WHO IS A SERVANT.-Where one employed by a merchant "to sweep out the store, and wait about the store, but not as clerk," is authorized by the merchant to take a lot of shoes and sell them during his visit to a neighboring town, and he does sell them for a less price than he was authorized to receive, and converts the money to his own use, he is a servant within the meaning of the act, and guilty of embezzlement. Costin, 89-511.

29. HORSE STEALING.

Sec. 614 (3505). Larceny, of horse.

If any person shall steal any horse, mare, gelding or mule he shall suffer imprisonment at hard labor for not less than five nor more than twenty years, at the discretion of the court. A count under this section may be joined in a bill of indictment with a count under section three thousand five hundred and nine.

Code, s. 1066; 1868, c. 37, s. 1; 1879, c. 234, s. 2; 1866-7, c. 62.

INDICTMENT ARREST OF JUDGMENT.-Where there is a general verdict of guilty on an indictment charging in the first count the larceny of a horse, and in the other the receiving of the same, knowing it to have been stolen, and both counts conclude against the statute, no judgment can be pronounced, since the punishment is different for each offense, and the court can not determine upon which count to give judgment. Sections 379, 375. (The Code, sections 1066, 1074). Goings, 98-766.

STEALING AND RECEIVING HORSE.-A count for the larceny of a horse, concluding at common law, may be joined with a count for the statutory offense of receiving same, and the indictment thus drawn will warrant a general verdict of guilty. Lawrence, 81-522.

Where a horse is stolen in one state and carried into another this will not make larceny in the latter state. Brown, 2—100.

Sec. 615 (3509). Temporary use of horse.

If any person shall unlawfully take and carry away any horse, gelding, mare or mule, the property of another person, secretly and against the will of the owner of said property, with intent to deprive the owner of said property of the special or temporary use of the same, or with the intent to use said property for a special or temporary purpose, the person so offending shall be guilty of larceny, and punished by imprisonment in the state's prison or county jail not less than four months nor more than ten years, and fined in the discretion of the court: Provided, this section shall not be construed to repeal or in any way affect section three thousand five hundred and five.

Code, s. 1067; 1879, c. 234, s. 1.

An indictment for stealing the temporary use of a horse is not defective because it charges the stealing of the temporary use of a buggy also. Darden, 117-697.

30. LARCENY OF LIVE STOCK.

Sec. 616 (3504). Live stock, felonious injury equal to.

If any person shall pursue, kill or wound any horse, mule, ass, jennet, cattle, hog, sheep or goat, the property of another, with the intent unlawfully and feloniously to convert the same to his own use, he shall be guilty of a felony, and shall be punishable, in all respects, as if convicted of larceny, though such animal may not have come into the actual possession of the person so offending.

Code, s. 1068; 1866, c. 57.

INDICTMENT. An indictment charging the killing of a "certain cattle beast," is sufficiently definite in stating the kind of cattle killed. Credle,

91-640.

EVIDENCE.-Parol evidence of the contents of a notice posted by the prosecutor, forbidding all persons from trading for or buying his cattle, is competent on the trial for killing cattle under this section, since such notice is entirely collateral to the issue, and defendant is not a party to it. Credle, 91-640.

KILLING DONE WITHOUT SECRECY.-Evidence that the killing was done openly and without secrecy may be submitted to the jury on the question of a felonious intent, but it does not necessarily disprove it. Credle, 91-640.

STOCK LAW. The fact that the stock law prevails in a county, is no defense to an indictment for injury to stock running at large. Rivers, 90— 738.

31. GROWING CROPS.

Sec. 617 (3503). Growing crops.

If any person shall steal, or feloniously take and carry away any maize, corn, wheat, rice, or other grain, or any cotton, tobacco, potatoes, peanuts, pulse, or any fruit, vegetable, or other product cultivated for food or market growing, standing or remaining ungathered in any field or ground, he shall be guilty of larceny, and punished accordingly.

Code, s. 1069; 1811, c. 816; R. C., c. 34, s. 21; 1868-9, c. 251.

