¶1The conviction of the defendant for larceny was proper under the circumstances. The prosecutor had parted only with the custody of the mule, as distinguished from the possession, which was still in him as owner, although the defendant had the custody of the animal as mere employee or servant. It has often been decided, and is now settled law, that goods in the bare charge or custody of a servant are legally in the possession of the master, and the servant may be guilty of trespass and larceny by the fraudulent conversion of such goods to his own use. — Oxford v. State, 33 Ala. 416; 2 Bish. Crim. Law (7th Ed.), § 824.
¶2It is accordingly said by Lord Hale, that it would be larceny if a butler should appropriate his master’s plate, of which he had charge; or the shepherd, his master’s sheep in his custody; and so, of an apprentice who feloniously embezzles his master’s goods. — 1 Hale, 506; Roscoe’s Crim. Ev. (7th Ed.), *639. In .all such cases, -the custody of the servant is distinguishable from that of a bailee, or other person who has a special -property in the goods, by reason of being under a special contract with respect to them. A mere servant, or employee, has no such special property. — 3 Greenl. Ev. (14th Ed.), § 162. Where, however, a bailee, having such special property in goods, converts them to his own use, no conviction of larceny can be had, without proving a fraudulent or felonious intention on his part at the time he received the goods in bailment. 2 Whart. Or. Law, (9th Ed.), § 963; Watson v. State, 70 Ala. 13.
¶3The charge requested by the defendant was in direct conflict with this view of the law, and was properly refused.
¶4The judgment is affirmed.