CASE 6. — PROSECUTION AGAINST BUNION TRIPLETT FOR LARCENY BY STEALING CATTLE. — February 15.

#### Triplett v. Commonwealth

Appeal from Pike Circuit Court.

A. J. Kirk, Circuit Judge.

Defendant -convicted and appeals.

Reversed.

1. Robbery — Larceny—Intent—Under the statute, in order to constitute either of the offenses of robbery or larceny, it is necessary that the felonious intent should exist.

2. Same — Questions for Jury — -Ordinarily, in prosecutions for larceny, where the facts are in dispute, or the intent doubtful, the question should be left to the jury under proper instructions.

3. Same — Where accused took from the possession of the court’s receiver certain cattle belonging to accused and taken from him under process in an action against him, accused was not guilty of robbery or larceny, in the absence of evidence of felonious intent.

4. Same — Application of Statute — -Kentucky Statute 1903, section 1256, providing that, if any person -unlawfully, but not with felonious intention, take, carry away, etc., any property not his own, he shall be fined, etc., was not applicable where accused, in a prosecution for robbery, took from the possession of the court’s receiver, under the belief that he had a right to do so, certain cattle taken from accused under process in an action against him.

5. Same — The statutory offense prescribed in Kentucky Statutes 1903, section 1256, imposing a fine on any person unlawfully, but not wth felonious intention, carrying away property not his own, is not a degree of the common-law offense of robbery, and -an accused in a prosecution for robbery could not be .found guilty of robbery or any degree thereof, such as larceny.

Hobson, C. J., and Paynter, J., dissenting.

*36W. H. MAX and W. S. HARKINS- for appellant.

CITATION OF AUTHORITY AND CLASSIFICATION OF QUESTIONS DISCUSSED-

1. Robbery, and Grand Larceny; Insufficiency of the Indictment; The Admission of Incompetent,Evidence; The Refusal to Admit Competent Evidence; Instructions to the Jury; Exclusion of Evidence. (4 Blackstone’s Comm., 241; Donnally’s Case, 2 East P. C., 725 (66 S. W., 27); Greenleaf on Evidence, Vol. 3, Sec. 150; 4 Blackstone’s Comm., 229; Lord Coke’s Definition, Sec. 758, foot note 2, Bishop's New Criminal Law, Vol. 2; Parke B. definition foot notes to Sec. 758, Bishop’s New Criminal Law, Vol. 2; Commonwealth v. Davis et al, 66 S. W., 27;' Robertson’s Kentucky Criminal Law and Proceedure, Vol. 1, Sec. 412.

2. Writ of Assistance; Attachments; Claims and Delivery. (Civil Code of Practice, Sec. 180, 181 and 184; Black’s Law Diet., p. 1246; Black’s Law Diet., p. 100.)

ADDITIONAL AUTHORITIES CITED.

Wharton’s Criminal Law, 8 Ed., section 942; Commonwealth v. Morse, 14 Mass., 217; Kentucky Statutes, section 409 (1903); 21 .Cal., 344; Century Digest, Vol. 42, p. 2695; Thompson v. Commonwealth, 18 S. W., 1022; Siker ,v. Commonwealth, 34 S. W., 902; Banner v. State, 9 Texas, 128; Reed v. Commonwealth, 7 Bush., 641; Jones v. Commonwealth (Ky.), 57 L. R. A., 432; State v. Mazyck, 3 Rich., 291.

N. B. HAYS, Attorney General, and CHARLES H. MORRIS for appellee.

1. Was the offense larceny?

. Leslie, the party who had the cattle in his possession, was, to say the least of it, a bailee. In this case he was not only the bailee of Bowles, the Court Receiver, who had a special ownership in the oxen, but by an express agreement was the bailee of the real owners. "

2. The proof on the part .of the appellant shows plainly that ho knew that the Receiver Bowles had acquired a special ownership in the cattle. He does not deny that he knew of the orders and proceedings of the court, which were in full force and effect at the time of the taking.

3. The fact that he took the gun showed the intent. The fact that he said to Leslie that he had executed bond shows that *37he went there for the purpose of taking the cattle by ffaud, and having the gun, he further intended to take them with force, to the extent of shooting some person, if he'had been resisted in his designs.

