Johns. 294, only held that the of larceny in appropriating it.

Wilson v. State.

bona fide finder of a lost article was not guilty None of these cases touch the present case.

'If we turn to the English cases we find several in which prisoners have been held guilty of larceny who have taken property, not lucri causa. Reg. v. Jones, ut supra, was a case where the prisoner, having received several letters belonging to and addressed to B., destroyed one of them, in order to suppress inquiries respecting the prisoner's character. This was held larceny; and POLLOCK, J., said: 'Will it be contended that picking a man's pocket, not to make yourself rich, but to make him poor, would not be a larceny?' Rex v. Cabbage, ut supra, was the case, often cited, where a prisoner was held guilty of larceny, who had taken a horse of the prosecutor and had backed it into a coal pit, and thus had killed it, with no motive of personal gain; a case I may say, much like the present, except that the prisoner had more excuse for his act. In Rex v. Wynn, 1 Denison, 365, the prisoner, a letter-sorter in the post-office, took a letter and dropped it into the water-closet, with intent to destroy it, and to deprive the post-office authorities of their letter. There was no personal gain to the prisoner; yet he was held guilty of larceny. See also Reg. v. Hollaway, above referred to.

In Mr. Wharton's Criminal Law, he cites, apparently to sustain a contrary doctrine, Commonwealth v. Leach, 1 Mass. 59. But the case decides nothing on this point. It only holds that an indictment for poisoning a cow is within the jurisdiction of a Court of Sessions. No question as to the taking of personal property was in any way involved.

'Mr. Wharton also expresses the opinion that American cases sustain the doctrine lucri causa. An examination shows this opinion to be incorrect. He cites in support of this view State v. Council, 1 Overton (Tenn.), 305. This held that stabbing a horse was indictable. It does not appear that there was any taking; so the question of larceny was not involved. He also cites Resp. v. Teischer, 1 Dall. 335, a case which has nothing to do with larceny, and which only holds that the malicious killing of a horse is indictable. No suggestion is made in that case that the horse was ever taken from the owner; and nothing is said as to larceny. He also cites State v. Hawkins, 8 Port. (17 Ala.), 461, which held that taking a slave, in order to set her free, was not larceny. How the question of larceny may apply to the case of a slave, we need not discuss. It is enough to say that the doctrine, for which that case is cited by Mr. Wharton, is overruled in the very State in which it was decided, in Williams v. State, 52 Ala. 411, hereafter referred to; and that in that last case the court did not deem it necessary even to comment on State v. Hawkins. Mr. Wharton also cites McDaniel v. State, 16 Miss. 401. That was an indictment for murder. In the course of opinion, a definition of larceny is incidentally given; but there was no attempt, or occasion, to define the crime accurately. The doctrine of lucri causa is overruled in Mississippi in the case, hereafter referred to, of Hamilton v. State, 35 Miss. 214. These are the only cases that are referred to, for the purpose of showing that decisions in this country sustain the doctrine of lucri causa. It will be seen that only one supports the doctrine; and that one has been overruled in the State where it was made.

Wilson v. State.

“On the contrary, Hamilton v. State, ut supra, held that the taking away of a slave, in order to free him, was larceny. Here there could be no gain to the taker; and therefore no act done lucri causa; only an intent to deprive the owner of his property. Of course this case overrules any remark to the contrary made in McDaniel v. State, ut supra.

"Dignowitty v. State, 17 Tex. 521, quite similar to the present, held that the taking of property with intent to destroy it was larceny.

"In Williams v. State, ut supra, which is a case closely in point, the court say: 'No benefit to the guilty agent may be sought, but only injury to the owner.' They hold that the intent need not be gain to the taker; and therefore, in fact, they overrule State v. Hawkins, ut supra, if that case held otherwise.

"The same doctrine is distinctly decided in People v. Juarez, 28 Cal. 380; in State v. Ryan, 12 Nev. 401; in Keely v. State, 14 Ind. 36; in State v. Davis, 38 N. J. Law, 176; and in State v. Brown, 3 Strobh. 508; in which last case the court characterized the doctrine of State v. Hawkins, ut supra, as a very novel and startling proposition.' We have seen that it is a proposition already overruled in the State where it was advanced.

