{
  "id": 1875606,
  "name": "Powell vs. The State",
  "name_abbreviation": "Powell v. State",
  "decision_date": "1879-11",
  "docket_number": "",
  "first_page": "693",
  "last_page": "696",
  "citations": [
    {
      "type": "official",
      "cite": "34 Ark. 693"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T18:09:16.201435+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Powell vs. The State."
    ],
    "opinions": [
      {
        "text": "Eakin, J.\nAppellant was indicted, tried and convicted of grand larceny, and sentenced to the penitentiary for one year.\nIt was shown that appellant was the general servant of S. N. Marshall, the owner of the property taken, which consisted of a lot of tools. They were kept in a room, partly used as a stable, in which a horse was kept, which it was appellant\u2019s duty to take care of. He had access to the tools at his pleasure, and the right-, by virtue of his employment, to use them at any time; although no directions were given him to use them, nor was any occasion shown for his using them. lie took them without the owner\u2019s consent, and feloniously converted them to his own use. This is brought up by agreed statement, made part of the record in the bill of exceptions, and there was no other evidence.\nThe court refused, on prisoner\u2019s motion, to instruct the jury that if they believed he was a general servant of the owner, and, by virtue of his employment, had a general possession of and right to use the tools, and that if he took them away he would be guilty of embezzlement, and not of larceny. But, on the other hand, of its own motion, did charge the jury that a servant could not commit the crime of embezzlement of property coming to him from the possession of the master, but that to constitute the crime the effects must \u201c come to the servant first, in the course of his employment from the hands of another person, other than his master.\u201d\nA new trial, for supposed error in refusing and giving instructions, was asked for'and refused.\nThe possession of the servant is that of the master. The former has a mere custody. If he appropriates the property of the master to his Own use, with intent to steal, it is larceny at common law. The trespass occurs when he changes his custody of his master\u2019s property into an adverse possession in himself, with a felonious intent. This remains the law under our statute, defining larceny as \u201c the felonious stealing, taking, carrying, riding or driving away the personal property of another.\u201d The evidence in this case made out the offense of \u201c larceny,\u201d and the court properly refused the instructions asked.\nCounsel for appellant urges that the statute has made that embezzlement in regard to the servant which before was larceny; and relies upon the case of Fulton v. State, in 13 Ark., show that the crimes must be distinctly charged, and that a conviction for larceny can not be had upon a state of facts which constitute the statutory crime of embezzlement.\nSection 1867 Gantt\u2019s Digest provides, among other things, that if any servant of any private person or corporation \u201c shall embezzle or convert to his own use, or shall take, make way with, or secrete with intent to embezzle or convert to his own use, without the consent of his master or employer, any money, goods, etc., * * * belonging to any other person, which shall have come to his possession, or under his care or custody, by virtue of such employment or office, he shall be deemed guilty of larceny, and, on conviction, shall be punished as in case of larceny.\u201d\nThis section was made also to apply to clerks, certain sorts of apprentices, officers and agents of incorporated companies, etc., and was manifestly intended to afford the protection of the penalties against larceny in cases which before were not so punishable, by declaring them eases of embezzlement and punishing them as if they were larceny.\nIt was not intended to change a crime, which had been larceny at common law, into another name, and require it to be indicted as \u201c embezzlement.\u201d\n\"We do not now adopt the instruction given by the court of its own motion as technically correct. The intention of the statute was to make many acts punishable as larceny which had been formerly only embezzlement. It is not confined to servants, and may embrace some cases where the property came to\" the possession of the agent, clerk or servant from the employer. This is the New York view of a similar statute. (Bishop on Crim. Law, sec. 366, 6th ed., n. 1.) The exact scope of the statute will be considered when the occasion, arises.\nThe instruction given in the case before us was speculative. There was no evidence of any other possession of the defendant than the mere custody of his master\u2019s tools. To steal them was plain larceny, and it was admitted he did. He was properly convicted, and no proper instruction would have justified any other verdict.\nAffirm.",
        "type": "majority",
        "author": "Eakin, J."
      }
    ],
    "attorneys": [
      "Oliphint, for appellant.",
      "Henderson, Attorney General, contra."
    ],
    "corrections": "",
    "head_matter": "Powell vs. The State.\n1. Larceny : Conversion Toy servant of master's goods.\nThe servant has a mere custody of the master\u2019s goods. His possession is that of the master. If he appropriates them to his own use, with intent to steal, it is larceny at common law. The trespass occurs when he changes his custody of his master\u2019s goods into an adverse possession in himself with a felonious intent.\nAPPEAL from Pulaski Circuit Court.\nHon. J. \u201cW\\ Martin, Circuit Judge.\nOliphint, for appellant.\nHenderson, Attorney General, contra."
  },
  "file_name": "0693-01",
  "first_page_order": 695,
  "last_page_order": 698
}