
    Bailey v. The State.
    
      Indictment for Larceny of Money paid by Mistake.
    
    1. Larceny of money paid by mistake; wlml necessary to constitute. — Whore A. owed B. two dollars, and, in paying him, made a mistake and gave him a one dollar bill, and a ten dollar bill, thinking the latter was a one dollar bill, and B. appropriated the money so overpaid, after discovering the mistake made by A., — held, to constitute larceny in B., he must have known, at the very time ho received the money, that he was receiving niore than was intended for him, and must then have intended to convert the same to his own use — this would be a fraud amounting to larceny.
    2, Same; what amounts to only a civil tort. — If the testimony fails to show tho intent to convert the money at the time of overpayment, beyond a reasonable doubt, thon he is guilty only of a civil tort — trover and conversion.
    Appeal from the Circuit Court of Tallapoosa.
    Tried before the Hon. Jas. E. Cobb.
    Defendant, William Bailey, was indicted at the spring term, 1877, of said court, for larceny, the indictment being in the usual form.
    The State introduced as a witness the prosecutor, one G. Puller, who testified that he was indebted to defendant in the sum of two dollars, and upon going to pay said debt, and intending to pay only the two dollars, he paid defendant two 'bills; that the room where he paid defendant was rather dark, it being cloudy without, and he could not see distinctly, and he made a mistake and gave the defendant a ten dollar instead of a one dollar bill; that next day witness missed a ten dollar bill which he remembered having had before the payment to defendant, so, he went and asked defendant if he did not make a mistake and pay him a ten dollar bill instead of a one dollar bill; and the defendant denied that he was so paid. One Jesse Parmer, another witness for the State, • swore that on a certain Sunday before the indictment, he was with defendant and defendant remarked that.“he had a secret that be would tell witness,” and asked witness “if be noticed Fuller when be paid bim (defendant), some money on tbo day before,” to wbicb witness replied that be saw no mistake; defendant then said that Fuller bad made a mistake, and bad paid bim a ten dollar bill instead of a one dollar bill.' Witness tlien asked defendant “what be intended to do about it ? ” Defendant replied that “Fuller bad so much money he would never detect the loss, but if be missed the ten dollar bill, be would make it all right with bim.” Afterwards, defendant told witness be bad spent the ten dollar bill. This being all the evidence, the defendant’s counsel asked ,the court, in writing, to charge the jury that “if they believe from the evidence that Fuller, in paying out the money to defendant, made a mistake and paid bim a ten dollar bill, then, before the defendant can be convicted of petit larceny, the evidence must satisfy the jury, beyond a reasonable doubt, that, at the time the mistake_wa.s made, the defendant kneAv of the mistake, and with that knowledge received the ten dollar bill, and that any subsequent appropriation of tbo money by defendant, without a knowledge of the mistake at the time it was made, will not constitute the offense of petit larceny;”'' '"The court refused to give the charge, and defendant’s counsel excepted.
    The defendant now appeals, upon the record, to this court.
    Oliver & Garrett, for appellant.
    1. The charge being for larceny, necessarily involves a trespass, accompanied with an intent to deprive the owner of bis ownership in the property. Bisb. Cr. Law, vol. 2, p. 675 and notes.
    2. In order to constitute the offense of larceny, the taking, and the intent animo furandi must coexist in point of time. It is not sufficient that the intent to convert it to bis own use by tbo defendant was entertained at the time of the conversion, but as stated in Wilson v. People, 39 New York, 459, “In larceny, the intent to steal must exist at the time of taking the property; it is not enough that the prisoner have such intent at the time of converting it to bis own use. See, also, ,Stale v. Goombs, 55 Maine, 477; State v. Brown, 25 Iowa, 561.
    8. The charge asked by the defendant and refused by the court, enunciates the law as stated in Wilson v. People, supra, and requires the court to instruct the jury that, before they can find the defendant guilty, they must believe from the evidence, beyond a reasonable doubt, that defendant, at the time be received the money, discovered the mistake, and that discovering the mistake at that time, be afterwards, with that knowledge, appropriated the money to bis own use. Predicated as this charge is, upon the proposition of law, that the taking and intent must coexist, and that it is not sufficient that defendant has that intent at the time of the appropriation of the money to his own use, the refusal to give the charge was error. 1
    4. It was necessary that defendant should have discovered the mistake, made in the payment of the money to him, at the time the mistake was made, before any such intent could be formed by defendant as would constitute larceny, by any after appropriation of the money to his own use. Whatever may be the moral turpitude connected with defendant’s conduct, it evidently falls short of larceny.
    John W. A. Sanford, Attorney-General, contra.
    
   STONE, J.

Larceny is the felonious taking and carrying away of the personal goods of another. To constitute larceny under the undisputed facts of' this case, the defendant must have known, at_the very time he received the m,o.ney, that he was receiving too much, and more than Was intended for him, and must then have intended to * convert the money to his own use. This would constitute the taking such a fraud, as would amount to larceny. — Rountree v. The State, 58 Ala. 381.

On the other hand, if the testimony, and circumstances fail to establish the facts and intent as above supposed, with such full measure of proof as to leave ip. the minds of the jury no reasonable doubt of the defendant’s guilty knowledge and intent, at the time he received the money, then .he is guilty of no crime, but only of a civil tort, known as trover and conversion: — State v. Hawkins, 8 Por. 461; State v. Ware, 10 Ala. 814; Spivey v. State, 26 Ala. 90; Wilson v. The State, 1 Por. 118.

The Circuit Court erred in the charge given, and in the refusal to charge as asked. Let the judgment lie reversed, and the cause remanded. The defendant will remain in custody until discharged by due course of law.  