"In United States v. Durkee, McAllister, 196, it was held, that where members of a vigilance committee seized guns as weapons of defense, this was not larceny. But that act was done neither with intent to injure the owner, nor for personal gain. The case decides nothing on the point in discussion. And the courts of the State, where it was decided, have just been shown to have overruled the doctrine of lucri causa. People v. Juarez, ut supra.

"It may then, I think, be said to be established by the great weight of American authorities, with no real exception, that to constitute larceny it is not necessary that the intent of the taker should be to appropriate the property to his use; that where the other elements exist, it is enough if the intent be to deprive the owner permanently of his property.

"If in the absence of decisions in our own State, we are not to be guided by these text-books and by these decisions of other States and of England, and are to consider the question on principle, then I think the same conclusion should follow. That there must be a taking is undoubted; that it must be wrongful and without excuse or color of right. But when these circumstances exist, what does it matter whether the motive of the person taking is to benefit himself or to injure the owner? Suppose the property is a thing highi valued by the owner; a thing which the person taking it cannot use and does not intend to use; and suppose that out of malice, he takes it from the owner and keeps it permanently, in order to deprive the owner of it, what is this act? Not malicious mischief, because the property is not injured; certainly not a mere trespass, because it has the elements of malicious wrong-doing. Is such a wrong-doer to escape because he can say: 'I did not take the property lucri causa?' Yet on the doctrine against which I am contending, such a wrong-doer would escape altogether. He would be guilty of no malicious mischief, and if not guilty of larceny, would be only a trespasser; a conclusion which seems to me plainly incorrect.

“Undoubtedly where there is no taking there is no larceny, although there

Wilson v. State.

may be malicious mischief; but when the property has been in fact taken with intent to deprive the owner of it permanently, it does not matter whether the thief intends to kill and eat the cow, or to kill and bury it.

"In a large majority of cases the thief intends personal gain. Perhaps for this reason the phrase lucri causa crept in, to mark the distinction between larceny on the one hand, and on the other hand the wrongful taking for temporary use and to return (State v. Self, 1 Bay, 242), or to use and leave. Rex v. Phillips, 2 East Pl. 662. It might have been intended to note the fact that, in cases like these, there was no permanent appropriation. But as I think, the phrase was misused, or the distinction was incorrect, when it was thought that a wrongful taking with intent to destroy in order to injure the owner was not larceny.

"I think it incorrect to call such an act as that of the defendant merely malicious mischief; because that is a crime which may be committed without any wrongful taking of the property. On the other hand, the taking is of the very essence of larceny. When we find that circumstance of a taking, we have only to see whether the taking was excusable, or was a mere trespass, or was larceny. It is of little consequence which of two bad and illegal motives influenced the wrong-doer, whether to profit himself or to injure the owner." In King v. Cabbage, Russ. & R. 292, it was held, by a divided court, that taking away and killing a horse was larceny; and in King v. Morfet, Russ. & R. 307, it was held, by a divided court, that opening the master's granary with a false key, by his servants in husbandry, and taking away some beans to feed to his horses in addition to the ordinary quantity, was larceny, on the ground that this would diminish the work of the ostlers! The court in State v. Hawkins, 8 Port. 461, well declare this a "shadowy and almost imaginary distinction." In Rex v. Dickinson, Russ. & R. 420, it was held that taking a girl's clothing and carrying it to a hay mow, where the defendant had had sexual connection with her, in order to induce her to come there again for the same purpose, was not larceny. Some other English cases are cited in Com. v. Mason, 105 Mass. 163; s. c., 7 Am. Rep. 507.

In State v. Hawkins, 8 Port. 461, it was held, that merely aiding a slave to escape does not constitute larceny. The court say that King v. Cabbage and King v. Morfet cannot be considered as authority in this country, both on principle and because they were decided by a bare majority This case is not explicitly overruled in Williams v. State, 52 Ala. 411.

