Wright, Administrator, v. Miller. "3. That the court had no jurisdiction over the persons of the parties to the action; "4. That the court had no jurisdiction over the subject of the action; "5. Because the verdict of the jury, or the damages assessed, are excessive; and, "6. The plaintiff has consented to the granting of a new trial." The assignment of errors is as follows: "1. The court erred in overruling defendant's motion to reject the claim of plaintiff'; "2. The court erred in admitting the evidence of Hannah Miller; and, "3. The court erred in overruling the motion for a new trial." We proceed to consider and decide upon the errors assigned. 1. The court did not err in overruling the motion to reject the claim of the plaintiff. 2. The action of the court in admitting the evidence of Hannah Miller, might have been assigned as a cause for a new trial, but can not be assigned as error, in this court. It was not made a ground of a motion for a new trial. 3. The third error assigned is the overruling of the motion for a new trial. Counsel for appellant, in his brief, says: "As to the 3d, 4th and 5th grounds for a new trial, we have no very strong reasons for pressing them as sufficient." As to the 6th, the record shows no consent of the opposite party, except the allegation in the motion for a new trial, and the court may not have conceded the truth of that allegation. And such consent, had it been given, would not necessarily have made it error in the court to overrule the motion. The only remaining question is: Was the verdict Umphrey v. The State. sustained by the evidence? The evidence tended to prove that the appellee, Josephine, worked in the family of Cornelius Britton, deceased, at least five years after she arrived at the age of twenty-one years; that she was industrious, working in the house, and in the field as a farm hand, when required; that she commenced working under promise of compensation, without a fixed price, and continued after she became of age, without a new contract; that her services were worth from two dollars and a half to three dollars a week, or, in the aggregate, over six hundred dollars. She recovered for a little more, perhaps, than half of the time she worked af ter becoming of age. We can not say, that she was not entitled to recover compensation, nor that the amount recovered was excessive. The claim was not barred by the statute of limitations. 2 R. S. 1876, p. 121. The judgment is affirmed, with costs. UMPHREY V. THE STATE. CRIMINAL LAW.-Larceny.-Intent in Taking.--To constitute larceny, the taking must be with a felonious intent existing at the time of the taking. SAME.-Trespass.-A mere tortious taking of personal property, without felonious intent, is not a larceny. From the Marshall Circuit Court. A. B. Capron, A. C. Capron and M. Nye, for appellant. Howк, C. J.-At the October term, 1877, of the Marshall Circuit Court, an indictment of a single count was returned into court against the appellant. In this indictment it was 63 155 559 Umphrey v. The State. charged, in substance, that the appellant, "Richard Umphrey, did then and there, on the 27th day of April, 1877, at the county of Marshall and State of Indiana, feloniously steal, take, ride and drive away one dark brown horse, of the value of one hundred dollars, the personal goods and chattels of Amos B. Peters, then and there being found, contrary to the form of the statute," etc. The appellant waived an arraignment on said indictment, and for plea thereto said that he was not guilty. The issues joined were tried by a jury, and a verdict was returned, finding the appellant guilty, as charged in the indictment, and assessing his punishment at imprisonment in the state-prison for the term of two years, a fine of seventy-five dollars, and disfranchisement, etc., for the term of three years. And the appellant's written motion for a new trial having been overruled, and his exception saved to such decision, judgment was rendered on the verdict. The only alleged error, properly assigned by the appellant in this court, is the decision of the circuit court, in overruling his motion for a new trial. As necessary to a proper understanding of this cause and of our decision thereof, we give a summary of the facts shown by the evidence set out in the record. The appellant was a youth of twenty years of age, the son of a widow. He had lived in Marshall county for about three years, and had worked for a considerable time, as a hired laborer, for Amos B. Peters, the owner of the horse charged to have been stolen. Some two days before the day on which it was alleged that he had stolen said horse, the appellant had been arrested by a constable in said county, on a charge of petit larceny. The constable had treated him kindly, and had kept him for two days in custody, without committing him to jail. In the evening of April 27th, 1877, his trial on the charge of petit larceny Umphrey v. The State. resulted in his acquittal, or rather his discharge from custody, on that charge. After the trial, the constable advised him to leave the country for a while. That night the horse described in the indictment was taken from the stable of its owner, Amos B. Peters, and also a bridle and halter. Two days afterward, the appellant was arrested in Miami county, in this State, charged with the larceny of the horse. The only evidence introduced on the trial, which tended to connect the appellant with the taking of the horse, was his own statements or confessions, after his arrest and while he was in custody. At first, he denied the taking of the horse; but subsequently, on the same day, he stated that he had taken the horse from the stable of its owner, about nine o'clock in the evening,-had travelled on it all night, in going to Miami county, where he had formerly lived, and that, about daylight of the ensuing morning, he had dismounted from the horse, and, fastening up the bridle and halter reins, he had turned the horse loose, and started him back toward the home of his owner, Amos B. Peters, fully believing and expecting the horse would find his way there. The appellant informed Mr. Peters of the place where he had turned the horse loose and started him back homewards; and in the vicinity of that place, Peters found his horse, bridle and halter. Peters testified that the appellant "always said that he had just taken my horse to ride, and that he thought, when he turned him loose, that he would go directly home, without any trouble." There was no evidence introduced on the trial, from which it could be reasonably inferred, as it seems to us, that the appellant had taken the horse for any other or different purpose, or with any other or different intent, than the purpose or intent indicated and expressed by him in all his statements or confessions, given in evidence. Not VOL. LXIII.-15 Schafer v. Smith. " a fact was established by the evidence, from which it might be fairly inferred, that, when the appellant took the horse, or at any time afterwards, he ever intended to deprive Amos B. Peters of his horse, or to convert such horse to his own use. In other words, the felonious intent, which is an essential element in every larceny, was not shown by the evidence; nor was any fact established, from which such felonious intent could be fairly and reasonably inferred. The evidence failed to show, as we read it, that, in the taking of the horse of Amos B. Peters, the appellant was guilty of a larceny. To constitute this offence, the taking must be felonious, and the felonious intent must exist at the time of the taking. Keely v. The State, 14 Ind. 36; Hart v. The State, 57 Ind. 102; Bicknell Crim. Prac. 329. At most, it seems to us, the appellant was a trespasser, in the taking of the horse. We are constrained to say, that the verdict of the jury in this case, in our opinion, was contrary to law, and was not sustained by any sufficient evidence. The court erred, we think, in overruling the appellant's motion for a new trial. The judgment is reversed, and the cause is remanded for a new trial. The clerk of this court will issue the proper notice to the warden of the state-prison, for the appellant's return to the sheriff of Marshall county. SCHAFER v. SMITH. LIQUOR LAW.-Act of 1873, Section 12.-Action by Wife.- Exemplary Damages.—Interrogatory to Jury.--Remittitur.-Supreme Court.-On the trial of an action by a married woman, instituted under the 12th section of the act of February 27th, 1873, Acts 1873, p. 151, regulating the sale of intox |