168 THEFT AND REMOVAL OP ANIMALS. 



larceny, on the design formed at the time the animal is taken, 

 of depriving the owner of his property therein.^ If this de- 

 sign is subsequent to the taking, the oflfense does not amount 

 to larceny. Thus, one who obtains possession of a horse as 

 bailee without any intent at the time to appropriate it, is not 

 guilty of larceny if he subsequently sells it and converts it to 

 his own use.^ So, where one takes a horse intending to ride 

 and afterwards leave and not return it or make any further 

 use of it, this is trespass, not larceny.* This has been held 

 where the taking was to enable the accused to escape punish- 

 ment,^ or pursuit,® or to catch a train,'' or to make off with 

 stolen goods.* On the other hand, it has been held that, 

 where one inadvertently drove away another's lamb with his 

 own and sold it for his own use and denied knowledge of it, 

 the fitrst act was trespass and the resolution to appropriate 

 made it felony.^ 



Where the hiring was fraudulent and done animo furandi 

 the offense, is larceny,^" even if the hirer does not sell or dis- 



' State V. Moore, loi Mo. 316; Starck v. State, 63 Ind. 285; Harrell v. 

 State (Tex. Cr.), 40 S. W. Rep. 799; State v. McKee (Utah), 53 Pac. Rep. 

 733- 



The stealing of domestic animals is, in Oklahoma, a more serious of- 

 fense than grand larceny: Hughes v. Ty. (Okla.), 56 Pac. Rep. 708. 



' Smith V. Com., 96 Ky. 85; Hill v. State, 57 Wis. 377; Morrison v. State, 

 17 Tex. App. 34; Stokely v. State, 24 id. 509; Reg. v. Carter, 47 J. P. 759; 

 Reg. V. Cole, 3 Cox C. C. 212; Rex v. Smith, i M. C. C. 473. 



So, where one kills a cow not intending to steal it, but immediately 

 afterwards steals and appropriates the carcass, he is not guilty of "cattle 

 stealing:" Nightengale v. State, 94 Ga. 395. And the mere failure to 

 comply with the estray laws will not make the use and sale of the animal 

 larceny: McCarty v. State, 36 Tex. Cr. 135. 



* Rex V. Phillips, 2 East P. C. 662. • 



A fortiori, where an intention to return is shown: McDaniel v. State, 

 33 Tex. 419; In re Mutchler, 55 Kan. 164. Cf. State v. Ward, 19 Nev. 297. 



° Dove V. State, 37 Ark. 261. ' State v. York, 5 Harr. (Del.) 493. 



' Lucas V. State, 33 Tex. Cr. 290. 



' Rex V. Crump, i C. & P. 658. » Reg. v. Riley, 6 Cox C. C. 88. 

 "Rex V. Pear, i Leach C. C. 212; Rex v. Tunnard, Ibid. 214 n.; State 

 V, Woodruff, 47 Kan. 151. 



Not, however, where the false pretense simply relates to the purpose 

 for which the animal is wanted: Berg v. State, 2 Tex. App. 148. 