INDICTMENT-UNGATHERED FIGS.-An indictment for the larceny of ungathered figs which fails to allege that they were "cultivated for food or market," is fatally defective. Liles, 78-496.

Where the indictment simply charges the stealing of "seed cotton and lint cotton," an instruction that if the jury believe that the cotton was gathered from the field with a felonious intent, defendant would be guilty, is erroneous. To render such evidence and charge proper the indictment should have been drawn under the statute, and describe the crop as "growing, standing or ungathered" in the field, and cultivated for food or market. Bragg, 86-687.

WATERMELON.—An indictment under this statute for stealing a watermelon, which fails to allege that it was cultivated for food or market, is fatally defective, since the word watermelon is not used in the statute. Thompson, 93-537.

UNGATHERED CORN.-An indictment for stealing ungathered corn need not allege that the crop was "cultivated for food or market," as these words of the statute are limited to "any fruit, vegetable or other product," and do not apply to the articles specifically named. Ballard, 97-443.

CABBAGE.-An indictment charging the larceny of cabbage standing ungathered in the field, and concluding at common law, can not be sustained. Foy, 82-679.

SEED COTTON AND LINT COTTON.-Where the indictment simply charges the stealing of "seed cotton and lint cotton," an instruction that if the jury believe that the cotton was gathered from the field with a felonious intent, defendant would be guilty, is erroneous. To render such evidence and instruction proper the indictment should have been drawn under the statute, and describe the crop as "growing, standing or ungathered" in the field, and cultivated for food or market. Bragg, 86-687.

On indictment for larceny of a growing crop the property may be laid in the tenant instead of the landlord. Higgins, 126-1112.

32. WOOD AND GROWING TIMBER.

Sec. 618 (3511). Wood or other property on land.

If any person, not being the present owner or bona fide claimant thereof, shall willfully and unlawfully enter upon the lands of another and carry off or be engaged in carrying off any wood or other kind of property whatsoever, growing or being thereon, the same being the property of the owner of the premises, or under his control, keeping or care, such person shall, if the act be done with felonious intent, be guilty of larceny, and punished as for that offense; and if not done with such intent, shall be guilty of a misdemeanor.

Code, s. 1070; 1866, c. 60.

TITLE MAY BE SHOWN IN A THIRD PERSON.-A tenant who leases a certain portion of a larger tract of land, on indictment against him for cutting timber upon the land outside of that embraced by his lease, is entitled to show title to the land in a third person, and that he entered and cut the timber, after having been forbidden to cut timber outside of his lease, as the agent or employee of such third person, since the purpose of the statute is not to prevent the taking of personal property from the land by some person other than the owner, and one who cuts and carries away timber as the servant of the owner is not guilty. Boyce, 109-739.

TENANT NOT ESTOPPED TO DENY LANDLORD'S TITLE.-The tenant in such case is not estopped to deny his landlord's title to that part of the tract not embraced in his lease and from which the timber was cut, since he had no possession nor right of possession beyond the boundary of the land leased to him. Boyce, 109-739.

OWNER NOT INDICTABLE THOUGH NOT IN POSSESSION.-The owner, or bona fide claimant, is not indictable for cutting and carrying away timber from the land, though he is not in possession. The statute does not prohibit the simple invasion of the prosecutor's possession. Boyce, 109–739.

This statute does not embrace or contemplate a taking and carrying away of money; it means only such property as was not, at common law, subject to larceny. Vosburg, 111-718.

BRASS RAILING.-Brass railing attached partly to the freehold and partly to an engine, the engine being attached to the freehold, comes within the scope and purport of Revisal, section 3511, providing that if any person shall enter on the lands of another and carry off any "wood or other kind of property whatsoever, growing or being thereon" with felonious intent, he shall be guilty of larceny. Beck, 141-829.

33. PUBLIC RECORDS.

Sec. 619 (3508). Records, registration books; indictment for.

