Wolf v. State

41 Ala. 412

Opinion

BYRD, J.

The indictment is predicated on section 3174 of the Code, which declares, that “ any person, who commits the crime of larceny, by stealing any personal property, not exceeding twenty dollars, is guilty of petty larceny,” &c. This leaves the offense, as to its ingredients, except the value of the property, the same as at common law. As a general rule, an attempt to commit a misdemean- or, is a misdemeanor; and section 3301 of the Code prescribes the mode and measure of punishment.—1 Bishop’s Criminal Law, § 683 (520); The State v. Murphy, 6 Ala. 765. On an indictment for a misdemeanor, a conviction for an attempt to commit the offense may take place—Code, § 3601; Penal Code of 1866, § 647; Revised Code, § 4199. The first charge asked was correctly refused by the court. The prisoner might have been convicted of an attempt to commit larceny, without any caption or asportation of the property. But he could not be convicted of larceny, without proof of a taking and carrying away the property. All the evidence is set out in the bill of exceptions ; and we are satisfied that it does not show such a taking and carrying away of the property as is necessary to make out the offense of larceny.—2 Bishop’s Criminal Law, §§ 804 (699), 806 (701); 3 Greenleaf’s Ev. §§ 154, 155; Spivey v. The State, 26 Ala. 90, and authorities cited. The court should have given the second charge asked, and on this account, the judgment of the court must be reversed; and as a conviction may be had, for an attempt to commit the offense with which the prisoner is charged, if the evidence should satisfy the jury that he is guilty of such attempt, the cause will be remanded for another trial.

Beversed and remanded.