
    Morrisette v. The State.
    
      Indictment against Agent for Embezzlement of Property.
    
    1. Former jeopardy. — When a judgment of conviction in a criminal case has been arrested, set aside, or reversed on error or appeal, at the instance of the defendant, it can not be pleaded in bar of another prosecution for the same offense, such action on his part being regarded as an express waiver'of his constitutional privilege not to be placed in jeopardy a second time.
    2. Larceny or embezzlement; criminal intent as element of offense.- — • Since a criminal intent, or animus furandi, is a neces'sary element of the crime of larceny, a person can not be convicted of larceny (or embezzlement), if he takes the property of another under the honest belief that it is his own; but “ an impression that he had a claim or property in it,” is not the equivalent of an honest belief, and does not negative a criminal intent.
    
      3. Sentence to hard labor for costs; amendment of clerical misprision.— A sentence to hard labor for the non-payment of costs amounting to $53.95, at forty cents per day, should be for only one hundred and thirty-four days, the fraction over being excluded ; but a judgment in excess of this number of days, being a clerical misprision, will be corrected without a reversal.
    From the Circuit Court of Dallas.
    Tried before the lion. John Moore.
    The first count in the indictment in this case, on which alone a conviction was sought and had, charged that the defendant, “ being at the time the agent of C. J. Gayle, embezzled, or fraudulently converted to his own use, an ox, of the value of twenty-six dollars, the personal property of C. J. Gayle, which was at the time in his possession as said agent.” A second count charged embezzlement by a servant, and the third larceny of the ox. The defendant filed a special plea of former jeopardy, setting out the proceedings had against him under an indictment for the alleged larceny of the ox; which indictment was found in the City Court of Selma, and, having pleaded not guilty, a verdict of guilty was rendered against him; but a new trial was granted on his motion, and the case was afterwards transferred, by consent, to the Circuit Court. These facts were shown by the transcript of the proceedings in that case, as set out in the plea; and the record further shows that, on the day after the filing of this plea, a judgment of nolle-^ros. was entered in that case. The court sustained a demurrer to this special plea, and the cause was tried on issue joined on the plea of not guilty.
    On the trial, as the bill of exceptions shows, said C. J. Gayle testified, as a witness on the part of the State, that the defendant had been his tenant for several years, on a plantation in said county on which he had a good many cattle: “that he put all his said cattle in the possession of the defendant, under an agreement between them that he, defendant, was to manage, control, and take care of them for him, and, in consideration thereof, was to have the right to milk the milch cows, and to have the milk and butter so obtained for his own use, and was to have the use of such oxen as could be worked; ” also, that he afterwards missed an ox from his cattle, and, from information obtained from other persons, found it in the possession of another person, and reclaimed it. Another witness for the State, a merchant, testified that he bought the ox from the defendant, who brought it to his store and offered to sell it to him; and that he sold it to the person in whose possession it was afterwards found by said Gayle. The defendant made a statement to the jury in his 'own behalf, and said that, by the terms of the agreement between him and Gayle, he was to manage, control, and take care of the cattle, “ and, for his services, was to have one half of the cattle so turned over to ■ him by Gayle, and one half of the increase thereof during the time they were under his chargethat Gayle, as his landlord, was also to advance necessary supplies to him and his family, but failed to do so; that he notified Gayle, if the necessary supplies were not furnished, that he would sell some of the cattle, and afterwards sold the ox for the purpose of getting supplies for himself and family; that the ox was calved after he had taken charge of the cattle under his contract with Gayle, “ and that he was the owner of an undivided one-half of the ox so sold by him.” Gayle, being afterwards examined in rebuttal, denied these statements as to the terms of the contract between him and the defendant.
    The court charged the jury, among other things, “ that if they believed the defendant owned an undivided half interest in said ox, or honestly believed that he did own one half of said ox, they must acquit him ; or, if there was a reasonable doubt in their minds on either of said points, they must acquit the defendant.” The defendant afterwards asked the court, in writing, to charge the jury as follows: “If the jury believe, from the evidence, that the defendant had an impression that he had a claim or property in the ox at the time he sold him, then the jury can not convict.” The court refused this charge, and the defendant excepted to its refusal. The defendant asked another charge also, in these words: “ When the proof shows that one of two cows in the same herd belonged to the defendant, and he intended to take his own, but it is doubtful which he did take, the jury must acquit; that such a case would be trespass, and not embezzlement.” The court refused this charge, and the defendant excepted to its refusal.
    The judgment of the court, after sentencing the defendant to hard labor for the county for two years, as a punishment for his offense, adds: “ It is further considered by the court, that said Bland Morrisette be confined at additional hard labor for said county, for an additional term of one hundred and forty-five days, at the rate of forty cents per day, to pay $53.95, the costs of this prosecution.”
    G. A. Robbins, for the appellant,
    cited Berry v. The State, 71 Ala. 307; Randle v. 2he State, 49 Ala. 14; 1 Hale’s P. C. 502; Roscoe’s Grim. Ev. 644, 7th Amer. ed.; McMullen v. The State, 53 Ala. 531.
    T. N. McClellan, Attorney-General, for the State,
    cited Baysinger v. The State, at the present term ; and Kendall v. The State, 65 Ala. 492.
   SOMERYILLE, J.

