State v. . Fisher

RodmaN, J. It is difficult to see anything in the evidence upon which the counsel for the defendant could base the assumption that the taking was open and public, upon which he requested the Judge to instruct the jury that it could not be larceny. The taking was not in the presence of the owner, nor with his knowledge, nor was it public in any just sense of the word. It was from a stranger, none but the two being present, and his consent to part with the possession was obtained by a false pretense of ownership, and with the intent to convert the hog to the defendant’s own use. We think it was not error in the Judge to refuse the instructions asked for. We think also that there was no error in the instructions which he gave. Larceny may be committed in a crowd or in a public street. Persons are convicted daily of stealing in such places. It is true that if the thief is detected or supposes himself suspected, he generally attempts to escape. But if he has no such apprehension; if he thinks the act has been so cleverly done as not to have been observed, he makes no such attempt, or he may, as his Honor says, be bold enough to admit his crime to the owner and refuse to return the goods. Is the act the less criminal on that account ? It is impossible that the guilt of an act can depend upon the conduct of the actor after the act is complete. Such conduct is evidence of the intent, but does not directly and of itself characterize the act. That the defendant put the hog in his pen where it would be more or less open to public view, and that he altered the mark, were, with all the other *81 circumstances of the case, evidence of what his intent was at the time oí the taking, but nothing more. There is no error. Judgment affirmed. Let tl'iis- opinion be certified. Pee OukiaM. Judgment, affirmed..