
    Devine v. State.
    [96 South. 696.
    No. 23270.]
    Labceky. One aiding and assisting thief in making away with proyerty after knowledge that it is stolen guilty of ‘‘larceny.’’
    
    Larceny is a continuous offense, and is being committed every moment of the time during which the thief deprives the owner of the stolen property of its possession; consequently a person who aids and assists the thief in making away with property after and knowing that it has been stolen is guilty of “larceny.”
    Appeal from circuit court of Jones county.
    Hon. R. S. Hall, Judge.
    Roy Devine was convicted of grand larceny, and he appeals.
    Affirmed.
    
      W. B. Collins, for appellant.
    We presume that no one will claim that under the common law a person could be tried and convicted as principal when he was only an accessory after the fact. And we make this argument, admitting for the sake of argument that the defendant was not entirely clear of wrongdoing in the matter, after the car was stolen. If, under the theory of defendant, defendant, if guilty of anything, was only gnilty as an accessory after the fact; he could not be convicted as a principal, unless the statute makes that the law. We submit that section 751, Hemingway’s Code, section 1026, Code of 1906, an accessory before the fact can be tried and convicted as a principal, but this could not be done under the common law. Under the ocmmon law an accessory after the fact is guilty of an independent crime from the principal and could not be tried as principal. This is true even under section 752 of Hemingway’s Code and section 1027, Code of 1906. Then; under the téstimony of all the witnesses in this case, except Jesse Carter, and we submit there is not enough in that to make him guilty of an accessory before the fact, defendant, if guilty of anything, was only guilty as an accessory after the fact. The car was stolen, taken and carried away before Eoy Devine ever saw it and all the witnesses say that. There is not one particle of testimony of any other person than Jesse Carter that Eoy Devine, even counseled or advised in the theft, and he admits that he had ofttimes said Eoy knew nothing about it until after the stealing.
    On page 8 of the record the state was given this instruction: “The court instructs the jury for the state that if you believed from the evidence in this case beyond a reasonable doubt, that Eoy Devine, in district No. 2, Jones county, Mississippi, got into the car in question at a time when he knew that the said car was being unlawfully and feloniously taken, stolen and carried away in said district of Jones county, Mississippi, for the purpose of aiding and assisting in such taking away if any there was, then under the law the defendant is guilty as charged and this is true even though you may further believe that the defendant was not present when the car was first started and knew nothing of it being started away.”
    This instruction tells the jury that the defendant can be convicted of larceny, if he was only guilty as an accessory after the fact. This is not the law. All the testimony shows that defendant got in the car after it had been moved by Jesse Carter and Stoggie Wansley from the Y. M. C- A. and run to Devine’s home, several blocks away and this instruction tells the jury that if they believe that when he got in this car at his home, after' the car had already been stolen and carried away, with the purpose of assisting in carrying it away, further, then he is guilty of larceny. That is not the law. No authority, we venture to say can be found upholding that as the law. On the other hand the converse of the instruction is the law and the only instruction correctly announcing the lawr, was asked by the defense and is found on page 13; there are two of them: “The court instructs the jury for the defendant that unless you believe from the evidence in this case beyond a reasonable doubt and to a moral certainty that the defendant, Roy Devine, aided or assisted in the original taking of the car in question from the place where its owner left it, then it will be your sworn duty to find the defendant not guilty, even though you may believe he later learned that Jesse Carter and Stoggie Wansley had stolen the car and that defendant aided or assisted them in escaping with the car.” This instruction was refused by the court, and the following: “You are further instructed for the defendant that if you believe from the evidence that Jesse Carter and Stoggie Wansley stole the care from where it had been left by the owner, without the aid or assistance of the defendant and carried it to the home of defendant and induced him to go with them to Gulfport, then you must, under your oaths, find the defendant not guilty, even though you may believe that the defendant was assisting them to escape with full knowledge that the car had been stolen; and if you have a reasonable doubt that this is the way the theft happened, then it is your sworn duty to find the defendant not guilty.” This instruction was a.lso refused. Defendant was given no instruction embracing this theory of the case, but the state was given the converse, which is not the law.
    It is our contention, and we think all the law bears us out, that the theft was completed, when the car was moved from the place where the owner left it. If Jesse Carter and Stoggie Wansley had been apprehended on their way from the Y. M. C. A. to Devine’s home and the car recovered, no one would argue that they could not be tried and convicted of larceny. The larceny was complete. The crime of larceny was just as surely committed, as if the car had been carried to New York, and just as surely committed, as when they were apprehended near Gulfport. No one would say that they would have to go into Gulfport, nor to Pascagoula, nor to Mobile and sell the car, before they could be convicted. If the crime was not complete when they went around and stopped at Devine’s home, where was the crime completed?
    25 Cyc., page 19, note 1 gives several illustrations and cites Rex v. Pitman, 2 0. & P. 432, 12 E. G. L. 653: “Thus where a thief snatched an earring from a lady’s ear but it caught in the curls of her hair, there was sufficient taking and carrying away to constitute larceny.’’ 1 Leach 0. C. 320. Also, “and where a thief went to an inn, intending to steal a horse, directed the hostler to bring out his horse pointing to the one he intended to steal, and the hostler accordingly led out the horse for the thief to mount, this was sufficient taking to constitute larceny.” Further; 25 Cyc. 22.B. “To constitute larceny there must be trespass in the original taking.” If defendant knew nothing about the car having been stolen until he got into the car at his home, how could there be any trespass on his part in‘the original taking? So this being under the law a complete larceny of the car at the time defendant got into it at his home, whatever connection defendant might have had with it from that time on would not make the act of larceny any more complete. We wish to call the court’s attention to the case of Boyce v. State (Texas), 5 Am. St. Rep. 908; 2 Russell on Crimes (9th Am. Ed.) 152; 25 Cyc. 59 (c) see also d; Alexander v. State, 601 Miss. 953.
    With absolutely no doubt about prejudicial error in two of the three instructions granted the state, and the refusal of the court to correctly announce the whole law in any instruction asked by the defense, we submit the case ought to be reversed.
    
