
    Booth v. Commonwealth.
    1847. June Term.
    
    1. On a trial for larceny, the Court instructs the jury, “ That it must be proved that the original taking was felonious; but that the jury had a right to infer, from all the facts and circumstances of the case, the felonious intent in the original taking: and that not in one case in a hundred could it be proved directly, that the original taking was felonious. There is no error in the instruction.
    
      2. After an oral instruction has been given to the jury without objection, and the jury have retired to consider of their verdict, the Court is not bound, on the motion of the prisoner, to recall the jury, that the instruction may be reduced to writing; or to send a written instruction to them.
    The prisoner was indicted in the Circuit Court of the county of Henrico and the City of Richmond, for larceny, in stealing a mare, saddle and bridle, the property of David Meade, of the county of Brunswick. On the trial it appeared that the mare was taken out of the stable of David Meade, in the county of Brunswick, on the night of the 8th of October 1846; and on the morning of the 10th she was found in the possession of the prisoner in the City of Richmond. On that morning he employed an auctioneer to sell the mare for him; and the sale was in progress when the prisoner was arrested.
    It appeared further, that the prisoner was the brother-in-law of R. E. Meade, the son of David Meade; that the son, with his family, lived in the house of his father ; and that the prisoner spent some weeks with R. E. Meade, and had left the house about two weeks before the mare was missed; and that whilst there he was regarded as an inmate of the family, and rode the horses of both David, Meade and his son without objection on their part.
    Upon the conclusion of the argument of the case, the counsel for the prisoner moved the Court to instruct the jury upon the law of the case; and the Court instructed the jury, “ That it must be proved that the original taking was felonious; but that the jury had a right to infer from all the facts and circumstances of the case, the felonious intent in the original taking ; and that not in one case in a hundred could it be proved directly, that the original taking was felonious.”
    The instruction was given without being reduced to writing, and was not at the moment objected to by the prisoner’s counsel; but after the jury had been directed to retire to consider of their verdict, and before all of them had gotten to their room, the counsel asked the Court to recall them that the instruction might be reduced to writing, and might be given so as to prevent a misapprehension of it by the jury: but the Court refused to recall them ; whereupon the counsel offered the following written instruction, viz: “ The law of this case clearly requires that the original taking must be proved to have been felonious to warrant a conviction and requested the Court to send it to the jury, which the Court refused to do; but after the jury had returned into Court with their verdict, and before it was rendered, the Court consented to hear it read, but the counsel declined then to read it, as the verdict was then agreed upon by the jury. And thereupon the prisoner by his counsel excepted to the instruction given by the Court, and also to the refusal of the Court to recall the jury, or send to them the instruction offered by the counsel for the prisoner.
    The jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at five years: Whereupon he moved the Court for a new trial on the ground of misdirection by the Judge; and because the verdict was contrary to the evidence. But the Court overruled the motion and gave a judgment on the verdict, and the prisoner again excepted, and applied to this Court for a writ of error.
    
      John H. Gilmer and Cannon, for the prisoner.
   By the Court.

The writ of error is unanimously refused.  