[Edmonds v. The State.] tolled the hog to the distance of about twenty yards; that the defendant then struck the hog with the axe, and the hog squealed, whereupon immediately both witness and defendant ran away, leaving the hog where it was." Upon this state of facts, the court charged the jury, that, if they believed the evidence, it was sufficient to show such a taking and carrying away of the. property, if done feloniously, as was necessary to make out the offense of larceny. We think the court erred in giving this charge, though the question presented is not free from some degree of doubt and difficulty. The usual definition of larceny is, "the felonious taking and carrying away of the personal goods of another.' 4 Black. Com. 229. It is defined in Roscoe's Criminal Evidence, as "the wrongful taking possession of the goods of another, with intent to deprive the owner of his property in them."-Ib. 622. It is a well-settled rule, liable to some few exceptions, perhaps, that every larceny necessarily involves a trespass, and that there can be no trespass, unless there is an actual or constructive taking of possession; and this possession must be entire and absolute. Roscoe's Cr. Ev. 623-24; 3 Greenl. Ev. § 154. There must not only be such a caption as to constitute possession of, or dominion over the property, for an appreciable moment of time, but also an asportation, or carrying away, which may be accomplished by any removal of the property or goods from their original status, such as would constitute a complete severance from the possession of the owner. 1 Greenl. Ev. § 154; Roscoe's Cr. Ev. p. 625. It has been frequently held, that to chase and shoot an animal, with felonious intent, without removing it after being shot, would not be such a caption and asportation as to consummate the offense of larceny. Wolf v. The State, 41 Ala. 412; The State v. Seagler, 1 Rich. (S. C.) 30; 2 Bish. Cr. Law, $ 797. So, it has been decided, that the mere upsetting of a barrel of turpentine, though done with felonious intent, does not complete the offense, for the same reason. The State v. Jones, 65 N. C. 395. The books are full of cases presenting similar illustrations. On the contrary, it is equally well settled, that where a person takes an animal into an inclosure, with intent to steal it, and is apprehended before he can get it out, he is guilty of larceny.-3 Inst. 109. In Wisdom's case, 8 Port. 507, 519, it was said, arguendo, by Mr. Justice GOLDTHWAITE, "If one entice a horse, hog, or other animal, by placing food in such a situation as to operate on the volition of the animal, and he assumes the dominion over it, and has it once under his control, the deed is complete; but, if we suppose him detected before he has the animal under his control, yet after he has operated on its volition, the offense would not be consummated." This principle is, no [Blankenshire v. The State.] doubt, a correct one; but the true difficulty lies in its proper. application. It is clear, for example, if one should thus entice an animal from the possession, actual or constructive, of the owner, and toll it into his own inclosure, closing a gate behind him, the custody or dominion acquired over the animal might be regarded as so complete as to constitute larceny.-2 Bish. Cr. Law, 806. It is equally manifest that, if one should, in like manner, entice an animal, even for a considerable distance, and it should from indocility, or other reason, follow him so far off as not to come virtually into his custody, the crime would be incomplete. The controlling principle, in such cases, would seem to be, that the possession of the owner must be so far changed as that the dominion of the trespasser shall be complete. His prox imity to the intended booty must be such as to enable him to as sert this dominion, by taking actual control or custody by manucaption, if he so wills. If he abandon the enterprise, however, before being placed in this attitude, he is not guilty of the offense of larceny, though he may be convicted of an attempt to commit it. Wolf's case, 41 Ala. 412. It would seem there can be no asportation, within the legal acceptation of the word, without a previously acquired dominion. The facts of this case, taken alone, do not constitute larceny. It is not a reasonable inference from them, that there was such a complete caption and asportation as to consummate the offense. The judgment of the Circuit Court is reversed, and the cause is remanded., 70 99 523 70 =སྥོ །ཋ=།=ཎྜཋམྦ 105 114 70 70 141 102 1 Blankenshire v. The State. Prosecution for Wantonly Killing a Hog. Criminal jurisdiction of County Court; appeal from justice's judg 115 137 ment. The act approved February 23d, 1881, conferring additional jurisdiction upon the County Court of Wilcox, and regulating the proceedings in that court (Session Acts 1880-81, p. 295), takes away from the Circuit Court all jurisdiction to try misdemeanors in that county, and confers it on said County Court; and this includes the power to entertain appeals from a judgment of conviction rendered by a justice of the peace in a criminal prosecution. 2. Affidavit and warrant; sufficiency of, in description of offense; amendment. In a criminal prosecution before a justice of the peace, an affida-. vit and warrant charging that the defendant "killed a hog, the property of A. B., worth about ten dollars, against the peace," &c., do not charge [Blankenshire v. The State.] any criminal offense whatever; but, no objection to the sufficiency of the affidavit or warrant being raised before the justice, and the case being carried by appeal into the Circuit or County Court, where the trial is to be had de noro (Code, § 4701), a complaint may be there filed, charging that the defendant, "within twelve months before the commencement of this prosecution, did unlawfully or wantonly kill, disable, or destroy one hog, the property of A. B.," &c. From the County Court of Wilcox. J. A. MATTHESON, and R. GAILLARD, for appellant. H. C. TOMPKINS, Attorney-General, for the State. STONE, J.