Scarver v. State

53 Miss. 407

Opinion

Campbell, J.,

delivered the opinion of the court.

The instructions given for the State (No. 1 and No. 2 in the record) are erroneous: the first, because it announces that successive petit-larcenies, when consolidated, constitute grand larceny, which is not true. It is true that, where there is one continuing transaction, the thief may be convicted of the final carrying away, although there may have been several distinct asportations in the view of the law ; but where there are successiv^larcenies, each complete and distinct, and not constituting one continuous transaction, the mere retention and possession by the thief of the fruits of his petit larcenies does not make him guilty of grand larceny.

The second instruction is erroneous, because there is no presumption that articles found in one’s possession were “ all stolen at the same time,” when the evidence shows that they were probably not all taken from the possession of the owner at one time, but at different times. Another objection to this instruction is, that it does not embrace the idea that mere possession must be recent to raise a presumption of guilt; but this qualification is contained in another instruction directly on this subject, and that cures this omission.

Judgment reversed, new trial awarded, and case remanded.