Opinion · Alabama Court Opinions
PRESWOOD v. STATE, 22 Ala. App. 628 (1928)
PRESWOOD v. STATE., 118 So. 768 (Ala. Ct. App. 1928)
- Type
- Opinion
- Court
- Alabama Court Opinions
- Jurisdiction
- Alabama
- Date
- 1928-11-20
- Topic
- general
PRESWOOD v. STATE, 22 Ala. App. 628 (1928) 118 So. 768 PRESWOOD v. STATE. 2 Div. 421.Court of Appeals of Alabama. November 20, 1928.
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UpLaw has not yet analyzed PRESWOOD v. STATE, 22 Ala. App. 628 (1928). The absence of a flag is not a finding that it is good law.
PRESWOOD v. STATE,22 Ala. App. 628(1928)
118 So. 768
PRESWOOD v. STATE.
2 Div. 421.
Court of Appeals of Alabama.
November 20, 1928.
Dock Preswood was convicted of grand larceny, and he appeals. Reversed and remanded.Page 629
Evidence merely tending to prove accused's possession and sale of a cow which had disappeared from a pasture from which cattle sometimes escaped will not support a conviction for larceny, not showing the corpus delicti. Jeffries v. State,7 Ala. App. 144,62 So. 270; James v. State,15 Ala. App. 569,74 So. 395. To constitute a crime, there must be an act and a criminal intent. 4 A. E. Enc. Law, 672; White v. State,44 Ala. 409; Roseberry v. State,50 Ala. 160; Simpson v. State,59 Ala. 1,31Am. Rep. 1; Hoover v. State,59 Ala. 57; Clisby v. State,17 Ala. App. 475,86 So. 140; McMullen v. State,53 Ala. 531; Crocheron v. State,86 Ala. 65,5 So. 649, 11 Am. St. Rep. 18; Beckham v. State,100 Ala. 15,14 So. 859; Fox v. State,205 Ala. 74,87 So. 623; State v. Powell,141 N.C. 780,53 S.E. 515, 6 L.R.A. (N.S.) 477.
Charlie C. McCall, Atty. Gen., for the state.
Brief did not reach the Reporter.
Under the above facts, the two cows were in the constructive possession of C.B. Nixon, and the fact that they were in a pasture not belonging to Nixon, but under the control of defendant, is no defense to this prosecution. The defendant had no interest in the cows, no right to the possession, and, when he sold the cows to Witt and Witt assumed control over them to the exclusion of the rights of the true owner, the act constituted larceny on the part of defendant, although Witt was entirely honest in all of his dealings. 36 Corpus Juris, p. 757, par. 79, p. 758, par. 80b.
The sale of the cows to Witt by the defendant was not the asportavit necessary to constitute a larceny, for, while the title to the cows in Nixon drew to him the possession, the defendant never had any title, and therefore he could not transfer title to Witt. If defendant had agreed to sell the cows to Witt, had received the money for them, and Witt had never taken the cows, the transaction would never have been larceny. The larceny was complete only when Witt, acting under the agreement with defendant, actually took the cows. 36 Corpus Juris, 797, par. 213 (b); Cox v. State,2 Ala. App. 143,56 So. 775.
The foregoing being the law and under the facts in this case, it follows that two separate larcenies were committed, and, both being joined in the same count of the indictment, a conviction cannot be permitted to stand. Under the statute (Code, § 4546), offenses of the same character, and subject to the same punishment, may be joined in the same count in the alternative, but, when an indictment contains but a single count, charging a single offense, and the evidence in support of it shows the commission of two separate and distinct offenses, there is a fatal variance between the probata and the allagata which preludes a conviction. The indictment is perfect in its charge, and is not subject to demurrer, nor does it present a case for an election. The reasons are fully discussed in the case of Thomas v. State,111 Ala. 51,20 So. 617. Upon this theory defendant was entitled to the affirmative charge.
The foregoing being the law of this case, it becomes unnecessary to pass upon the other questions presented. The judgment is reversed, and the cause is remanded.
Reversed and remanded.