Hubbard v. State

¶1(1) Larceny is the felonious taking and carrying away of the personal property of another, with the intent to convert it to the use of the taker or deprive the owner thereof.—Higgs v. State, 113 Ala. 36, 21 South. 353. There must he a taking and asportation without the consent of the owner and with the intent to divest his ownership, and these must concur to constitute the offense.—Fort v. State, 82 Ala. 50, 2 South. 477.

¶2(2) The undisputed evidence in this case shows that, if there was a taking, it was by the defendant Newberry, and not by the appellant in this case, and that New-berry took the property openly under claim of ownership. There is no proof that the appellant had anything to do with the taking of the property, aside from the fact that he told Newberry that he (appellant) had seen his (Newberry’s) animal in the flatwoods. The evidence shows that after this Newberry and another, not appellant, went to the flatwoods and drove the animal to the appellant’s place and put it in the lot; that New-berry and the appellant lived in the same house together. The jury acquitted Newberry, but returned a verdict of guilty as to this appellant.

¶3On the undisputed evidence, we are of opinion that the affirmative charge requested by appellant should have been given.

¶4Reversed and remanded.