In State v. York, 5 Harring. 493, it was held that the taking of a horse by an indentured servant to facilitate his escape, and the abandonement of it, did not constitute larceny. There was no discussion of the question.

This

In People v. Juarez, 28 Cal. 380, lucri causa was held not essential. was based on Rex v. Cabbage, and Wharton Cr. Law, $ 1781, the court observ. ing: "Although the doctrine has been repudiated in State v. Hawkins, 8 Port. 61, we think the cases in the English court place the matter on the true basis,"

etc.

In State v. Ryan, 12 Nev. 401; s. c., 8 Am. Rep. 802, it was held that break ing open a tool-house, taking a hand car, riding it on the railway and leaving it at the side of the track, did not constitute a larceny. The court approve

Brink v. State.

Rer v. Cabbage and People v. Juarez, but put the decision on the ground that there was no proof of intent to deprive the owner of his property.

In Keely v. State, 14 Ind. 36, lucri causa was held not essential, but it was held that there was evidence of felonious intent to deprive the owner of his property.

In State v. Brown, 3 Strobh. 508, a slave-taking case, the court say obiter that at common law there is "no doubt" that lucri causa is not essential, but that the statute puts it beyond doubt.

In State v. Davis, 9 Vroom, 38 N. J. L. 176; s. c., 20 Am. Rep. 367, the prisoner secretly ran away with a horse and carriage, with no intention of returning them and abandoned them. Held larceny. There is a good discussion of the subject there.

Mr. Bishop seems to incline to the English view, that lucri causa is not essential. 2 Cr. L., § 848.

See Hope v. People, 83 N. Y. 418; s. c., 38 Am. Rep. 460.

The doctrine of "once in jeopardy" applies to misdemeanors as well as

felonies.

CONVICTION of Sabbath-breaking. The opinion states the

J. H. Burts, assistant attorney-general, for State.

HURT, J. This is a conviction for selling a cigar to one Jim Dixon on Sunday.

To the information, the defendant pleaded in effect former jeopardy by reason of the fact that he had been indicted for the same offense, and that said indictment had been certified from the District Court of Robertson county to the County Court of said county, and that on the 5th day of March, 1885, the case was called for trial; that both parties announced ready for trial; and that after the jury was impanelled and sworn, and all of the evidence introduced, the county attorney moved to enter a nolle prosequi to said case; to which the defendant objected, and over the objection of the defend

Brink v. State.

ant, the court allowed the said county attorney to nolle prosequi the same, and that the prosecution was dismissed.

The indictment nolle prosequied charged that the defendant was a dealer in the sale of cigars, drugs, etc., the same being a lawful business.

The information describes the defendant as being a merchant and grocer, and a trader in a lawful business.

The evidence shows but one transaction, to-wit, the sale of three cigars to Jim Dixon on Sunday.

[Minor points omitted.]

Or in

Do the principles of jeopardy apply to misdemeanors? other words after the parties have announced ready for trial upon a good and sufficient indictment, the jury being impanelled and sworn, and the plea entered, can the State, in misdemeanor, nolle prosequi the case, and afterward prosecute for the offense charged in the indictment nolle prosequied?

It is well settled that this cannot be done in felony cases. How as to misdemeanors? We are not aware that this question has ever been passed upon by the Supreme Court of this State.

However, upon this subject Mr. Bishop says: "The reader has observed in what words this constitutional provision is expressed, namely, that the offender shall not be twice put in jeopardy of 'life or limb' (Federal Constitution), the construction of which words is that properly the rule extends to treason and all feloniesnot to misdemeanors. Yet practically and wisely the courts have applied it to misdemeanors also." And in McCauley v. State, 26 Ala. 135, Judge RICE discusses this question elaborately, and as we think, conclusively, showing that the constitutional provision which protects the citizen from being twice put in jeopardy applies to misdemeanors as well as felonies.

Because of the error in the charge of the court, and because the defendant's plea of jeopardy was withdrawn from the consideration of the jury, the judgment is reversed and the cause remanded.

Reversed and remanded.