
    John Eckels v. The State of Ohio.
    1. Where goods are taken, with a felonious intent, the felony lies in the very first act of removing them.
    2. When the offence of larceny is once completed, by a sufficient taking and removal, it will not be purged by a return of the property, though the possession be retained by the thief but for a moment.
    ■ 3. The least removing of the entire thing taken, with an intent to steal it, if the thief thereby, for the instant, obtain the entire and absolute possession of it, is a sufficient asportation, though the property be not removed from the premises of the owner, nor retained in the possession of the thief.
    4. Where the defendant was indicted for stealing money from a drawer, which the evidence tended to prove; held — it was not erroneous to charge the jury that: “ If he had actually taken the money into his hand, and lifted it from the place where the owner had placed it, so as to entirely sever it from the spot where it was so placed, with the intention of stealing it, he would be guilty of larceny, though he may have dropped it into the place in which it was lying, upon being discovered, and never have had it out of the drawer.”
    Error to the court of common pleas of Hamilton county.
    .At tbe June term, 1870, of the court of common pleas of Hamilton county, the plaintiff in error was indicted for stealing one hundred and twenty-five dollars in money of Christian Koehler. On the trial it was proved that the-prisoner went into the boot and shoe store of Koehler in Cincinnati, and, passing about forty feet to the back part of the store where Koehler was cutting out work on a counter,. asked the price of a pair of boots in the front show window, and took a seat in front of the counter. Koehler went to-the window to get the boots, and, looking back while he was there, he discovered the prisoner behind the counter, with his hands down behind the counter where the money-drawer was situated. As Koehler started towards the prisoner, he returned to his seat in front of the counter. He was immediately arrested, and asked why he went behind the counter; to which he replied, that he “ saw a rat run behind there.” There were one hundred and twenty-one dollars in the drawer in bills of different denominations, which, shortly before the prisoner came, Koehler had assorted and arranged in three piles. The drawer was closed when Koehler went to the-front window. When he returned it was partly open, and the money had been disturbed. It “ was in a bunch in one corner of the drawer,” with one bill partly out hanging over the drawer. No one but the prisoner had been at the drawer. “The money had the appearance of having been crumpled up in his hand,” but was all found in the drawer. The prisoner was handed over to a police officer, to whom he stated that he was a stranger in the city, and that “ this was the first job he tried on,” etc.
    The counsel for the prisoner requested the court to give the following charges to the jury, which were refused:
    1. “ That unless the proof shows affirmatively that money was taken out of the drawer, and in possession of the prisoner absolutely, the verdict must be not guilty. And that" the circumstance that the drawer was found closed, or half open, even, or open entirely, and the money disordered, while it would strengthen direct testimony, is not sufficient in itself to warrant the jury in finding that the prisoner had the money in his possession.”
    
      2. “ That the taking must be proved by the best evidence, which would be the possession of the money alleged to be taken, or the testimony of persons who actually saw the prisoner remove the money from the drawer and replace it.”'
    3. “ That the prosecutor must prove every fact which enters into the statement of the charge; and while it may be true that the prisoner entered that store with a felonious in-. •tent, and went to the drawer with a felonious intent, still it is incumbent on the prosecutor to show, by affirmative evidence, beyond a reasonable doubt, that the prisoner actually took the money in his hand and removed it from the place it was placed by the owner.”
    The part of the charge of the court to the jury complained of is as follows :
    “If the defendant removed the money from the place where Mr. Koehler had placed it, with the intention of stealing it, he would be guilty of larceny, even if he did not actually get it out of the drawer before being discovered. If he had actually taken the money into his hand, and lifted it from the place where the owner had placed it, so as to entirely sever it from the spot where it was so placed, with the intention of stealing it, he would be guilty of larceny, though he may have dropped it into- the place it was lying, upon being discovered, and never have had it out of the drawer.”
    To the refusal of the court to charge as'requested, and to the charge as given, the counsel for the prisoner excepted.
    The jury returned a verdict of guilty; thereupon the coun.sel for the prisoner moved for a new trial, on the ground that the verdict was against the law and the evidence, and for error in the charge of the court to the jury. The court overruled the motion, and exceptions were taken.
    Judgment and sentence were rendered upon the verdict, to reverse which this writ of error is prosecuted.
    
