Parker v. State

111 Ala. 72

Opinion

PER CURIAM.

The defendant was charged with the larceny of a pidw-stock. There are certain designated subject matters, the felonious taking and carrying away of which, is by statute declared to be larceny without regard to value, such as a horse, hog, a part of an outstanding crop, &c. When the statute does not declare the articles to be the subject of larceny without reference to value, it is necessary to aver and prove, to authorize a conviction, that it was property and of value, probably with the single exception of money. — Lucas v. The State, 96 Ala. 51. The courts take judicial knowledge that money is property and of value. — Gady’s Case, 83 Ala. 51. In the case before us', there is no evidence of the value of the plow-stock, or that it had any value. The record purports to contain all the evidence. This question was raised by the request of the defendant to give the general charge. Under the evidence, it should have been given.

There was no count or alternative charge in the complaint for embezzlement. If the evidence made out a case of embezzlement instead of larceny, the defendant could not be convicted of larceny. The two. offenses may be united in one complaint in different counts, and when the complaint is thus framed to meet one offense, an election will not be ordered.— Upshur v. State, 100 Ala. 2; Butler v. State, 91 Ala. 87. The charge is for larceny only. As to the difference between larceny and embezzlement when applied to the facts of this case, see Holbrook v. State, 107 Ala. 154; Washington v. State, 106 Ala. 58; also Crocheron v. State, 86 Ala. 64.

Reversed and remanded.