Maye v. State

3 Shan. Cas. 294

Opinion

Folkes, J.,

delivered tbe opinion of tlie court;

This case is reversed for error in the charge of the court, wherein it was said, after a correct statement of the law: “But if, after finding it, he afterwards ascertained that it was the property of the prosecutor, and still concealed it, and fraudulently kept it, intending to deprive the true owner of his property, he would then be guilty.” This is manifest error, under the well-established rule in this state, whatever may be the holding by the English and some of the American states. It may have misled the jury, as there was evidence in the case to which such charge might well have been applied by the jury; in consequence of which we reverse, notwithstanding the fact that on the first count the verdict might very well have rested under the proof in the cause. It is not necessary that the indictment .should charge a loss and finding under sec. 5451 of the Code A conviction can be had on an ordinary indictment for larceny, such as is contained in the first count, upon proof of facts that bring the case within said section of the Code.