Morrisette v. State

SOMERYILLE, J. Where a defendant has once been convicted under an indictment for a criminal offense, and this judgment of conviction has been set aside on motion for a new trial, or has been arrested, or reversed on appeal or writ of error, this is not regarded as a putting of the accused in legal jeopardy, so as to protect him against a second trial upon the same charge subsequently preferred against him. Such action, being taken at the instance of the accused, is an express waiver of his constitutional privilege not to be placed in jeopardy a second time for the same offense. — Kendall v. The State, 65 Ala. 492; Jeffries v. The State, 40 Ala. 381: Cooley’s Const. Lim. (5th Ed.), 401-402; Wharton’s Cr. Pl. & Pr. (8th Ed.), § 510. The plea of former jeopardy showed that a new trial had been granted, and the first judgment of conviction had been set aside on motion of the defendant. It was, for this reason, defective, if not for other reasons needless tó be mentioned, and the demurrer to it was properly sustained. 2. The crime of larceny can not be perpetrated without a criminal intent — an animus furandi, or intent to steal. Where one, therefore, takes the property of another, honestly believing that he has a legal right to it — or, in other words, under a bona fide claim of right — there can be no larceny, although the taking may constitute an inexcusable trespass. Morningstar v. The State, 55 Ala. 148; 2 Bish. Cr. Law, (7th Ed.) § 851; Roscoe’s Cr. Ev. (7th Ed.) 646*; Johnson v. The State, 73 Ala. 523. If the first charge requested by the defendant had' asserted this principle, it would have been a proper exposition of the law. It is not sufficient, however, for the taker to have a mere “impression” that he has a claim of right to property, in order to exempt him from the charge of larceny in the taking of it. This might amount to a vague notion, unaccompanied with honesty of conviction. The charge was erroneous in asserting this proposition, and its refusal was free from error. There was no evidence tending to support the second charge requested by the defendant, and it was properly refused because abstract. 3. We discover, however, a clerical error in that part of the judgment which fixes the additional term of imprisonment to pay costs. It is apparent, from mathematical calculation, that this period should be one hundred and thirty-four days instead of one hundred and forty-five, as stated in the judgment. We omit from this a fraction of seven-eighths of a day additional, in view of the rule that the law takes no cognizance of mere fractional parts of a day, in cases of this character. This much is due to that strict construction of penal laws which is universally held to prevail, always working favorably to the liberty of [75] the citizen. This error will be corrected in this court, at the cost of the appellant; and, as thus corrected, the judgment will be affirmed. There is nothing in the exception taken to the only ruling of the court made on the admission of evidence, and we do not understand it to be insisted on by counsel. Judgment affirmed.