If any person shall steal, or for any fraudulent purpose shall take from its place of deposit for the time being, or from any person having the lawful custody thereof, or shall unlawfully and maliciously obliterate, injure or destroy any record, writ, return, panel, process, interrogatory, deposition, affidavit, rule, order or warrant of attorney or any original document whatsoever, of or belonging to any court of record, or relating to any matter civil or criminal, begun, pending or terminated in any such court, or any bill, answer, interrogatory, deposition, affidavit, order or decree or any original document whatsoever, of or belonging to any court or relating to any cause or matter begun, pending or terminated in any such court, every such offender shall be guilty of a misdemeanor; and in any indictment for such offense it shall not be necessary to allege that the article, in respect to which the offense is committed, is the property of any person or that the same is of any value. And if any person shall steal, or for any fraudulent purpose shall take from the register's office, or from any person having the lawful custody thereof, or shall unlawfully and willfully obliterate, injure or destroy any book wherein deeds or other instruments of writing are registered, or any other book of registration, or record required to be kept by the register of deeds, or shall unlawfully destroy, obliterate, deface or remove any record of proceedings of the board of county commissioners, or unlawfully and fraudulently abstract any record, receipt, order or voucher or other paper-writing required to be kept by the clerk of the board of commissioners of any county, he shall be guilty of a misdemeanor.

Code, s. 1071; R. C., c. 34, s. 31; 8 Hen. VI., c. 12, s. 3; 1881, c. 17.

INDICTMENT VARIANCE.-An allegation that defendant stole a fi. fa. “issued from the superior court office" is not sustained by proof that the fi. fa. was made out, but retained by the clerk, at the instance of defendant, until the amount was paid to him. McLeod, 50 (5 Jones), 318.

INDICTMENT OBSCURITY.-An indictment for larceny charging in one count the thing stolen to be "a certain writ of fi. fa. belonging to the superior court;" in another count "a certain process of and belonging to the superior court," and in a third "a certain record of and belonging to the superior court," is too vague to authorize a conviction under it. McLeod, 50 (5 Jones), 318.

Sec. 620 (3510). Wills.

34. LARCENY OF WILLS.

If any person, either during the life of the testator or after his death, shall steal or for any fraudulent purpose destroy or conceal any will, codicil or other testamentary instrument, he shall be guilty of a misdemeanor.

Code, s. 1072; R. C., c. 34, s. 32.

35. GRAND AND PETIT LARCENY.

Sec. 621 (3500). Distinction between grand and petit, abolished.

All distinctions between petit and grand larceny, where the same hath had the benefit of clergy, is abolished; and the offense of felonious stealing, where no other punishment shall be specifically prescribed therefor by statute, shall be punished as petit larceny is: Provided, that in cases of much aggravation, or of hardened offenders, the court may, in its discretion, sentence the offender to the state's prison for a period not exceeding ten

years.

Code, s. 1075; R. C., c. 34, s. 26.

36. LARCENY OF MONEY AND BANK-NOTES.

Sec. 622 (3251). How money, bank notes, etc., described in.

In every indictment in which it shall be necessary to make any averment as to the larceny of any money, or United States treasury note, or any note of any bank whatsoever, it shall be sufficient to describe such money, or treasury note, or bank note, simply as money, without specifying any particular coin, or treasury note, or bank-note; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin, or treasury note, or bank-note, although the particular species of coin, of which such amount was composed, or the particular nature of the treasury note or bank-note, shall not be proven.

Code, s. 1190; 1876-7, c. 68.

Inasmuch as money is the measure of values, a charge in an indictment of taking "ten dollars in money" is an allegation of taking the value of ten dollars. Brown, 113-645.

A charge of the theft of "$5 in money of the value of $5" is good, and is sustained by proof of the theft of any amount of coin or treasury or bank note. Carter, 113-639.

Where, on indictment for larceny of money, there was evidence that on the second day after the imprisonment of defendant a bag of money was found lying exposed in a public lot, and there was no evidence tending to show that defendant put it there, it was error to refuse to charge that the finding of the money was not a circumstance to be considered against the defendant. Austin, 129-534.