[Bryant v. The State.]

consideration of the jury, and the jury should not allow the evidence of such possession of said property any weight against the defendant in reaching a verdict in the case."

LESLIE B. SHELDON, for appellant.-1. The indictment in this case is not good, and does not charge the appellant with any offense. The indictment is based on section 3725 of the Code of 1886, which is but an affirmation of the common law. The carrying from one county to another, to be larceny in the latter county, must have been done under such circumstances as would have made the appellant guilty of larceny had the original taking of the property been in the latter county.-Smith v. State, 55 Ala. 59; Crow v. State, 18 Ala. 545; 1 Bish. Crim. Proceedure, § 59; Johnson v. State, 47 Miss. 671.

2. The 16th and 18th charges should have been given. They each asserted correct propositions of law.-Newsom v. State, 107 Ala. 133.

WILLIAM C. FITTS, Attorney-General, for the State.The action of the city court in sustaining the objection interposed by the State to the question put to Benny Robinson, as to where the defendant said she got the ring, was proper and free from error.-Williams v. State, 105 Ala. 96; Oliver v. State, 17 Ala. 587; Chamblee v. State, 78 Ala. 466; Jordan v. State, 81 Ala. 20; Johnson v. State, 94 Ala. 35.

Charge 16 was properly refused.-Grant v. State, 97 Ala. 35; Goldsmith v. State, 105 Ala. 9; Scott v. State, 105 Ala. 57; Webb v. State, 106 Ala. 52; Johnson v. State, 105 Ala. 113; Yarbrough v. State, 105 Ala. 43.

HARALSON, J.-At common law, larceny is considsidered as committed in every county or jurisdiction into which the goods may be carried by the thief. "The legal possession of them still remains in the true owner, and every moment's continuance of the trespass and felony amounts to a new caption and asportation."-2 Russsell on Crimes, 283. Consequently, it has been held in this State, that when goods are stolen in one county and carried by the thief into another county, or he causes them to be so carried, and he there exercises dominion over them, this constitutes larceny in the lat

[Bryant v. The State.]

ter county, and he may be there prosecuted and convicted.-Whizenant v. The State, 71 Ala. 383; Kidd v. The State, 83 Ala. 58. Section 3723 of the Criminal Code of 1886, which gives jurisdiction in such cases in either county, is an affirmation, and not an enlargement of the common law rule on the subject.-Smith v. The State, 55 Ala. 59.

The indictment in this case, following form 51 of the Criminal Code of 1886, charges the larceny as having occurred in Baldwin county. It was not lacking in any necessary averment of a larceny in that county. It then charges defendant, with having brought the property stolen into the county of Mobile. The indictment might have charged the larceny as having been committed in Mobile, omitting all reference to the commission of the crime in Baldwin, and on proof of the facts averred in this indictment, the defendant might have been convicted in Mobile, where, as alleged, she carried the property. There was no error in overruling the demurrer to the indictment.-Rapalje on Larceny, § 124; Jones v. The State, 53 Ind. 235.

The evidence tended to show that the defendant stole the ring, its diamonds and setting in Baldwin county, as charged, and carried the same into Mobile county; that defendant was found in possession of a ring in the latter county which was brass, but with a gold setting, from which the central gem had been removed, and a piece of glass been substituted therefor, with five diamonds arranged around it so as to form a cluster, with one of the diamonds in the setting missing; that the ring stolen had seven gems, a central and larger one than the six others that surrounded it, and that the brass portion of the ring so found in her possession was not the property of Mrs. Cirlot, the party from whom it was alleged the ring had been stolen,but that the setting in said ring and the diamonds were her property. The solicitor, after the evidence for the State had closed, offered in evidence the ring that had been found in possession of defendant in Mobile, and which she delivered up, and it was admitted against a general objection of the defendant. In this there was no error. The facts made it evidence of crime, the weight of which was for the jury.-Thornton v. The State,

[Bryant v. The State.]