4. The instructions given by the court were proper. They covered every possible phase of the case according to the testimony, and were clear and concise. The instructions offered by the appellant were properly overruled. There was some evidence tending to connect the accused with the commission of the offense, and the case was properly given to the jury to decide.

AUTHORITIES.

. Criminal Code, section 124; Green v. Commonwealth, 19 R., 750; Criminal Code, section 14-230; Commonwealth v. Prewitt, 82 Ky., 240; Wharton’s Criminal Law I., section 936.

OPINION by

Judge Barker

— Reversing.

The appellee, Bunion Triplett, was indicted by the grand jury of Pike county, charged with the offense of robbery. To this he pleaded not guilty, but upon trial the jury returned a verdict of guilty of larceny, and fixed his punishment at confinement in the penitentiary for a term of two years. Prom the judgment based upon this verdict, this appeal is prosecuted.

The facts, in brief, are these: The appellant was the owner of certain cattle (oxen). One Scott instituted an action against him in the Pike Circuit Court, in which process was issued under which the cattle were taken and placed in the hands of the court’s receiver, C. C. Boles, who turned them over to S. P. Leslie, to be kept on pasture pending the litigation. "While the cattle were thus in the possession of Leslie, the appellant came-to his house with a gun on his shoulder, asked for him, and, when he came out, inquired if he had the cattle, and where they Were. In response,-Leslie said to the appellant that they were in his field, but that, unless he (appellant) was duly *38authorized, he had better not take them, as he might get into trouble. T'o this the appellant replied that he was authorized, and something was said about having executed bond, but this is vague and uncertain, and we are not sure he meant to say that he had executed a replevin bond; but, at any rate, he drove the cattle off down the road and into the State' of Virginia, where they were sold. It is not pretended that the appellant used any threats or menaces towards Leslie. On the contrary, the latter says in Ms testimony that the appellant treated him “very nice,” and offered to pay him what was due for pasturing the cattle; that he knew the appellant was a “bad man,” and he saw the gun and made no resistance, objection, or remonstrance, except as above stated, to the driving off of the cattle. Assuming the process of the court was regular, and the cattle were rightfully in the possession of Leslie, so far as the pending litigation was concerned, and that appellant was the real owner of the cattle subject to such rights as the court and the plaintiff in the litigation had in them, do these facts show appellant guilty, of the crime of robbery, as charged in the indictment, or of larceny, which is included therein?

We have no difficulty in reaching the conclusion that the special bailiff, Leslie, was intimidated by his knowledge that appellant was a “bad man,” and the additional fact that he had with him a gun; but it does not follow therefrom that the act of driving off the cattle openly and quietly constituted appellant a felon. Larceny is the unlawful taking and carrying away the goods or property of another, secretly or furtively, with the felonious intent to appropriate them to the use of the trespasser. Robbery is called *39in the hooks a compound larceny, and is constituted by the unlawful and felonious taking and asportation of the personal property of another by violence, or by putting him in fear-. In order to constitute either of these offenses, it is necessary that the animus furandi or felonious intent should exist. In East’s Pleas of the Crown, Yol. 2, p. 655, on the subject of larceny, and the intent with which the taking must be done in order to constitute the crime, it is said: ‘ ‘ The felonious intent is essential to the offense; and in order to make it felony, the intent to steal ought to be at the time when the party first gets possession of the goods; such a possession, at least, as is distinct from that of the owner; for a fraudulent intent, originating afterwards, to convert the goods to his own use is not felony; hut the original felonious intent may he collected from subsequent acts. ’ ’ In the same volume, on the subject of robbery, quoting Wells, J., it is said: “* * * The following ingredients are necessary to constitute that offense: ■ (1) A felonious intent, or animus furandi; (2) some degree of violence or putting in fear; (3) a taking, from the person of another.” In Roscoe’s Criminal Evidence, p. 829, the following principle as to robbery is enunciated: “The robbery must he animo furandi, with a felonious intent to appropriate the goods to the offender’s own use. * * * Though the party charged take the goods with violence and menaces, yet, if it he under a bona fide claim, it is not robbery. The prisoner had set wires in which game -was caught. The gamekeeper, finding them, was carrying them away when the prisoner stopped him, and desired him to give them up. The game keeper refused, upon which the prisoner, lifting up a large stick, threatened to beat *40out the keeper’s brains if be did not deliver them. The keeper fearing violence delivered them. Upon an indictment for robbery, Yaugbn, B., said: ‘I shall leave it to the jury to say whether the prisoner acted upon an impression that the wires and pheasant were bis own property, for, however he might be liable to penalties for having them in his possession, yet, if the jury think that he took them under a bona fide impression that he was only getting back the possession of his own property, there was no animus< furandi, ¿nd the prosecution must fail.’ ”

