176 THEFT AND REMOVAL OF ANIMALS. 



was held that as each taking in the latter county was a separ- 

 ate felony the prosecutor's counsel must elect on which to 

 proceed.^® 



A conviction of larceny for carrying one head of cattle into 

 another county was held no bar to a prosecution for another 

 head of cattle carried at the same time to the same place but 

 belonging to a different owner and stolen at another time and 

 place, on the ground that the rule of such driving constitut- 

 ing one theft was a fiction of the common law.®'' The animal 

 when brought into the second county must have been at the 

 time under the control of the thief.®* 



The subject of the killing and removal of animals -ferae 

 naturcE, in so far as they do or do not constitute one continu- 

 ous act, has been already considered.®^ 



54. Ownership; Want of Consent — The owner's want of con- 

 sent to the taking is one of the essential ingredients in the 

 crime of larceny.'^® The "owner" in this sense need not 

 necessarily be the one who has the legal title to the animal. 

 For example, one in actual possession of a horse so as to be 

 responsible to the true owner, is the owner as against one 

 who tries to steal it.''^ So, where an estray is in the posses- 

 sion of one over whose land it ranges, his want of consent 

 must be proved.''^ ^^d, as against the defendant, one who 

 has taken up an estray has property in the horse to his full 

 value and not merely for charges for posting.^* To render the 

 taking larceny, it is not necessary that the defendant should 

 have known at the time who the owner was: he is guilty 

 where his original intent was felonious and he afterwards ap- 

 propriates the animal to his own use, knowing it to be an 



"' Rex V. Smith, Ry. & Moo. 295. " Harrington v. State, supra. 



" Lucas V. State, 62 Ala. 26. ™ See § 6, supra. 



" I Whart. Crim. Law § 883. As to wilfully driving or riding an animal 

 without the owner's consent, see Duckett v. State, 93 Ga. 415. 



" Blackburn v. State, 44 Tex. 457. And see Wilson v. State ^7 Tex 

 Cr. 272. 



" Spruill V. State, 10 Tex. App. 695. " Quinn v. Peo, 123 111 333 



