mental weakness of the accused before the taking may be shown, not in extenuation, but as a circumstance from which absence of specific intent may be inferred.84

The state may always show circumstances from which it may be reasonably inferred that the accused made a claim to the property in bad faith or that he had no confidences in the claim under which he took it away. It may be shown that the accused, though claiming to own the property himself, endeavored to put it beyond the reach of the true owner, either by concealment, by selling it or by destroying it.85

Evidence of the secret taking of the goods, or of their open taking with the owner's knowledge but without his consent, and with the intent to sell them or to prevent the owner from finding them is always relevant.86

Facts or declarations prior or subsequent to the taking away may be proved if they are a part of the res gesta. From these a larcenous intent may properly be inferred. The false representations of the accused employed to procure money subsequently stolen are relevant.87 The testimony of an accomplice who aided the accused on an understanding with him that she was to induce men to drink intoxicating liquors in order that the accused, a saloon keeper, might steal their money is admissible.88

89

Parol evidence of a conversation between the prosecuting witness and the accused has been received where, prior to the taking of the property they met and traveled some distance in company to the place where the money was taken. So, generally any statement made by the accused to the owner or to any other person having possession of the property by which he obtains its possession that as, for example, where he states that he will keep it until the owner calls for it, is admissible on the intent. All

90

Long v. State, 11 Fla. 295, 297. Towns v. State, 167 Ind. 315, 78 N. E. 1012, 119 Am. St. 501.

88 State v. McCarthy, 36 Mont. 226. 92 Pac. 521.

89 Viberg v. State, 138 Ala. 100, 35 So. 53, 100 Am. St. 22.

90 State v. Levine, 79 Conn. 714, 66 Atl. 529, 10 L. R. A. (N. S.) 286.

these facts to be admissible must show an intention to commit larceny and not some other crime."1

§ 293. The carrying away.-The felonious taking away of the stolen property out of the possession of the owner, though only for an instant, without the owner's consent, being a constituent element of the crime, must usually be proved. It must be shown, too, that the accused actually meant to deprive the owner of his property permanently and not merely to use it temporarily in a mischievous or wanton manner, intending to return it.o1

One who accepting in good faith the custody of a lost article for the purpose of restoring it to its owner subsequently appropriates it to his own use is guilty of larceny."

It is always proper to permit the state to prove that the accused was in the house or in the room occupied by the prosecuting witness if the property stolen was there too. This evidence may be very strong if the accused was near the stolen property while the owner was absent and if on the return of the owner, the property

is missing." So evidence is admissible to show that persons who were in the company of the accused and who aided him in committing the larceny were acquainted with the accused prior thereto.97

Evidence that he was present when the taking occurred may be sufficient, if his presence was an aid to an accomplice who did the carrying away.98 Proof of the slightest carrying away for a very short time," by which the property is not taken out of the presence of the owner,' 100 and also when immediately thereafter it is restored to its former place.1 is enough if the accused is shown to have obtained full custody of, and entire and absolute control over the property." If the goods were lawfully taken by or delivered to the accused, the state must show an unlawful conversion or appropriation by the accused, as in embezzlement.3

§ 294. Ownership-Character and proof of.-The ownership of the property must be proved substantially as laid. Slight dis

Bradford v. State, 147 Ala. 95, 41 is proved to be in another a conviction So. 462. should be reversed. McDowell v. *State v. McGee, 188 Mo. 401, 87 State, 68 Miss. 348, 8 So. 508; Clark S. W. 452.

Edmonds v. State, 70 Ala. 8, 9, 45 Am. 68; Kent v. State, 64 Ark. 247, 41 S. W. 849.

"Eckels v. State, 20 Ohio St. 508, 513-517; Commonwealth v. Luckis, 99 Mass. 431, 433, 96 Am. Dec. 769; Harrison v. People, 50 N. Y. 518, 522, 10 Am. 517; State v. Gebey, 196 Mo. 104, 93 S. W. 402.

v. State, 29 Tex. App. 437, 438, 16 S. W. 171; Thurmond v. State, 37 Tex. Cr. 422, 35 S. W. 965; Commonwealth v. Trimmer, I Mass. 476; State v. McCoy, 14 N. H. 364; State v. Burgess, 74 N. Car. 272. If the owner is alleged to be unknown to the grand jury, he must be proved to have been so. Sharp v. State, 29 Tex. App. 211, 15 S. W. 176; Logan v. State, 36 Tex.

100 Madison v. State, 16 Tex. App. Cr. 1, 34 S. W. 925, and if this is 435, 441. done, proof of ownership in a person

1 Harrison v. People, 50 N. Y. 518, known is not fatal. People v. Flem520, 521, 10 Am. 517. ing, 60 Hun (N. Y.) 576, 14 N. Y.

78.

2

Rex v. Thompson, 1 Mood. C. C. Supp. 200. If one person has a gen

* Shinn v. Commonwealth, 32 Gratt. (Va.) 899, 910; Davis v. State, 100 Ga. 69, 25 S. E. 921; ante, § 282.

'Glover v. State, 40 So. 354, 146 Ala. 690; Bryan v. State, 49 Tex. Cr. 196, 91 S. W. 580; Elliott Evidence, 3053. If it is laid in one person and

eral and another a special ownership, the ownership may be alleged and proved in either. Trafton v. State, 5 Tex. App. 480, 484. So an allegation of ownership by A. is not sustained by proving a joint ownership in A. and B. State v. Burgess, 74 N. Car. 272, 273.