In the case of Searls v. Commonwealth, 7 Ky. Law Rep., 223, it appeared that -a sheriff had levied upon a raft of logs owned jointly by the execution defendant and two other persons, and notified the joint owners of the levy, and they would be prosecuted if they removed the raft. Notwithstanding this notice, the execution defendant and one of the other joint owners removed the logs. Held: “That there was no evidence of any felonious intent on the part of the owners in the taking of the logs-, but an assertion of right to the property that they believed they could exercise without the consent of the sheriff. Therefore the facts did not authorize their conviction of the offense of larceny.” In .the case of Sikes v. Commonwealth, 34 S. W., 902; 17 Ky. Law Rep., 1353, it Was held that, where a person retook money, which he had lost in gambling from the winner, by presenting a pistol to his head and thus putting him in fear, it is not robbery, because the alleged trespasser was only retaking his own. The same principle was upheld in Thompson v. Commonwealth, 18 S. W. 1022; 13 Ky. Law Rep., 916. In the case of Utz v. Commonwealth, 3 Ky. Law Rep., 88, an infant had *41exchanged horses with an adult. Afterwards he went, at night, and took the mare originally belonging to him from the possesion of Willis, the adult with whom he had made the exchange, and carried it across the river. He made no effort to conceal the-fact of his possession, nor did any other act, except that of taking the mare in the night, involving a felonious intent.' It was said in the opinion: “While the entry on the premises of Willis was a trespass, the accused, having-regained the mare, had the right'to trade her as his own and to repudiate the contract. Nor does the fact of Willis ’ knowledge as to his infancy affect the question of guilt or innocence. If the taking was to repudiate the contract and reclaim that which he had the right to demand, he was not guilty of the alleged larceny.” In the case of Ross v. Commonwealth, 20 S. W. 214; 14 Ky. Law Rep., 259, it appeared that a daughter had given her father a cow upon sufficient consideration. She afterwards retook the cow and converted it to her own use. She claimed that the cow was loaned to her father, hut the jury found her guilty of larceny. Judge Pryor, in delivering the opinion of the court reversing'the judgment said: “While her conduct with reference to her loan was reprehensible; still there is no case, upon the facts, that would authorize the incarceration of this woman in the State prison-for three years, or any period of time, at the instance of a cruel, unrelenting, and inhuman father. ’? In the case of Kirk v. Commonwealth, 14 S. W. 1089; 12 Ky. Law Rep., 707, a sheriff had levied upon a raft of logs and sold it; it being moored to the bank. The court said: “Moreover, the raft was removed when a tide in the river occurred, openly and without any circumstances inducing snspieion that it was .done *42with a felonious intent, and all the agency appellant had was to aid one of his sons, the other being absent, at his request, in getting it out of the creek, and then floating it down the river in full view of those near the river. It seems to us, there is no evidence in this case which tends to show, or from which a rational inference can be drawn, that the sons of appellant stole the raft, or that appellant, with any felonious intent whatever, aided them in removing it. ’ ’ In the case of Fletcher v. Commonwealth, 118 Ky., 35, 80 S. W. 1089; 26 Ky. Law Rep., 227, the defendant was charged with stealing lumber from a church under the following statute: “If any person shall feloniously take out of or from a church, chapel, or meeting house, school house, court house, or other public building, any goods or chattels or other thing of valúe belonging thereto, * * * he shall be confined to the penitentiary not less than two nor more than ten years. ’ ’ In discussing the facts, the court said: “Besides, in our opinion it is conclusively shown by the testimony in this case that the appellant did not remove the planks from the building with a felonious intent. There was not the slightest attempt at concealment on his part, and the voluntary restoration by him to the church of other planks of substantially the same kind and value is wholly inconsistent with any purpose on his part to commit a crime. The inconsiderable value of the planks removed is also material evidence in our opinion o^a lack of criminal intent. While the defendant was perhaps technically guilty of illegally appropriating personal property, the evidence wholly fails to make out a criminal intent on his part in so doing. We think the trial court erred in overruling the motion, at the close of the evidence for the com*43monwealth, for a peremptory instruction.to the jury to find him not guilty. ’ ’ ■