113 Ala. 43; Watkins v. The State, 89 Ala. 83; Young v. The State, 68 Ala. 569.

The testimony of defendant tended to show that about three weeks before her arrest, one Robert Singleton, who had since died, loaned her the ring which she had on at the time she was arrested; that she did not deny having the ring when arrested, and it was taken from her, but that she turned it over to Mr. Cirlot and told him at the time that it was not her ring, but one that Robert Singleton had loaned her, and she made the same statement to the officers having her in charge when they were taking her to the guard house. The chief of police testified to this statement. The evidence further tended to show that Robert Singleton had loaned defendant the ring one day when he met her on the street; that he told her that it was his wife's ring; that she had known him all her life, and he had never visited her at her house, and had never been to see her in Baldwin county. The defendant proved by Benny Robinson that he had seen defendant about three weeks before her arrest with a ring that looked like the one offered in evidence on the trial, and proposed to prove by said witness what, at the time, the defendant said she was doing with the ring and where she got it,-whose property she said it was, and if she did not say to the witness, that the ring was loaned to her by a man named Robert Singleton. On objections raised by the solicitor, the court refused to allow the witness to answer either of the questions propounded to elicit this evidence. In this the court erred. It is inferable that the ring inquired about, as to which defendant's declarations were made to the witness, was the ring she was found in possession of, and for which she was indicted for stealing; and these declarations, made while in the possession of the property, at the time and under the circumstances shown, were admissible, as explanatory of her possession.-Smith v. The State, 103 Ala. 40, and authorities there cited.

The indictment, as will be observed, in its three counts, containing the necessary averments for larceny, charges, (1), that the defendant stole in Baldwin county and carried into Mobile, a diamond ring of the value of $75; (2), that she stole in Baldwin a gold ring with a diamond setting, and brought such diamond setting, of the value of $50, into the county of Mobile; and (3), that she

[Bryant v. The State.]

stole in Baldwin a gold ring with diamond setting, of the value of $75, and brought the diamonds, which were in said setting, of the value of $35 into Mobile county. In other words, the diamond ring, diamond setting from such ring, and the diamonds themselves, which were in, and taken from the setting of such ring, are the subjects of the larceny separately charged in the respective counts. The indictment was properly framed to meet the varying forms the evidence might assume touching the property which, after it was stolen, was brought as alleged into Mobile county; and in its different shapes, the evidence tended to support one or the other or all of these charges. Having due regard to the different counts, each charging a larceny, many of the charges asked appear to be improper, and were rightly refused. These, on account of their great number, will not be separately discussed and passed on, but we confine ourselves to such as appear to be proper to notice.

The 14th charge asked by defendant and refused, asserts a correct legal principle, and should have been. given.-Prater v. The State, 107 Ala. 27; Howard v. The State, 108 Ala. 572, 577; 3 Greenl. Ev., § 29.

The 16th charge requested by defendant is a copy of a charge we approved in Newsom v. The State, 107 Ala. 133, 138; Goldsmith's Case, 105 Ala. 9.

Charge 18 appears to be free from error.—Newsom's Case, supra.

Charge 17 was condemned in Horn v. The State, 102 Ala. 145.

Charge 19 is an extract from the opinion of STONE, C. J., in Johnson v. The State, 102 Ala. 18, 19, and was a part of an argument employed by the learned judge for the purpose in hand. The charge is subject to the vice of being argumentative.

Charge 20 was properly refused. The unexplained possession of property does not raise the presumption that the property was stolen. There must be other evidence of the corpus delicti; and when this has been shown, the actual unexplained possession of the recently stolen goods, is a fact from which the jury may infer the guilt of defendant. The declarations of a defendant when found in possession of the stolen property, explanatory of his possession, are for the consideration of the jury together with all the other evidence in determining the

[Busby v. The State.]

107

question of his guilt or innocence.-Orr v. The State, Ala. 35; Smith v. The State, 103 Ala. 40; Underwood v. The State, 72 Ala. 220.

The other refused charges not considered were properly refused.

Reversed and remanded.

Busby v. The State.

Indictment for Larceny.

1. Larceny; constituents of offense; instructions to the jury.-Where on a trial for larceny the evidence shows that the defendant, without the knowledge or consent of the owner, with whom he had been playing, took some shirt buttons from the latter's pocket, and as he was going away from the defendant said that he would leave the buttons at a certain place where the owner could get them by paying a stipulated sum, a charge is erroneous and is properly refused as being calculated to mislead and confuse the jury, which instructs the jury, that "While larceny includes a trespass, in that it involves felonious intent and fraud or secretiveness in effecting it; and the knowledge of another's ownership and the intent to deprive him of it are not equivalent of these elements."

APPEAL from the City Court of Mobile.

Tried before the Hon. O. J. SEMMES.

The appellant was indicted, tried and convicted for the offense of grand larceny.

On the trial of the cause the evidence showed that while at a shop of one Vincent Peres, the defendant, Willie Busby, caught hold of said Peres and took from his pocket three stud buttons, and that the same were taken from said Peres without his consent and without his knowledge. There was evidence introduced tending to show that the taking of said buttons was open and in the presence of witnesses, and that said Peres and the defendant were playing with each other a few minutes before the taking; and immediately after the time the buttons were taken, and before the defendant moved away, he said to Peres "that he would leave the buttons at his, Busby's wife's house, and he, Peres, could get them by leaving twenty-five cents with her, which he owed the defendant."