State (Fenner, Complainant,) v. Luther

8 R.I. 151

Opinion

Brayton, J.

It is true, that in the clause of the statute relied upon, neither the word “ maliciously ” nor the word “ wantonly ” is employed to characterize the offence, as in other clauses of the same act. Still, we cannot hold that the legislature intended that a person should be convicted and punished, as for a larceny, for taking property openly, under a fair claim of right. We think it should have been left to the jury to determine, upon the evidence, whether the defendant honestly, in good faith, believed the property in question was his own. The charge of the court, as we interpret it, was not of this character.

The defendant’s exceptions are sustained, and a new trial is ordered in the Court of Common Pleas.