-The present prosecution was commenced and tried before a justice of the peace of Wilcox county, and carried by appeal from the justice's judgment to the County Court. The affidavit and warrant sued out, on which the trial and conviction were had before the justice, are defective, and fail to charge any offense known to the law. No objection for insufficiency of the affidavit or warrant is shown to have been made before the justice of the peace, but the trial appears to have been had on the merits alone. The charge in the original affidavit and warrant is, that defendant had "killed a hog, the property of Jacob Albritton, worth about ten dollars, against the peace and dignity of the State of Alabama." Under the act To increase the criminal jurisdiction of justices of the peace and notaries public with like powers, in the counties of Lauderdale, Wilcox and Lawrence," approved January 25th, 1879 (Pamph. Acts, 220), justices of the peace have jurisdiction of all misdemeanors. When the case was appealed to the County Court, the solicitor was allowed, against the objection of defendant, to file a complaint in the following words: "The State of Alabama, by its solicitor, complains of Richard Blankenshire, that within twelve months before the commencement of this prosecution, he did unlawfully, or wantonly, kill, disable or destroy one hog, the property of Jacob Albritton, of the value of ten dollars." This amended charge, or complaint, sufficiently alleges a violation of section 4409 of the Code of 1876. The sole question in this case is, did the County Court err in allowing this complaint to be filed. The offense complained of in this case is charged to have been committed in August, 1881. On the 23d February, 1881, the act was approved, "To confer additional jurisdiction upon the County Court of Wilcox county, and to regulate the proceedings therein."-Pamph. Acts, 295. That act takes from the Circuit Court all jurisdiction for the trial of misdemeanors in [Blankenshire v. The State.] that county, and confers it upon the County Court. Among the provisions of the said statute are the following: Sec. 5. "That said County Court shall conform to the practice and rules of procedure of the Circuits Courts of this State." Sec. 11. "That all laws of a general nature, now in force, or that may be hereafter enacted, so far as the same apply to misdemeanors, unless the contrary be expressly provided, or as may be limited by this act, shall be held to apply and extend to said County Court." The act contains no limitation of the power and authority conferred on said County Court, by the section last above copied, which affects this case. Sec. 15. "That all appeals from said County Court shall be to the Supreme Court of Alabama," &c. The direct result of this statute, as we have said, is to take from the Circuit Court of Wilcox county all power to hear and determine misdemeanors, and to confer on the County Court all the power and jurisdiction to try such offenses, theretofore exercised by the Circuit Court. Among the powers necessarily transferred, is the power to entertain appeals from a justice's judg ment of conviction, conferred by section 4700-01 of the Code of 1876. To hold otherwise, would be to deny all right of appeal in such cases; for, manifestly, the Circuit Court could not entertain jurisdiction of misdemeanors, no matter how brought before it. Having jurisdiction-sole jurisdiction-of the appeal, that court, under the section of the statute copied above, will exercise all the powers the Circuit Court could exercise under the former system. "The trial, . . . . on appeal from a judgment rendered by a justice, shall be de novo, and shall be governed in all respects by the rules and regulations prescribed for the trial of appeals from the County Court."-Code, § 4701. Sections 4722 and 4729 of the Code of 1876 lay down the rules applicable to amendments in such cases. In Tatum v. The State, at the last term, we construed these sections, and held that "no objection could be made to any inaccuracy or imperfection in the proceedings" before the primary court. Under the authority of that case, and the sections of the Code therein construed, the amendment was rightly allowed, and the present record is free from error. Affirmed. .. [Watson v. The State.] Watson v. The State. Indictment for Embezzlement or Fraudulent Conversion by Bailee. 1. What bailees are within statute.-The statute which declares that any private banker, commission-merchant, factor, broker, attorney, bailee, or other agent, who embezzles, or fraudulently converts to his own use," &c., "any money, property or effects, deposited with him, or the proceeds of any property sold by him for another, must be punished as if he had stolen it" (Code, § 4384), applies only to bailments in which the parties stand to each other in a fiduciary relation, the bailee having the possession wholly and exclusively for the benefit of the bailor; and a conviction can not be had under it against the hirer of a domestic animal who sells the same during the term. FROM the Circuit Court of Russell. Tried before the Hon. H. D. CLAYTON. The indictment in this case, as twice copied in the transcript, charged that the defendant, "Samuel Watson, the bailee of Samuel Reid, did envagle (?), or fraudulently convert to his own use, property, to-wit, two oxen, animals of the cow kind, deposited with him, the said Samuel Watson, by said Samuel Reid, who was the owner thereof, against the peace," &c. "On the trial," as the bill of exceptions states, "the evidence showed that, on the 4th January, 1881, in said county of Russell, the prosecutor hired a yoke of oxen to the defendant, at $1.50 per week, to haul wood from Russell county into the town of Girard in said county, and into Columbus, Georgia; that the defendant did, with the consent of the prosecutor, use said oxen in hauling wood into Girard and Columbus, and from time to time paid for their hire sums amounting to $6.00; and that in March, 1881, defendant sold said oxen to W. L. Tillman, who resided in Columbus, Georgia. There was no proof of the place or terms of this sale to Tillman. There was proof tending to show that, in February, 1881, the prosecutor had sold these oxen to the defendant. This was all the evidence in the case, necessary to a proper understanding of the exceptions. The court charged the jury, among other things, that if they believed, from the evidence, that the defendant diverted the oxen from the use for which he had hired them, and removed them out of the State of Alabama, with the intention of placing them beyond the reach of the owner; that would be a conversion of them, for which he might be convicted in this case, whether he sold them or not; and if he afterwards sold them, |