
    The State v. Osborne.
    Criminal law: larceny: proop op owner’s non-consent. The rule requiring in a prosecution for larceny the introduction of the owner of the property stolen, in order to prove his non-consent to the taking, does not apply in cases where the property is stolen from a bailee or another holding the possession thereof, or where it is impossible to produce the evidence of the owner, as in case of death or the like. In such cases the evidence of the bailee or person holding possession is sufficient, and in case the owner cannot be produced, the fact of his non-consent may be shown by proper secondary evidence.
    
      Appeal from Delaware District Court.
    
    Saturday, Oct. 9.
    Defendant was indicted and convicted of stealing three head of cattle. Upon the trial his counsel asked the court to instruct the jury, that, in the words of the record, “ it was necessary for the prosecution to introduce the owner of the property to prove non-consent, and, having failed to do this, defendant should be acquitted.” This instruction was refused. After verdict a motion for a new trial was made, based upon the ground that the verdict is contrary to the law and evidence, and that the court erred in refusing to give the above instruction. Motion overruled, and defendant sentenced to two years and six months’ confinement in the penitentiary. Defendant appeals.
    
      House dk Heath, for the appellant.
    
      H. O’ Cornier, Attorney-General, for the State.
   Beck, J.

The point raised by defendant’s counsel is, that it was necessary, in order to authorize conviction, under the rule requiring the best evidence the nature of the case admits, to prove by the owner of the property non-consent to the taking by defendant. The instruction Ivas properly refused. The rule, as laid down in the authority cited by defendant’s counsel (Oowen and Hill’s notes; Philips Ev. 3d ed. part 1, p. 4:11), requires the introduction of the owner of the property stolen to prove his non-consent to the taking, except in eases where property is stolen from a bailee or another holding the possession thereof, or where it is impossible to produce the evidence of the owner, as in case of death, etc. In all such cases the evidence of others, as bailees, etc., from whose possession the property was stolen, is sufficient, and in case the owner cannot be produced, the fact may be shown by proper secondary evidence. Without questioning the soundness of this rule, we are of opinion that the case is not brought within its terms, or rather falls within its exceptions. The record does not contain all the evidence — the bill of exceptions professing to give only the substance of what is pronounced to be the material parts thereof. It, however, discloses the fact that the larceny of the property was proved by the son of the owner who was charged with its care and control. The continued ill health of the owner (a woman) at the time of the larceny and up to the trial is also shown. We are unable to say that these facts did not constitute proper foundation, under the rule, for the admission of the secondary class of evidence.

It is claimed that the verdict is not supported by the evidence. As above pointed out, all the evidence is not embodied in the record; we could not therefore question the correctness of the verdict even though the evidence appeared insufficient. But, on the contrary, what is found in the record satisfies us that the defendant was properly convicted.

Affirmed.  