Clark, in his wtork on Criminal Law (page 285), says: “To take one’s own property by force is not robbery, for, as in larceny, the property must be another’s; and for a person to take property by force under a bona fide belief that it belongs to him is not robbery, for there must be the same felonious intent as in case of larceny. Felonious intent is always essential, and an instruction ignoring that element is ground for reversing a conviction. ’ ’ In Bishop’s New Criminal Law, Yol. 2, section 1162a, sub-section 4, it is said: “As in simple larceny, so in this compound-called robbery, a taking under an honest claim of right, however violent or wrongful, comes short of the full measure of the offense.” And in a note to Jones v. Commonwealth 57 L. R. A. 443, the rule is thus stated: “When the property is taken by force, actual or constructive, under color of right or claim of ownership, it is not robbery.’’ Citing Barnes v. State, 9 Tex. App. 128; People v. Vice, 21 Cal. 344; State v. Hollyway, 41 Iowa, 200; 20 Am. Rep., 586.

Prom the foregoing authority we deduce the rule that, under the English common law, and consequently under our statute, which is merely declaratory thereof, one cannot commit the crime of larceny or robbery without a felonious intent, or, in other words, he cannot commit them by inadvertence or through ignorance. In the ease at bar the cattle belonged to the appellant; they had been taken from him under process of court; while his acts in regard to them may have been a flagrant cqntempt of court, we perceive no evidence of moral turpitude, or perhaps, to speak with greater exactness, of that felon-*44ions intent Which constitutes tlie necessary foundation for the commission of the crime with which he stood charged. Ordinarily, in cases like this, where the facts are in dispute or the intent doubtful, the question should be left to the decision of the jury under instructions embodying the views herein expressed; but, in the case at bar, we think the court should have awarded the defendant a peremptory instruction to find him not guilty. We do not mean to hold that one may not he guilty of robbery or larceny by the wrongful taking of his own property, if he thereby designs to commit a fraud or entail a loss upon a rightful bailee or upon another, and what we have decided does-not include the principle involved in those old cases which hold that, where one takes from his servant his own property by force or stealth, for the 2>urpose of charging the hundred.with the loss, or where he takes from a bailee for the purpose of casting the loss of it upon the latter, or where he has deposited his property with another to secure a loan, and retakes it by force or stealth for the purpose of depriving the bailee of his property rights therein. There the moral turpitude is apparent, but the reasoning by which this principle is established has no place in the problem before us. Here the appellant retook his own, in broad daylight,' without effort at concealment, and under the. manifest belief that he had a right to do so.

Section 1256 of the Kentucky Statutes of 1903 has no application to the case a.t bar. That section, in so far as applicable here, is as follows: “If any person unlawfully, but. not’ with felonious intention, take, carry away, defhce, destroy or injure any property, real or personal, or other tiling of value not his Own, *45* # ***he shall be fined not less than ten nor more than two thousand dollars. ’ ’ As the cattle which appellant took, were his own, this taking, although wrongful, is not covered by the language of the statute which make's it an offense, without felonious intent, to carry away the property of another. In addition, this section has no application to the case in hand, because the statutory offense prescribed in the section is not a degree of the common-law offense of robbery, and therefore he could not be found guilty of the statutory offense if the proof failed to show him guilty of robbery, or any degree thereof, such as larceny. Connor v. Commonwealth 13 Bush, 714.

For these reasons the judgment is reversed for proceedings consistent herewith.

HobsoN, C. J., and Payktee, J., dissent.