      O. J. Dodds, for plaintiff in error:
    1. The evidence was not sufficient to sustain the verdict.
    However strong the proof may be as to the felonious intent, there is no direct evidence of taking or carrying away, either actual or constructive.
    Where there is no direct evidence of the larceny, from testimony of some person who actually saw the accused convert it, his guilt could only be proved by his own admissions, or by evidence of facts from which the jury may fairlj presume it. 2 Archbold, 397.
    No witness testified that he actually saw fihe prisoner have the money in his possession, or take it in his hand, having complete possession of it, severing it entirely from the place where it was put by the owner. Taking can only b & presumed from possession, or proof of possession before arrest; The evidence in this case shows that the prisoner did not have a cent in his possession, that none of the money was found on the floor or on top of the counter, but it does show that all of it was in the drawer. In other words, there is no direct evidence of taking, and there is no evidence showing that the prisoner had any of the money in his possession, so the taking cannot be presumed.
    Eckels was guilty of trespass merely, of an attempt to commit theft.
    2. The court below erred in charging the jury that, “ If the defendant removed the money from the place where Mr. Koehler had placed it, with the intention of stealing it, he would be guilty of larceny, even if he did not actually get it out of the drawer before being discovered.” If that proposition be correct, the slightest removal of position is a sufficient taking and carrying away, to constitute larceny, which is clearly opposed to the authorities. The position of chattels may be changed without actual taking or severance.
    The taking and carrying must be absolute. The prisoner must have the goods entirely in his possession. The mere .alteration of places is not sufficient to make out a case of larceny. This was settled in Cherry's case, 2 East P. C. 556.
    So long as the money remained in the drawer it was in the possession of the owner, and larceny cannot be committed where the possession of the owner was not interrupted and broken. A disturbance of position in the place where the money was put by the owner cannot reasonably be construed and held to be a removal and severance and talcing a/way of the money from the place where put by the owner.
    See cases in 2 East P. C., p. 556, referred to in 2 Russell on Crimes, p. 6; 1 Leach, referred to in 1 Russell, 869, 870; 3 Creenl. Ev. 121.
    The court below erred in refusing to give the first and second charges asked in behalf of the prisoner, for the reasons above stated. The State v. Wilson, Coxe, 439; The State v. Carr, 13 Term. 571; 2 Archbold, 408.
    3. The court below erred, also, in refusing to give tho third charge asked by counsel for the accused.
    Every person charged with crime is presumed to be innocent until the contrary is proved. The court nowhere charged the jury on this point. It was erroneous to refuse to do so.
    The other proposition, that the prosecutor must prove every fact entering into the statement of the charge, is sustained by 1 Archbold, 387.
    
      F. B. Pond, attorney-general, for the State.
   Day, J.

It is claimed on behalf of the plaintiff in error that the charge given to the jury was erroneous; and that the-court erred in refusing to charge as requested, and in refusing to grant a new trial. These are the alleged errors chiefly relied on for a reversal of the judgment.

The material question made under each of these assignments of error is, where there is an intent to steal goods,, “ what is a sufficient taking and carrying away to constitute-the crime of larceny %

In order to constitute the offence of larceny, there must be an actual taking, or severance of the thing, from the possession of the owner, for, as every larceny includes a trespass, if the party be not guilty of a trespass in taking the goods, he cannot be guilty of a felony in carrying them away.”' Roscoe’s Crim. Ev. 587; 2 Russ, on Crimes, 5.

There must also be a carrying away of the goods taken.. When this is done the offence is complete, — the crime is committed, — and cannot be purged by a return of the goods, though the possession be retained but for a moment. 8; Greenleaf’s Ev. sec. 156; 2 Russ, on Crimes, 6.

The felony lies in the very first act of removing the property : therefore the least removing of the entire thing taken,, with an intent to steal it, if the thief thereby, for the instant,, obtain the entire and absolute possession of it, is a sufficient asportation, though the property be not removed from the-premises of the owner, nor retained in the possession of the-thief. Thus, where the defendant, with a felonious intent,, lifted a bag from the bottom of the front boot of a coach,'but,, before getting it completely out of the space it had occupied,, he was detected; yet as each part of it had been removed from the space which that specific part occupied, the asportation was held to be complete. Rex v. Walsh, 1 Moody, 14. So where the prisoner moved a parcel of goods from the forepart to near the tail of a wagon, when he was detected ; it: was held that, as the prisoner had removed the property from the spot where it was placed, with an intent to steal, the asportation was sufficient to constitute the offence. 2 East P_ C. 556. Also where a lady’s ear-ring was torn from her ear,, and at the same time lost in her hair; inasmuch as it was,, for an instant, in the possession of the prisoner, separate from the owner’s person, it was held that the asportation was-complete. 2 East P. C. 557. See also 2 Wat. Arch. [*380] ;. Rose. Crim. Ev. [*588, 589], and 3 Greenleaf’s Ev. secs. 154- and 155.

