Case - Thompson v. State, 94 Ala. 535, 10 So, 520, 1891.
|Indictment for larceny from the person. The opinion states the material facts.
Charge No.1, asked and refused, was in these words: "The jury must believe, beyond a
reasonable doubt, that the defendant got the money into his hand, or actual possession of
it, before they can convict him oflarceny."
Walker, J. The witness for the State testified that he held out his open hand with two
silver dollars therein, showing the money to the defendant; that the defendant struck
witness' hand, and the money was either knocked out of his hand or was taken by the
defendant, he could not tell positively which. It was after twelve o'clock at night, and the
witness did not see the money, either in defendant's possession or on the ground. The
court charged the jury: "If the jury find from the evidence that the defendant, with a
felonious intent, grabbed for the money, but did not get it, but only knocked it from the
owner's hand with a felonious intent, this would be a sufficient carrying away of the
money, although defendant never got possession at any time of said money." This charge
was erroneous. To constitute larceny, there must be a felonious taking and carrying away
of personal property. There must be such a caption that the accused acquires dominion
over the property, followed by such an asportation or carrying away as to supersede the
possession of the owner for an appreciable period of time. Though the owner's
possession is disturbed, yet the offense is not complete if the accused fails to acquire such
dominion over the property as to enable him to take actual custody or control. It is not
enough that the money was knocked out of the owner's hand, if it fell to the ground and
the defendant never got possession of it. The defendant was not guilty of larceny, if he
did not get the money under his control. If the attempt merely caused the money to fall
from the owner's hand to the ground, and the defendant ran off without getting it, the
larceny was not consummated, as the dominion of the trespasser was not complete.
Charge No. 1 was a proper statement of the law as applicable to the evidence above
referred to, and it should have been given.
Reversed and remanded.