majority">Lore, C. J.,

charging the jury:

Gentlemen of the jury:—William W. Pullen, the defendant, 1 is charged in this indictment with larceny. It is hardly necessary ; for us to define larceny further than to generally say that it is the felonious taking and carrying away of the goods of another with i the intent to convert them to the use of the taker, without the consent of the owner; and it is for you to say whether this crime has been made out by the State and whether this prisoner is guilty or not guilty.

The defendant has asked the Court in one of his prayers to direct the jury to bring in a verdict of not guilty, because the State has failed to adduce any testimony whatever that the property alleged to have been stolen was the property of John M. Smoot, as alleged in the indictment, contending that all the testimony of the State goes to the effect of showing that it was the property of John M. Smoot, constable. The indictment charges that it was the property of John M. Smoot, and does not aver that it was his property as constable.

The Court holds that that is rather a matter of proof than of necessary averment. And as has been well said in the case of Com. vs. Morse, 14. Mass., 216, “ The averment will be made out • by proving that the goods stolen were either the general or special property of the person averred to be the owner; ” and inasmuch as under our law the constable had a special property in the goods and the property is laid in him, that averment of the indictment is sus*187tained by the proof showing that he had that special property as a constable, and it is not at all necessary for the State to aver in the indictment that it was his property as constable. The Attorney-General has asked us to charge you, that although you may believe these goods were taken by some other person, yet that if the defendant aided, abetted, procured or commanded the taking thereof, he would be equally guilty with the principal—if it was larceny.

The statute upon that subject provides that every person who shall abet, procure, command or cause, any other person or persons to commit any crime or misdemeanor shall be deemed an accomplice and equally criminal as the principal offender. So that if you believe this is larceny, and that the defendant, aided, abetted, procured ar commanded, or caused any other person to commit it, he would be equally guilty.

And here you come down to the main proposition: Is he guilty of larceny ?

It is incumbent on the State to prove that these goods were taken and carried away, that they were the property of some other person; and there does not seem to be any controversy between the two parties with respect to this, that the property was in another, and not in the defendant. But the controversy seems to be mainly upon the intent; the State claiming that when the defendant Pullen took the horses away, his intention was feloniously to convert them to his own use; the defendant contending that he took them under a claim of right; and about that point cluster the main issues of this case.

The Court say to you that where a person takes goods under a claim of right, honestly and bonafidely believing that he has a claim, whether he has any claim either in law or in fact, then he may not be convicted of larceny, because the felonious intent to convert them to his own use is not present. If, however, you believe his intent was to so convert them to his own use and that the claim of right was a mere subterfuge, your verdict should be guilty.

*188The intent is to be gathered from all the circumstances surrounding this case; from the acts and words of the defendant and any and every other matter of testimony that has come before you in this case and in this court-room, which will throw light upon the point of whether his intention was to convert the property to his own use; or whether what he did was done under an honest 7 belief that he had a right and was protecting some other person a interest under a claim of right.

If you have a reasonable doubt as to his intent, that doubt should inure to,.his acquittal.

Verdict, not guilty.

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