Where a defendant has once been convicted under an indictment for a criminal offense, and this judgment of conviction has been set aside on motion for a new trial, or has been arrested, or reversed on appeal or writ of error, this is not regarded as a putting of the accused in legal jeopardy, so as to protect him against a second trial upon the same charge subsequently preferred against him. Such action, being taken at the instance of the accused, is an express waiver of his constitutional privilege not to be placed in jeopardy a second time for the same offense. — Kendall v. The State, 65 Ala. 492; Jeffries v. The State, 40 Ala. 381: Cooley’s Const. Lim. (5th Ed.), 401-402; Wharton’s Cr. Pl. & Pr. (8th Ed.), § 510. The plea of former jeopardy showed that a new trial had been granted, and the first judgment of conviction had been set aside on motion of the defendant. It was, for this reason, defective, if not for other reasons needless tó be mentioned, and the demurrer to it was properly sustained.

2. The crime of larceny can not be perpetrated without a criminal intent — an animus furandi, or intent to steal. Where one, therefore, takes the property of another, honestly believing that he has a legal right to it — or, in other words, under a bona fide claim of right — there can be no larceny, although the taking may constitute an inexcusable trespass. Morningstar v. The State, 55 Ala. 148; 2 Bish. Cr. Law, (7th Ed.) § 851; Roscoe’s Cr. Ev. (7th Ed.) 646*; Johnson v. The State, 73 Ala. 523. If the first charge requested by the defendant had' asserted this principle, it would have been a proper exposition of the law. It is not sufficient, however, for the taker to have a mere “impression” that he has a claim of right to property, in order to exempt him from the charge of larceny in the taking of it. This might amount to a vague notion, unaccompanied with honesty of conviction. The charge was erroneous in asserting this proposition, and its refusal was free from error.

There was no evidence tending to support the second charge requested by the defendant, and it was properly refused because abstract.

3. We discover, however, a clerical error in that part of the judgment which fixes the additional term of imprisonment to pay costs. It is apparent, from mathematical calculation, that this period should be one hundred and thirty-four days instead of one hundred and forty-five, as stated in the judgment. We omit from this a fraction of seven-eighths of a day additional, in view of the rule that the law takes no cognizance of mere fractional parts of a day, in cases of this character. This much is due to that strict construction of penal laws which is universally held to prevail, always working favorably to the liberty of the citizen. This error will be corrected in this court, at the cost of the appellant; and, as thus corrected, the judgment will be affirmed.

There is nothing in the exception taken to the only ruling of the court made on the admission of evidence, and we do not understand it to be insisted on by counsel.

Judgment affirmed.  