Opinion
11-18-1902
STATE v. PALMER.
Herbert H. Ward, Atty. Gen., for the State. Daniel C. Hastings, for defendant.
Albert Palmer was indicted for larceny. Verdict of guilty.
Argued before , and SPRUANCE and GRUBB, JJ.
Herbert H. Ward, Atty. Gen., for the State.
Daniel C. Hastings, for defendant.
LORE, C. J. (charging jury). Albert Palmer is charged in the indictment with larceny, which is the felonious taking and carrying away of the personal property of another with intent to convert it to the taker's own use, and to deprive the owner of the same without the owner's consent.
We have been asked by the counsel for the defendant to charge you that if you believe that this defendant had driven away the horse without the consent of the owner, but not with the felonious intent of converting it to his own use, then you might find a verdict of guilty of a misdemeanor, under the act of March 9, 1883 (Rev. Code, p. 944), which provides punishment for persons who, without the consent of the owner, but not feloniously, take and drive off a horse or other animal. No such verdict can be rendered in this case. Your verdict must either be "Guilty," or "Not guilty," as he stands indicted. That statute does not apply to charges of larceny.
Where property is stolen, and there are two persons present, though one may take no particularly active part in it, yet, if he is present, aiding, procuring, abetting, or counseling the other, under the law of this state he is equally guilty with the person who actually takes the property. Your inquiry in this case is simply as to the fact as to whether this man took this property with a felonious intent. In that respect it is not tested by the intent with which he converted it after the taking, or by his actions afterwards,—only so far as they indicate the intent at the time he took it.
It has been well said that: "It seems to be of the essence of the crime of larceny that it be committed lucri causa, or with the motive of gain or advantage to the taker, though it is not necessary that it be a pecuniary advantage. It is sufficient if any other benefit to him or to a third person is expected to accrue. Thus where one clandestinely took a horse from a stable, and backed him into a coal pit a mile off, thereby killing him, that his existence might not contribute to furnish evidence against another person who was charged with stealing the horse, this was deemed sufficient lucrum or advantage to constitute the crime of larceny. So if the motive be to procure personal ease or a diminution of labor to the taker, as where a servant, by means of false keys, took his master's provender and gave it to his horses with that intent, this alsohas been held sufficient." 3 Greenl. Ev. (13th Ed.) § 157. So that it is not the extent of the conversion, but the intent with which the person takes the property, and that intent is to be ascertained as of the time he takes it. The circumstances surrounding the taking of the property may indicate to you what his intent was. So that if you believe from all the circumstances surrounding this case that this defendant either took the gelding himself, or aided or assisted another in the taking thereof, with the felonious intent to convert it to his use, without the consent of the owner, then your verdict should be, "Guilty in manner and form as he stands indicted."
It is incumbent on the state to prove to your satisfaction, beyond a reasonable doubt, all the material elements of this crime. If, after a conscientious consideration of all the evidence, you entertain a reasonable doubt, that doubt should inure to the benefit of the prisoner. You have heard the evidence, and upon it you are to say whether, in your judgment, this prisoner be guilty or not guilty as he stands indicted.
Verdict, "Guilty."