8

crepancies in proving the name of the owner may be disregarded. The best evidence of ownership is the instrument under which the title is claimed, and it should be produced, though under most circumstances, ownership of personal property may be proved by parol. Direct proof of ownership is not always necessary. Ownership may be inferred from circumstances. Possession of personal property is primary evidence of ownership, if it appears that the alleged owner exercised exclusive control, possession and management over it. An absolute ownership need not be proved. Evidence that the alleged owner held the property as bailee or trustee will suffice.10 If the ownership is laid in a corporation proof of its de facto existence is enough,11 nor need it be shown that the corporation was legally doing business in the state.12

§ 295. Competency of owner of stolen goods as witness-Proof of his non-consent.-At common law the owner was not incompetent because of his interest to testify at the trial, even when he was entitled to restitution on conviction, 18 or to a fine, the value of which exceeded that of the goods stolen.1 The non-consent of the owner must be proved, as it cannot be presumed from the taking.15 His testimony, where he had the exclusive custody and control of the property, and, where he has delegated his power of management to another, the testimony of this agent with his own evidence is primary evidence to prove non-consent.16

Underwood v. State, 72 Ala. 220, 222; State v. Brin, 30 Minn. 522, 524, 16 N. W. 406; Perry v. People, 38 Colo. 23, 87 Pac. 796.

Edwards v. State, 29 Tex. App. 452, 16 S. W. 98.

7 George v. United States, 1 Okla. Cr. 407, 97 Pac. 1052, 100 Pac. 46.

Morris v. State, 84 Ala. 446, 4 So. 912; Ledbetter v. State, 35 Tex. Cr. 195, infra.

ville, 21 Me. 14, 38 Am. Dec. 248; United States v. Jackson, 29 Fed. 503 (mail matter); State V. Brown (Mont.), 99 Pac. 954.

11 Commonwealth v. Whitman, 121 Mass. 361.

12 State v. Hopkins, 56 Vt. 250. 13 State v. Casados, 1 N. & McC. (S. Car.) 91.

1* State v. Pray, 14 N. H. 464, 466; Commonwealth v. Moulton, 9 Mass. 29, 30.

15 State v. Storts, 138 Mo. 127, 39 S. W. 483; Garcia v. State, 26 Tex. 209, 210, 82 Am. Dec. 605; Wilson v. State, 12 Tex. App. 481, 487.

16 State v. Moon, 41 Wis. 684, 686; Bubster v. State, 33 Neb. 663, 664, 50

E

Other evidence is not admissible until the absence of the owner or of his agent has been satisfactorily accounted for." If this is done, non-consent may be proved by circumstantial evidence, 18 provided the circumstances proved are such as exclude every reasonable presumption that the owner consented,1o as, for example, by showing that he was searching for his property soon after the theft, or by the declarations of the accused to the effect that he had parted with possession and that the owner could not have his property.21

20

Evidence that the owner furnished an opportunity to a suspected person to commit a larceny, for the purpose of detecting and arresting him, is inadmissible to show he consented to part with his property.

22

§ 296. Identifying the stolen property.-The identity of the stolen property must be established substantially as laid in the indictment.23 Where cattle are described by age, color, species or brand, these details become material and a variance is fatal.2*

N. W. 953; Jackson v. State, 7 Tex.
App. 363, 364; Wilson v. State, 12
Tex. App. 481.

George v. United States, 1 Okla. Cr. 307, 97 Pac. 1052.

21

People v. Dean, 58 Hun (N. Y.)

"State v. Osborne, 28 Iowa 9; State 610, 12 N. Y. S. 749. v. Morey, 2 Wis. 494, 496.

18 Carroll v. People, 136 Ill. 456, 465, 466, 27 N. E. 18; Rex v. Hazy, 2 C. & P. 458; State v. Skinner, 29 Ore. 599, 46 Pac. 368; Trafton v. State, 5 Tex. App. 480; Files v. State, 36 Tex. Cr. 206, 36 S. W. 93; State v. Porter, 26 Mo. 201, 203, 2 Russ. on Crimes 737; George v. United States, 1 Okla. Cr. 307, 97 Pac. 1052; Ray v. State, 4 Ga. App. 67, 60 S. E. 816; Van Syoc v. State, 69 Neb. 520, 96 N. W. 266; Jordan v. State, 51 Tex. Cr. 646, 104 S. W. 900; State v. Faulk (S. Dak., 1908), 116 N. W. 72.

19 Wilson v. States, 45 Tex. 76, 78, 23 Am. 602; Housh v. People, 24 Colo. 262, 50 Pac. 1036.

Rains v. State, 7 Tex. App. 588. Cf. State v. Porter, 26 Mo. 201, 207;

22 Varner v. State, 72 Ga. 745, 746. See State v. Hull, 33 Oreg. 56, 54 Pac. 159, 72 Am. St. 694n.

23

Hodnett v. State, 117 Ga. 705, 45 S. E. 61.

2 State v. Jackson, 30 Me. 29, 30; Wiley v. State, 74 Ga. 840; Hooker v. State, 4 Ohio 348, 351; Banks v. State, 28 Tex. 644, 647; Bush v. State, 18 Ala. 415, 416; Whart. Cr. Ev., $ 124; Robertson v. State, 97 Ga. 206, 22 S. E. 974; Mizell v. State, 38 Fla. 20, 20 So. 769; State v. Dale, 141 Mo. 284; 42 S. W. 722, 64 Am. St. 513. If a statutory distinction is made between the species of any animal, proof of one is a variance if another is alleged. State v. Buckles, 26 Kan. 237, 241. Otherwise, where no distinction is made. Feople v. Pico, 62 Cal. 50,