Leland v. State

82 Miss. 132

Opinion

Calhoon, L,

delivered the opinion of the court.

We should, perhaps, not disturb the verdict of the jury if the issue merely was whether Leland took the horse from the stable. But the question, further, is whether he took it for temporary use, to ride, or to deprive the owner permanently of his property. The evidence very strongly supports the probability of the taking being merely for transportation from Baleigh to Taylorsville. In this view, the first instruction given for the state was misleading and erroneous, and not cured by any instruction for the defense, if, indeed, it could be cured. Beatty v. State, 61 Miss., 18; Hamilton v. State, 35 Miss., 214-219; Warden v. State, 60 Miss., 639; Hells v. State, 64 Miss., 77; 1 South, 9; 60 Am. Rep., 46; People v. Miller, 88 Am. St. Rep., 601, note; A. & E. Enc. Law, vol. 1, p. 761 (1st ed.).

Reversed and remanded.