THE FELONIOUS INTENT. 171 



owner had forfeited his title to it f^ where one led a horse be- 

 longing to himself from a livery stable where it had been 

 placed by a constable who had levied upon it under a writ of 

 attachment ;^^ where one who had fraudulently exchanged a 

 horse which was not his, afterwards took it from the posses- 

 sion of the one with whom he had made the exchange, with- 

 out the latter's consent, with the bona Me intention of return- 

 ing it to the true owner ;^^ where one drove away and sold 

 stock, believing that he owned it;^^ where a boy took to his 

 mother a horse resembling hers which was used and loaned f 

 where one took possession of a horse which had been running 

 astray for years, without any known owner ;^^ where one 

 took and re-marked a sheep believing it to be his own;^^ 

 where one killed hogs under the authority of a person whom 

 he believed to be the owner .^^ 



52. The Taking:.— The animal must be taken from the pos- 

 session of the owner into that of the accused in order to con- 

 stitute larceny. In large grazing countries animals on their 

 accustomed range have been universally held to be in the con- 

 structive possession of their owner f^ so also where they are 

 not on the owner's range, if they are not in the actual pos- 

 session and control of another.^® And, in general, an animal 

 astray and at large is yet in the constructive possession of the 

 owner, so that one taking it is guilty of larceny.^^ 



" Debbs V. State, 43 Tex. 650. " Clarke v. State, 41 Neb. 370. 



'■' Gooch V. State, 60 Ark. 5. ™ Peo. v. Devine, 95 Cal. 227. 



™ Gardiner v. State, 33 Tex. App. 692. =' Johnson v. State, 36 Tex. 375. 



'" Barnes v. State, 103 Ala. 44. 



'' Lawrence v. State (Tex. Cr.), 30 S. W. Rep. 668. 



'* Moore v. State, 8 Tex. App. 496; Huffman v. State, 28 id. 174; Jones 

 V. State, 3 id. 498; Deggs v. State, 7 id. 359; McGrew v. State, 31 Tex. 

 Cr. 336. 



" Bennett v. State, 34 Tex. Cr. 216. 



" Burger v. State, 83 Ala. 36; Peo. v. Kaatz, 3 Park Cr. (N. Y.) 129; 

 State V. Martin, 28 Mo. 530; State v. Everage, 33 La. Ann. 120; Borer 

 V. State (Tex. Cr.), 28 S. W. Rep. 95 1- 



A statute making it an offense to "take up and use" any horse without 

 the owner's consent was held to relate only to a horse running at large, 