      8. 0. Broom, special assistant attorney-general, for the state.
    The theory of the defense is that the appellant herein was an accessory after the fact; that he had no part in stealing the car and that he did not enter into a conspiracy or plan with Carter to steal an automobile. They practically conceded that the appellant had knowledge that the car was stolen property and that he might have been convicted of receiving stolen property or as an accessory after the fact; but the trouble is the defense bases its argument on false premises and necessarily arrivés at an erroneous conclusion. He was indicted as a principal.
    Section 751 of Hemingway’s Code, section 1026, Code of 1906, is as follows: “Every person who shall be an accessory to any felony, before the fact, shall ,be deemed and considered principal, and shall be indicted and punished as such; and this whether the principal had been previously convicted or not.”
    In the case of Unger v. State, 42 Miss. 642, it is said that, “an accessory before the fact is one who is not present at the time of the commission of the offense, but counsels, procures or commands the commission of the crime.” And again in the case of Dean v. State, 85 Miss. 40, 37 So. 501, it is said: “One who aids, assists and encourages a murder is a principal and not an accessory and his guilt in nowise depends upon the guilt or innocence, the conviction or acquittal of any other alleged participant in the crime.” And again in the case of Kittrell v. State, 89 Miss. 666, 42 So. 609, it is said: “One who aids ánd abets in an offense is indictable as a principal.” •
    dn the case of Osborn v. State, 88 Miss. 410, 55 So. 52, it is said: Section 1026, Code of 1906, makes every accessory to a felony before the fact a principal and punishable as such, whether the principal has been previously convicted or not, yet where several are jointly indicted, if one or more of them were accessories before the fact, the party who actually committed the felony must be proved guilty before evidence is' admissible of the guilt of the accessories before the fact, though they are charged as principals.”
    Our view of the law in this case would be that when Jesse Carter and the appellant herein planned and agreed to steal an automobile and to take it some place and sell it, that up to that point they were probably guilty of some sort of criminal conspiracy; that when these plans were executed and when the appellant herein contributed in some way to the execution of this plan, the crime then changed from one of conspiracy to larceny and the appellant became guilty as a principal, because he was an accessory before the fact.
   Smith, C. J.,

delivered the. opinion of the court.

This is an appeal from a conviction of grand larceny. The evidence for the state is to the effect, that the appellant entered into a conspiracy with Jesse Carter to steal an automobile for the purpose of selling it and appropriating the proceeds. Jesse was to steal the car to be selected by him and take it to Devine’s residence, where Devine would join him, and together they would dispose of. the car. On the occasion in question Devine, Carter, and Stoggie Wansley, who had joined the conspiracy at Carter’s request, met at the railroad station in the town of Ellisville, and Devine gave Carter a pocketknife with which to turn an automobile switch, and a few minutes thereafter Carter and Wansley stole a Ford Sedan parked near by and drove it to Devine’s residence, where he got into1 the car with the other two, and together they drove the car to Gulfport, where they were arrested.

Devine claims not to have known that the car was stolen, but that he joined Carter and Wansley on their request to go with them for a ride as far as Gulfport and return.

Only one of the appellant’s assignments of error requires special notice, and that is that the court below erred in granting the state the following instruction:

“The court instructs the jury for the state that if you believe from the evidence in the case beyond a reasonable doubt that Eoy Devine, in district No. 2, Jones county, Miss., got into the car in question at a time when he knew that the said car was being unlawfully and feloniously taken, stolen, and carried away in said district of Jones county, Miss., for the purpose of aiding and assisting in such taking away, if any there was, then under the law the defendant is guilty as charged, and this is true even though you may further believe that the defendant was not present when the car was first started and knew nothing of it being started away.”

The contention of the appellant is that the larceny was complete when Carter and his companion removed the car from the place where it was parked, and that if he thereafter rendered them any assistance in making away with the car he did not thereby become guilty of larceny, but became only an accessory after the fact. This contention is without merit for the reason that larceny is a continuous offense and is being committed every moment of the time during which the thief deprives the owner of the stolen property of its possession.

“The legal possession” of the goods stolen continues in the “true owner; and every moment’s continuance of the trespass and felony amounts” in legal consideration to a “new caption and asportation.” Watson v. State, 36 Miss. 593; Johnson v. State, 47 Miss. 671; 2 Brill’s Cyclopedia Crim. Law, section 758.

If the appellant aided and assisted Carter and Wansley in mailing away with the car after, and knowing that it had been stolen he is guilty of larceny.

Affirmed.  