The felonious intent is the material ingredient of larceny. The existence of the intent is not often capable of direct proof, but is matter of inference from the circumstances attending the caption and asportation. It is said by Blaekstone, “The ordinaiy discovery of a felonious intent is Avhere the party doth it clandestinely; or, being’ charged Avith the fact, denies it. But this is by no means the only criterion of criminality: for, in cases that may amount to larceny, the variety of circumstances is so *534great, and the complication thereof so mingled, that it is impossible to recount all those which may evidence a felonious intent, or animus furandi: wherefore they must be left to the due and attentive consideration of the court and jury.” 2 Cooley’s Black., book 4, 232. If the taking is under claim of title, honestly made and believed, however puerile, or unfounded, or mistaken the claim may be in fact, it is not felonious. The test is not the validity, but the bona fieles of the claim of title. If it is a mere subterfuge to cover a taking with the intent to convert another’s property, it aggravates, rather than relieves from criminality. 'Whether it is bona fide or not, the jury must determine upon a view of all the facts of the case, under the guidance of proper instructions from the court. 2 Bisk. Crim. Law, § 875; Witt v. State, 9 Mo. 663; Vaughn v. Commonwealth, 10 Grattan, 758; Spivey v. State, 26 Ala. 90.
The charge requested seems to have been extracted literally from Wharton’s Crim. Law, § 1786. The sentence is: “There are cases where the taking is no more than a trespass ; as where a man takes another’s goods openly before him, or before other persons, otherwise than by apparent robbery; or, having possessed himself of them, avows the fact before he is questioned.” We do not understand the author as asserting that larceny cannot be committed, when goods are openly taken from the possession of the owner, without force, or even without fraud; nor that because there is no secrecy attending the taking and carrying away, but it is avowed without inquiry, the offense cannot be committed. If such was the law, the bolder and more reckless the criminal, the greater his chances of escaping conviction. Clandestinity and falsehood are usual attendants of larceny ; but it is sometimes committed openly, and boldly avowed. A strong presumption arises, when the taking is open, and there is no subsequent attempt to conceal the property, and no denial but an avowal of the fact, that there is not a felonious intent, which ought to be repelled by clear and convincing evidence, before there is a verdict and judgment of conviction. Vaughn v. Commonwealth, supra, opinion of MottCURE, J. The rule is very clearly stated by Mr. Green-leaf, as we do not doubt it ivas intended by Ur. Wharton to be understood: “If the taking, though wrongful, be not fraudulent, it is not larceny, but is only a trespass; and ought to be so regarded by the jury, who alone are to find the intent, upon consideration of all the circumstances. Thus, if it should appear that the prisoner took the prosecutor’s goods openly, in his or the of *535other persons, and not by robbery; or, having them in possession, avowed the fact before he was questioned concerning them; ” &c., “these circumstances would be. pregnant evidences to the jury that the taking was without a felonious intent, but a mere trespass.” 3 Greenl. Ev. § 157. In affirming as matter of law that the circumstances referred to converted the taking into a mere trespass, the charge is erroneous, and was properly refused. They were “pregnant circumstances,” for the consideration of the jury; but it was their province to determine whether the presumption favorable to the prisoner arising from them was not repelled, in view of all the evidence.
We discover no error in the judgment of the court. It seems to us sufficiently certain, and to conform to the statute. B. C. § 3760.
The judgment must be affirmed.