
    The People v. Martínez.
    Appeal from the District Court of Humaca.0.
    No. 30.
    Decided December 15, 1903.
    Larceny — Larceny op the Use. — There is no distinction drawn, in American jurisprudence between the theft of property and the theft of the use of the property.
    Id. — Felonious Intent. — The defendant, according to the evidence, was convicted of the larceny of a horse from the farm of the owner, and presumably rode it to a neighboring town. Meld:
    
    That the facts constitute the crime of larceny, and that the felonious intent, in the absence of positive evidence to the contrary, was sufficiently proved by the circumstances of the case.
    The facts are as státed in the opinion.
    
      Mr. José G. Ramos, for appellant.
    . Mr. del Toro, Fiscal, for respondent.
   Mr. Justice MacLeart

rendered the following opinion of the court:

This is a plain case of horse stealing. The appellant was convicted of stealing a horse, and sentenced to the punishment of one year at hard labor in the penitentiary. Judgment was rendered by the District Court of Humac'ao on the 23rd of April, 1903. The crime 'is alleged to have been committed on the 5th of April of the same year, and the accusation sets forth:

‘ ‘ That tbe said Gabriel Martinez on the night of the 5th of April,. 1903, took, with criminal intent, from the farm situated in the ward of Collares, which forms 'a part of the district above mentioned, a horse of a light chestnut color, marked with the initials ‘ J. J. A., ’ belonging to Don Joaquin Alvarez, and which was found in the pound of animals, in the town of Juncos. This act is contrary to the law in such cases made and provided, and against the peace and dignity of The People of Porto Rico.”

The defendant was tried before the court, without a jury, and the facts proven at the trial do not appear in the record by bill of exceptions or otherwise, except as they may be inferred from the judgment itself. Ulpiano Valdés y Caja^, a lawyer of Humacao, appeared in the case in the District Court and tried the same, and after the conviction prepared the appeal which was duly allowed. In this court the appellant was represented by José C. Ramos, who appeared in person and filed a brief in behalf of the convict, and made an oral argument claiming that there was nothing to be found-in the record to show that the defendant had taken the horse with criminal intent, and from the circumstances, that the horse was found in the public pound, it would appear that he had ridden it a short distance only and abandoned it on the public highway, and that it was taken to the pound by the police.

Counsel further claims that because.the accused did not appropriate the property permanently to his own use, and abandoned it before he was arrested, that it sufficiently appears that the crime of theft was not complete, and he makes various citations from different writers, and from the courts of the United States. He also cites the Spanish law to show that such would not he deemed as a theft of the property, but only a theft of the use of the property, a distinction which is not drawn in our American courts.

The cases cited from Texas, Indiana and New Jersey, do not sufficiently bear upon the question before the court, as the statutes of those states are different from ours'. We are not referred to any decisions of courts of last resort in the States of California, Montana, or Idaho, or any other State which has adopted the California Code, from which we derived our criminal law.

Larceny is defined under our statutes as follows:

“Section 426. — Larceny is the felonious stealing, taking, carrying, leading or driving away the personal property of another.
“Section 427. — Larceny is divided into two degrees, the first of which is termed grand larceny; the second petit larceny.
“Section 428. — G-rand larceny is larceny committed in either of the following cases:
‘11. When the property taken is of the value of fifty dollars and upwards.
“2. When the property is taken from the person of another.
“3. When the property taken is a horse, mare, gelding, cow, .steer, bull, calf, mule, jack or jenny.”

The evidence shows that the accused took the horse from the farm of the owner, situated in the ward of Collares, and presumably rode him to the town of Juncos, and thus the •crime of larceny was- complete. If he had no intention of permanently appropriating the horse to his own use, he should have introduced some evidence to that effect. In the absence of positive evidence to the contrary, the felonious intent is ■.sufficiently proved by the circumstances of the case.

The defendant received a mild sentence, and has no reason to complain. Accordingly the judgment of the District Court will be affirmed.

Affirmed.

Chief Justice Quiñones and Justices Hernández, Pigueras and Sulzbacher concurred.  