
    Busby v. The State.
    
      Indictment for Larceny.
    
    1. Larceny; constituents of offense; instructions to the jury. — Where on a trial for larceny the evidence- shows that the defendant, without the knowledge or consent of the owner, with whom he had been playing, took some shirt buttons from the latter’s pocket, and as he was going away from the defendant said that he would leave the buttons at a certain place where the owner could get them by paying a stipulated sum, a charge is erroneous and is properly refused as being calculated to mislead and confuse the jury, which instructs the jury, that “While larceny includes a trespass, in that it involves felonious intent and fraud or secretiveness' in effecting it; and the knowledge of another’s ownership and the intent to deprive him of it are not equivalent of these elements.”
    Appeal from the City Court of Mobile.
    Tried before the Hon. O. J. Semmbs.
    The appellant was. indicted, tried and convicted for the offense of grand larceny.
    On the trial of the cause the evidence showed that while at a shop of one Vincent Peres, the defendant, Willie Busby, caught hold of said Peres and took from his pocket three stud buttons, and that the same were taken from said Peres without his consent and without his knowledge. -There was evidence introduced tending to show that the taking of said buttons was open and in the presence of witnesses, and that said Peres and the defendant were playing with each other a few minutes before the takingand immediately after the time the buttons were taken, and before the defendant moved away, he said to Peres “that he would leave the buttons at his, Busby’s wife’s house, and he, Peres, could get them by leaving twenty-five cents with her, which he owed the defendant,”
    
      The defendant requested the court to give to the jury the following written charge, and separately excepted to the court’s refusal to give the same as asked : “While larceny includes a trespass, in that it involves felonious intent and fraud or secretiveness, in effecting it; and the knowledge of another’s ownership and the intent to deprive him of it, are not equivalent of these elements.” The refusal of this charge is the only question presented on this appeal.
    C. W. Tompkins, .for appellant.
    William C. Fitts, Attorney-General, for the State,
    cited ITiggs v. State, 113 Ala. 36.
   COLEMAN, J.

The defendant was indicted and convicted of the offense of grand larceny. The only exception reserved upon the trial was that of the refusal of the court to give the instruction to the jury which appears in the statement of the case. As framed the instruction is not clear, and considered in connection with the facts of the case, was calculated to confuse the jury. We presume, the pleader intended to embody the principle supposed to be asserted in Lunsford v. Dietrich, 93 Ala., top of page 571, but the phraseology of the instruction requested, and its connection, fails to carry the same meaning, and the principle was no.t applicable. The true rule applicable to the case of appellant is stated in Higgs v. The State, 113 Ala. 36.

There is no error in the record.

Affirmed.  