The defendant was indicted for the larceny of an automobile, which the state contended was feloniously taken from A.J. Williams, while the defendant, admitting the taking, insisted that the taking was without felonious intent.
"The most approved definition of larceny at common law is given by Mr. East, in his Crown Laws: 'The fraudulent or wrongful taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to his own use, and make them his own property, without the consent of the owner." 2 East, 524; 3 Greenl. Ev. § 150; Holly v. State, 54 Ala. 238.
Secrecy in the taking is not a necessary ingredient of larceny. Carl v. State, 125 Ala. 89, 28 So. 505.
If the defendant came into possession of the car with the consent of Williams, for the sole purpose of trying it out for a specified time, and the defendant changed the character of the possession, having at the time the felonious intent, it would be larceny; or, if after the car had been delivered by Williams to defendant for the purpose of trying it out, the defendant carried the car back and delivered it at Williams' garage, and afterwards took the car and carried it away, having at the time the animus furandi, or, as the civil law expresses it, lucri causa, he would be guilty of larceny. In each of these cases the legal possession remained in Williams, and if the defendant, having the bare custody of the car, diverted the car from the purpose for which the owner had turned it over to him, it was a trespass, and if done with the felonious intent, it was larceny. Holbrook v. State, 107 Ala. 154, 18 So. 109, 54 Am. St. Rep. 65.
The various excerpts from the court's oral charge, when considered with the whole charge, are in line with the foregoing, and are without error.
The defendant, on cross-examination of Williams, had brought out a part of the conversation between Williams and Hopkins, and on redirect examination the state was allowed to bring out the entire conversation. This was not error.
The defendant having testified to a part of a conversation had between himself and Williams at the power plant, the state was properly allowed to bring out anything else said in the same conversation.
The court refused to give at the request of the defendant in writing the following charge:
"If there is a probability of the defendant's innocence, then you should find him not guilty."
The refusal to give this charge is held to be reversible error in the following cases: Adams v. State, 175 Ala. 11,57 So. 591; Fleming v. State, 150 Ala. 19, 43 So. 219; Bones v. State, 117 Ala. 138, 23 So. 138; Whitaker v. State,106 Ala. 30, 17 So. 456; Croft v. State, 95 Ala. 3, 10 So. 517; Bain v. State, 74 Ala. 38; Shaw v. State, 125 Ala. 80,28 So. 390; Henderson v. State, 120 Ala. 360, 25 So. 236; Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep. 28; Nordan v. State, 143 Ala. 13, 39 So. 406.
This charge may be differentiated from charge G, in McClain v. State, 182 Ala. 74, 62 So. 241, where the court held to be a bad charge, the following:
"If the jury believe after a consideration of the evidence or any part thereof, that there is a probability of defendant's innocence, then they should acquit him,"
— for the reason that the court in the McClain Case predicated upon a part of the evidence, while the charge in the instant case has no such limitations.
But in Buckhanon v. State, 12 Ala. App. 56, 67 So. 718, the identical charge was held to be bad because it failed to qualify probability by the word reasonable, and in Davis v. State, 188 Ala. 59, 66 So. 67. Sayre, J., held the charge to be bad because it did not predicate the probability of innocence as arising out of the evidence. The opinion in the Davis Case does not in express terms overrule the long line of decisions to the contrary, but we are bound by the last utterance of the Supreme Court, and hence must hold that the charge was properly refused.
It is the law that the presumption of innocence is an evidentiary fact, and is a presumption which remains with the defendant until the state has shown by the testimony, beyond a reasonable doubt, that the defendant is guilty as charged, but charge 9 as framed is involved, and as requested was properly refused.
Charge 4 as requested fails to fix the time at which the contract of sale was made.
Charge 6 ignores the principle set out in the foregoing opinion, and was therefore bad.
Charge 7 fails to fix the time of sale that would be necessary to acquit the defendant of crime.
There was no variance between the allegations and proof, and hence the charges, including the affirmative charge predicated upon this fact, were properly refused.
Charge 11 is covered by given charge 4 and the oral charge of the court. Charge 12 is covered by given charges 1, 3, and 4.
Charge 15 relates to the second count of the indictment, which was withdrawn. *Page 561 Charges 13, 14, 16, and 17 were all fully covered by other given charges, and by the oral charge of the court.
There is no error in the record, and the judgment is affirmed.
Affirmed.