It is the animo furancU that .in general distinguishes larceny from trespass da bonis asportatis. Oases occur where the talcing, though wrongful, amounts only to a trespass, as where it is done openly, in the presence of the owner or other persons but without felonious intent. Such intent, however, may exist without the element of secrecy which usually characterizes the offense; and in cases of this character, unless the evidence be such that no inference of felonious intent can be drawn from it, the existence of such intent is for the determination of the jury and not for the court. — Johnson v. State, 73 Ala. 523; Rountree v. State, 58 Ala. 381; Green State, 68 Ala. 539; Sims v. State, 99 Ala. 161; 3. Greenl. Ev. § 157.
In McMillin v. State, 53 Ala. 531, it was said that “a strong presumption arises Avhen the talcing 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 judgment of conviction.”
The last named case is in part overruled in Johnson v. State, supra, but it is probable that the opinion in the latter case does not negative the existence of the presumption stated in MaMillin’s Gase which has been recognized also in Cobb v. State, 100 Ala. 22. The presumption, it. will be noticed, is predicated upon the absence of any subsequent concealment or attempt to conceal the property as well as 'an open talcing. The openness of the original talcing is not enough to raise the presumption referred to. — Talbert v. State, 121 Ala. 33.
As shown by the evidence in the present case the defendant and Garner were employed by Watson as colahorers in gathering corn from Watson’s field. Garner was also employed to see if any corn was being stolen. While gathering corn defendant took in a basket from the heaps on the ground, one and a half or two bushels of corn, carried it across a creek and returned with the *52basket empty. Garner was present when this was done and defendant announced to him his intention of taking the corn. Garner afterwards secreted himself and saw' the defendant carry corn in his hands and deposit it with that carried in the basket. At that place the crop was ungathered, and there the corn was found nest day among some weeds and grass. Defendant, when questioned about it, did not deny taking.
The State elected to prosecute only for larceny of the corn carried in the basket. The defendant’s conduct in placing the corn in weeds and grass at a place away from where the work was being done, was a circumstance proper to be left to the jury in determining whether there was an attempt on defendant’s part to conceal from Watson the fact that the corn was taken, and whether in doing so the defendant was actuated by felonious intent. Charges 1, 2 and 3 would have withdrawn that question from the jury, and were therefore properly refused. Charge 4 was abstract, since there was no evidence that the corn was in the possession and control of Garner. His employment was only to perform services about the crop, while the possession and control remained with the owner, Watson.
We find no error in the record, and the judgment will be affirmed.