
    Hunt v. The State.
    
      Indictment for Larceny.
    
    X. Larceny of “hoy,” or other animal named in the statute; constituents of offense. — The act amending section 3706 of the Revised Code, approved February ¡¡20, 1875 (Sess. Acts ] 874-5, p. 259), which makes it grand larceny to steal any cow, sheep, hog, or other animal therein specified, “or any personal property, other than that hereinbefore enumerated, exceeding twenty-five dollars in value,” applies only to the live animals named, and not to their carcases : the larceny of the carcase, unless it exceeded twonty-five dollars in value, would be petit larceny only.
    2. Same; felonious intent. —Under this statute, if a person kills a hog accidentally, or recklessly, and afterwards steals and carries away the carcase, or any part of it, less than twenty-five dollars in value, he is not guilty of grand larceny ; but, if he kills the animal with the intent to steal its carcase, or any part thereof, and afterwards carries such intent into effect, he is guilty of grand larceny, without regard to the value of the part so stolen and carried away.
    Feom the Circuit Court of Bibb.
    Tried before the Hou. JOHN Henderson.
    
      Tbe indictment in this case, wbicb was found in September, 1876, charged that tbe defendant “ feloniously took and carried away a bog, of tbe value of six dollars, tbe personal property of D. M. James.” Tbe defendant pleaded not guilty; was convicted, under tbe charge of tbe court, and sentenced to imprisonment in tbe penitentiary for tbe term of two years. “On tbe trial,” as tbe bill of exceptions states, “ D. M. James, a witness for the State, testified as follows: On. tbe 16th July, 1876, witness lost a bog, of tbe value of six dollars, and found its body, a few days afterwards, in a swamp in tbe field of Thomas Peters. "When be found it, its ears were cut off, and lying near by; its entrails bad been taken out; tbe bams bad been skinned, and severed from tbe body, in a manner which showed that it bad been done with a knife, or some other sharp instrument. When witness saw it, it bad been dead about three days, and tbe dogs had been eating it. It was lying in tbe field of said Thomas Peters, about two hundred and fifty yards from bis bouse, and about three hundred and fifty yards from tbe defendant’s bouse. There were two other families of negroes living on said place, besides defendant, and about one hundred and fifty yards further off from where be found tbe bog than tbe defendant lived. On tbe same day, after finding tbe bog, witness arrested tbe defendant, who thereupon told him, that tbe other boys were as deep into it as be was, but be, poor devil, bad all tbe blame to bear; that be killed the bog accidentally; that be, Granville Blakely and Lafayette Davidson were driving out of a lane, wbicb belonged to said Peters, and bad a pair of bars at tbe end, a lot of bogs belonging to witness, and at tbe request of said Peters, to whom they were employed as agricultural laborers; that in driving said bogs out of said lane, tbe one killed broke away from tbe others, and ran past him, and that be threw at it an old axe, wbicb be bad just picked up, and accidentally killed it. Thomas Peters, another witness for tbe State, testified, in substance, as follows: On tbe 16th July, 1876, about nine or ten o’clock, witness was riding through bis plantation, and met tbe defendant and Granville Blakely, both of whom were in bis employment, in bis field, near tbe place where tbe bog was found, and coming from that direction, and asked them if they bad seen any bogs in tbe field, to wbicb they replied, that they bad not. Witness then passed on, but returned in about half an hour, and was met by tbe defendant, with Granville Blakely and Lafayette Jones; and defendant then told him voluntarily, and before be (witness) bad said anything to him, that be bad accidentally killed one of Mr. James’s bogs. After be met defendant tbe first time, but before defendant told him tbis, witness bad found tbe bog in tbe swamp in bis field. At tbe time witness found it, its ears bad not been cut off, its bams bad not been skinned, and it was in all respects in tbe same condition as when first killed. Witness saw tbe bog again tbe next day; at wbicb time, its ears bad been cut off, and its bams skinned and carried away. Granville Blakely testified, in substance, as follows : On tbe .morning of tbe 16tb July, 1876, witness, Lafayette Jones and defendant went out into tbe field of Mr. Peters, to see if there were any bogs in it; and on tbeir return, about nine o’clock, tbey found a lot of bogs, belonging to D. M. James, in tbe lane of said Peters, and endeavored to drive them out; when one of them ran by tbe defendant, wbo thereupon threw an old axe at it, and killed it. Defendant then exclaimed, ‘I have killed one of Mr. James’s bogs, and I am sorry of it. Let us put it out of tbe way, as it is of no use to any body. I will tell Mr. Peters about it. Tbey are all white folks, and will fix it.’ Defendant then carried tbe bog to tbe swamp near by, and witness beard him tell Mr. Peters, a short time afterwards, that be bad accidentally killed tbe bog.”
    ’ “ Tbis being all tbe evidence, tbe court charged tbe jury, ex mero motu, that if tbey should believe, from tbe evidence, that tbe defendant killed tbe bog accidentally, and put it in tbe swamp for concealment, and not with tbe felonious intent to convert it to bis own use, or with intent to deprive tbe owner of bis property therein; still, if tbey should believe from tbe evidence, beyond a reasonable doubt, that be after-wards went to tbe place where be bad carried tbe bog, and there feloniously took and carried away tbe same, or any part thereof, be would be guilty as charged in tbe indictment. To tbis charge tbe defendant excepted.”
    W. M. MoMath, for tbe defendant,
    cited Bex v. Holloway, 1 Car. & Payne, 127; Bishop on Criminal Law, vol. 1, § 314.
    Jno. W. A. Sanford, Attorney-General, for tbe State.
   MANNING, J. —

