime of obtaining property by false pretenses, for which he pleaded guilty, and is now being imprisoned.

If he afterwards stole the mare of Hollenbeck from McElroy, he should also be punished for larceny, but not if his only intention in taking the mare was to restore her to Hollenbeck. We conclude that the court erred in giving the above instruction, and also in refusing the one asked by defendant. The judgment is therefore reversed, and the cause remanded for a new trial. ■

Note_It is a well established principle of law that to constitute the crime of larceny the property must be feloniously taken from the possession of the owner. But, says Gould, J., in Wilkins'1 Case, 2 Leach, S89, “ it is a rule of law, equally well known and established, that the possession of the true owner cannot be divested by a tortious taking; and therefore, if a person unlawfully take my goods, and a second person take them again from him, I may, if the goods were feloniously taken, indict such second person for the theft, and allege in the indictment that the goods are my property, because these acts of theft do not change the possession of'the true owner.” (Rep.)