
    Jackson v. The State.
    
      Indictment for Larceny.
    
    1. Larceny; sufficiency of .evidence. — On a trial under an indictment which charges the defendant with the larceny of a cow, the fact that some time after the caption of the cow the defendant entertained the belief that the cow belonged to him, does not authorize an acquittal of the larceny charged; since the defendant may have been guilty of feloniously taking and carrying away the property of another, and subsequently to such caption have come to the conclusion that it was his own property.
    2. Same; fact of taking in presence of others does not remove felonious intent. — The fact that property alleged to have been stolen, was taken by the defendant and carried away in the presence of others, does not, of itself, justify an acquittal under an indictment for the larceny of such property.
    Appeal from the City Court of Montgomery.
    Tried before the Hon. William II. Thomas.
    The appellant in this case, Leroy Jackson, was in-dieted, tried and convicted for the larceny of a cow.
    On the trial of the case the evidence for the State tended to show that the cow alleged to have been stolen by the defendant was in a pasture, that the defendant took the cow from tbe pasture one afternoon and drove her to his home; that said cow was not marked at the time she was taken from the pasture by the defendant; that tbe next morning, after taking the caw from the pasture, the defendant marked her and put her in another pasture. The ownership of the cow taken by the defendant was proved as laid in the indictment.
    There was evidence introduced by the defendant tending to show that the cow taken by him was very much like a cow owned by his wife, that he could not find the cow owned by his wife, and.going t0‘ the pasture1 took the cow alleged to have been stolen, in the presence of other people, and drove her to his home, believing that it was his wife’s cow and that he marked her with his mark.
    There was other evidence introduced tending to show that the defendant and his wife owned two cows, and that before they were turned out to run at large, he marked each of the cows. The defendant as a witness in his own behalf testified that when he marked the cow which was taken by him from the pasture, he thought it was his cow, and that the cow which he had previously marked was not his cow.
    
      I he defendant requested the court to give to the jury the following charges, and separately excepted to the court’s refusal to give each of them as asked: (7.) “If the jury believe all the evidence., they must acquit the. defendant.” (8.) “If the jury believe that Leroy Jackson, when he marked the first cow, believed the first cow was his cow and afterwards when he went out to look for his cow, he found a cow that was just like his cow arid he then honestly believed he had previously marked the wrong cow, and marked the last cow, under this belief, you should acquit the defendant.” (9.1 “I charge you gentlemen of the. jury that the fact, and circumstance' that the property or cow alleged in the indictmenfc to have been stolen was taken open and notoriously and in the presence of others by the defendant, carries with it evidence: that the taking was only a civil trespass and not a crime.”
    L. A. Sanderson and Hill & Hill, for appellant,
    cited Roundtree v. State, 58 Ala. 381; Johnson v. State, 73 Ala. 523; Newson v. Slate, 107 Ala. 138; Littlejohn v. Slate, 59 Miss. 273.
    Massey Wilson, Attorney-General, for_ the State,
    cited Bonne-i' v. State, 125 Ala. 49; Talbert v. State, 321-Ala. 33; Dozier v. State, 330 Ala. 57.
   McCLELLAN, C. J.

The cow charged to have been stolen by the defendant was taken, and carried away by him the afternoon before the morning on which he marked it. He might, of course, have been guilty of feloniously taking and carrying away the animal of another on that afternoon and still have come by the next morning when he marked it to believe that it was his own or his wife’s. In other words, the jury were not bound to acquit him of the larceny charged upon the conclusion by them that some time after the caption he entertained the belief that the cow belonged to him. Charge 8 requested by the defendant was, therefore, properly refused.

The general charge and charge 9 requested by the defendant proceed on the unwarranted assumption of law that larceny cannot be predicated of a taking and asportation in the presence of others. — Brown v. State, 125 Ala. 49; Talbert v. State, 121 Ala. 33.

In so far as charge 9 asserts that the openness of the caption is evidence that the taking was “a civil trespass and not a crime,” it is a mere argument.

Affirmed.  