
    Blunt v. The Commonwealth.
    July, 1834
    [26 Am Dec. 341.]
    Larceny — What Consulates Felonious Intent — Case ct Bar. — If a person obtain possession of a watch from the owner, by a false and fraudulent pre-tence of buying it for cash, and then carry it away without the consent or knowledge of the owner, he is yet not guilty of larceny, unless it was with a felonious intent that he so obtained possession of the watch and carried it away.
    Crinaiasal Law — Instruction—üteqneGt íor.‡ — The court, in the trial of a criminal cause, may properly instruct the jury on any question of law, when in its opinion justice requires such interposition, though it be not asked by either party.
    Lrror to a judgment of the circuit supe-riour court of Henrico. At the last term of that court, Blunt was indicted, *tried, and convicted by the verdict of the jury, and sentenced by the court, to imprisonment in the penitentiary for two years, according to the verdict, for grand larceny; namely, the stealing of a gold watch, seal and chain, the properly of J. Johnson. At the trial, the counsel for the prisoner moved the court to instruct the jury, that if they should find from the evidence, that the prisoner had bargained for the watch with Johnson’s clerk, who delivered the same to him on a promise that he would pay the price for it immediately, and that the prisoner carried it away with him, and failed and neglected to return and pay the price, in such case he was not guilty of the larceny charged in the indictment. The court refused to give such instruction ; and instructed the jury, that if they should find from the evidence, that the prisoner made a bargain with Johnson’s clerk for the watch, in pursuance of which the watch was delivered to him, upon his promise to pay the price immediately, intending that the prisoner might take the watch away, and return immediately and pay for it, then he was not guilty of the larceny. But if the jury should find, from the evidence, that the prisoner obtained possession of the watch by a false and fraudulent pretence of buying it for cash, and then carried it away without the consent or knowledge of the owner’s clerk, then he was guilty of the larceny. To these opinions of the court, the prisoner filed exceptions.
    And now he presented his petition to this court for a writ of error to the judgment; assigning as errors, 1. that the court erred in refusing to give the instruction to the jury asked by the prisoner’s counsel; 2. that the court erred in proceeding, after refusing the instruction asked by the prisoner’s counsel, to give any instruction to the jury, not asked by the attorney for the commonwealth or by the counsel for the prisoner; and 3. that the instruction, which the court did give to the jury, was erroneous. The writ of error was allowed.
    Briggs, for the plaintiff in error.
    
      
       Larceny. — See monographic vote on “Larceny” appended to Johnson v. Com, 24 Gratt. 555.
      ¡.InstniciiOkis — Request for.-In State v. Cobbs, 40 W. Va. 718, 22 S. E. Rep. 311, Jx/duk Bbannon speaking for the court, said: “In this state, no duty rests on the judge, to instruct on the general features of the case, law, or fact. 1 have said that the matter of instructing as to punishment falls under the law of instructions. Under that, it was not the duty of the judge, unasked, to give the instruction. We are not discussing the question whether it is error for a judge, without request by either side, to give instructions, as in Gwatkin's Case, 9 Leigh 678. I do not doubt that, as held in Blunt's Case, 4 Leigh 689, the court may properly instruct the jury on a question of law when,tin its opinion, justice requires such interposition. though it be not asked by either party. But the question in point now is whether a court is bound, without request ot speciiic instructions, to give them. It is clearly not so under our practice. Dejarnette’s Case, 75 Va. 877: Rosenbaums v. Weeded, 18 Gratt. 785 : 4 Minor 747: State v. Caddle, 35 W. Va. 73, 12 S. E. 1098. The cases of Kitty v. Fitzhugh, 4 Rand. (Va.) 600, Brooke v. Young, 3 Rand. (Va.) 106. and Womack v. Circle, 29 Gratt. 193, holding that a party must ask instructions on speciiic points, and that even when asked the court is not bound to instruct generally on the law of the ca.se. logically negative the claim that it is error for a court not to instruct when not asked. The party must ask specific instructions. ’ ’
      See further, monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
    
   *MAY, J.,

delivered the resolutions of the court: 1. That the instruction asked by the prisoner’s counsel, was properly refused; because, if the prisoner acquired possession of the 'watch in the manner therein stated, with a felonious in- . tent at the time to carry it away, and appropriate it to his own use, without paying' for it, he may have been guilty of larceny in so doing. 2. That the prisoner’s counsel having applied to the court for an instruction on the law, and the court having refused to give it in the precise form in which it was asked, it was correct that the court should give one with such modification as, in its opinion, was legal and proper. For the court may, at all times, instruct the jury on any question of law arising in a cause, if, in its opinion, justice shall require such interposition. 3. That the instruction, however, which was given, was erroneous in this, that although the prisoner may have obtained possession of the watch in the fraudulent manner indicated in the latter part of the instruction; yet, unless he so obtained it, and carried it away, with a felonious intent at the time, he was not guilty of larceny.

The judgment is, therefore, reversed, and the cause sent back to the circuit superiour court of Henrico, for a new trial to be had: in which trial, if any instruction shall be moved for on the same subject, or the evidence shall require it, the court is directed to instruct the jury, that if they shall find from the evidence, that the prisoner with a felonious intent obtained possession of the watch by false and fraudulent pretenses, and afterwards carried away the same, without the consent of the owner or his clerk, 'then the prisoner is guilty of larceny.  