
    M. Whitt v. Commonwealth.
    Larceny.
    A mare was forced out of the immediate possession of the owner and escaped to the commons, and was afterward taken away by intimidator. Held, that this was larceny and not robbery.
    APPEAL EROM MORGAN CIRCUIT COURT.
    September 28, 1866.
   Opinion oe the Court by

Judge Williams :

Although it might have been a robbery and not a larceny had the appellant and his confederates forced the mare alleged to have been stolen out of the immediate possession of her owner, especially under the intimidation, violence, and threatenings proven, yet as the mare during the disturbance had broken away from the person holding her and escaped to the commons where Whitt and his associates afterward captured her, we think a conviction for the larceny was entirely proper.

The taking, when it was really consummated, was not from the person or dwelling of the owner, nor by putting him or any one else in fear. Had the parties succeeded in their first attempt to get the mare it would clearly have been a robbery, but when they did succeed the mare was not in the immediate possession of any one, neither was any one then put in fear, nor violence or intimidation toward any one an attendant circumstance.

Wherefore, the judgment is affirmed, as we perceive no error in giving or refusing instructions.  