Tbe act of February 20,1875, “to amend section 3706 of tbe Revised Code,” declares a person wbo steals any of tbe animals therein designated, among wbicb “bog” is specified, “or any part of an outstanding crop of corn or cotton,” or “ any personal property, other than that hereinbefore enumerated, exceeding twenty-five dollars in value,” guilty of grand larceny; and that on conviction be shall be punished accordingly. By tbe animals designated in tbis act are meant live beasts, not tbe carcases, or bodies of those that have been killed. Tbe stealing of one of these would not be grand larceny, unless it exceeded twenty-five dollars in value.

From tbe evidence in this cause, the jury might, perhaps, infer that defendant did not entertain the intent to appropriate to his own use the hog which is the cause of this prosecution, when he hilled it. The testimony of some of the witnesses is, that he, with some companions, was endeavoring to turn back and drive out of a lane, leading toward the crops they were cultivating, this and some other hogs, when this one, in dashing by, was killed by an axe, which defendant had in his hand, and threw at the hog. The body was then, some of the witnesses who were present say, dragged into the woods, or swamp, to be put out of sight, and left there; and defendant, shortly afterwards, told Mr. Peters, a white man, whose land he was cultivating, of the killing of the hog, and that he had done it accidentally. If the animal was not killed with the intent, then entertained, of stealing it, or some part of its carcase, but the act was in truth done without any such purpose, though recklessly, the subsequent cutting and taking away by the defendant of a part of the. body, in the course of the night following, or the next day, would not make him guilty of grand larceny, the whole hog being of the value of only six dollars. It is the live hog that he must intend to steal (which he may, of course, do by killing it and then taking it away), that constitutes grand larceny in such a case. But, if, after it is killed, no matter by whom, if not done by the defendant, or some one with whom he is conspiring, with intent to steal the body, or some part of it, a purpose is afterwards formed, and carried into effect, of taking and carrying away a part of the meat, the person guilty of this is not guilty of grand larceny, or of stealing a “ hog,” within the meaning of the statute. The act of trespass, and the felonious intent, do not so co-exist, as to make the offender guilty of that crime. — -See 1 Bishop on Or. Law,' (Bd ed.) § 366 L314], and cases cited in note. It ought, therefore, to have been referred to the jury, to determine whether or not defendant, when he killed the hog, did so with the intent of appropriating it, or any part of it, to his own use, or the use of some body else, not the owner, or of depriving the owner thereof. If he did, he would be guilty, according to the statute, of grand larceny; otherwise, he would not be.

The charge of the circuit judge was, consequently, erroneous; and the judgment must be reversed, and the cause remanded. Let the defendant remain in custody, until discharged by due course of law.  