On the other hand, there is a class of cases, where the-property taken is not entirely moved from the spot where it was placed by the owner, or where it is attached to some other thing not moved, or to ’the person of the owner. In this class of cases it has been held that there was no asportation, since there was no complete severance of the property from the possession of the owner. 2 East P. C. 556; 1 Hale P. C. 508. “ In these cases,” says Bishop, in his work on Criminal Law (vol. 2, sec. 804 [699] ), the prisoner’s control, over the thing was not for an instant perfect; if it had been,, it would have been sufficient, even though the control had the next instant been lost. So the court held, where a man’s watch and chain were forced from his pocket, but the key of the watch immediately caught and fastened itself upon a button, the’.larceny was complete.” 29 Eng. L. & Ecp 530. So also where the prisoner drew a pocket-book out of the inside breast-pocket of the prosecutor’s coat, about an inch .above the top of the pocket, and, being then suddenly apprehended, let go the pocket-book, and it fell back again into .the pocket, the asportation was held sufficient to constitute the crime of larceny. Rex v. Thompson, 1 Moody, 78. So it is said that “ drawing a sword partly out of the scabbard will constitute a complete asportavit.” 2 Russ, on Crimes, 6.

It would seem, then, that the test as to the felonious asportation of property is not the fact that it has been taken out of the place of its deposit, but rests in the removal of the entire property by the thief, however slight, while.it is in his absolute possession.

Let us apply the principles thus settled by the authorities to the case before us. If it stood alone upon the first sen-fence of the charge in question, while it is correct as a general proposition, it may be regarded as too general if nothing further had been added; for, possibly, the defendant might have moved the money in the drawer without having obtained the entire and absolute possession of it. But the court immediately proceeded to exclude this possibility from the meaning of the first sentence, by adding a clear and more definite statement of the same proposition, defining what kind of a taking and removal of the money was necessary to constitute the offence. The first sentence is merely a general statement of the law, with a denial of what had been claimed on the part of the defendant, that there could be no larceny unless the money was taken out of the drawer. We do not think its generality could mislead the jury, being, as it is, but part of the charge which clearly controlled the general language, so as to exclude the idea that any removal of the money would be sufficient to constitute the offence, unless •the defendant feloniously obtained the entire and absolute possession of it.

The court charged the jury that, “ If he had actually taken the money into his hand, and lifted it from the place where the owner had placed it, so as to entirely sever it from the spot where it was so placed, with the intention of stealing it, he would be guilty of larceny, though he may have dropped it into the place it was lying, upon being discovered, and never have had it out of the drawer.”

The charge recognizes the necessity of a felonious taking of the property, that it must be severed, and lifted or carried, from the place where it was left by the owner, and be, for the instant, at least, in the entire and absolute possession of the party accused : this, according to the authorities, constitutes larceny, though the money may have been dropped where it was found, and never taken out of the drawer; for it is “ well settled that the felony lies in the very first act of removing the property.” 2 Russ, on Crimes, 5.

This view of the case goes far to dispose’ of the questions made on the refusal of the court to instruct the jury as requested on behalf of the prisoner. The charges requested were contained in three distinct propositions, neither of which, as a whole, was correct, and, therefore, according to the well-settled rule in this State, might be properly refused. The first might be refused because it requested the court to instruct the jury that they must acquit the prisoner unless the proof showed that the money was taken out of the drawer. The second might be rejected for the same reason, and, also, for the further reason, that it precluded a conviction except upon direct evidence, or evidence of th¿ possession of the money by the prisoner. There was no error in refusing to charge as requested in the third proposition, for it was embraced in the charge given to the jury, unless by the words, “ affirmative evidence,” it was intended to request a charge that a conviction could not be produced without dvreet or positive evidence that the prisoner took the money in his hands and removed it. From the context, and the use of the term “affirmative” in other parts of the requests, it would seem that this was the sense in which it was used : if .so, the-request was properly refused, for it excluded the possibility of finding the facts that constitute the offence charged upon circumstantial evidence, which may be equally satisfactory and certain as that of a direct character.

It remains to determine whether the court erred in overruling the motion for a new trial. This raises the question whether the evidence was sufficient to warrant a conviction. The felonious intent of the accused is not questioned. Nor are we prepared to say that the jury were not warranted in finding, from the evidence, that he took the money into liisentire and absolute possession, severed it from the possession* of the owner, for the moment at least, and removed it from the place where it was before. We cannot say the jury could not fairly find that the money was taken, and that the first act of removing ” it was complete. The case is a close-one. Between innocence and guilt there is, in law, but a line: the jury found that the defendant had' crossed it. From the evidence, we cannot say he had not. Nor could the court below. It was a case, therefore, where the court might properly refuse to grant a new trial on the ground that the verdict was not sustained by the evidence.

There are some minor questions- made xxpon the record, in which, however, we see no error; but, as they are not urged here, they need not be further noticed.

It follows that the judgment of the common pleas must be-affirmed.

Scott, C.J., and Welch, White, and McIlvaine, JJ., concurred.  