Gardiner v. State
Gardiner v. State
Opinion of the Court
There is no conflict in the evidence of this case. The appellant was indicted in the district court for stealing a horse. Much of the evidence consists in what he said himself of the transaction. The account he gave of the matter was plausible and reasonable, and showed no fraudulent intention in taking the animal.
The statute (Paschal’s Digest, Art. 1688) says: Ho person shall in any case be convicted of any offense committed before he was of the age of nine years; nor of any offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.
The evidence shows that the boy who appeals here had not, at the supposed commission of the offense, attained his thirteenth year, and the statement of facts shows no effort on the part of the State to prove his discretion.
Had the appellant been of the years of discretion, the evidence does not show that he had any felonious intent in taking the animal. He appears to have been sent by his mother to hunt for a horse that had strayed from her. The boy found the horse which he is accused of stealing, and appears to have thought the horse was that of his mother, which had been gone for some eighteen months.
When told that the horse belonged to Werner he said he would see, and would not take the horse unless it belonged to his mother. He afterwards appears to have loaned the horse somewhat heedlessly to a friend, to ride to an adjoining county; and the horse was" found in the possession of his friend and traced back to his possession; and he gives an account of the, matter which falls very far short of making it a case of larceny.
Appellant’s counsel appears to have mistaken the law in objecting to the venue. Had the horse been stolen in one county and taken into another county of the State, an indictment could have been preferred in any county where the asportation of the animal had been carried on.
The .judgment of the district court is reversed and the cause dismissed.
Reversed and dismissed.
Reference
- Full Case Name
- Ream Gardiner v. State
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- 1. if the State puts the defendant’s declarations m evidence if Is hound By them, unless they are proved to Be false. 2. Under oar statute, Paschal’s Digest, Article 1638, a youth under thirteen years of age could not be legally convicted of an offense, when no evidence was adduced by the State to prove that he had “discretion sufficient to understand the nature and illegality of the aet constituting the offense.” $. A boy, being directed by his mother to find and recover her horse, which had been missing for eighteen months, found and took up a horse which much resembled his mother’s. He was told by parsons in the neighborhood that the horse belonged to a man named Werner, whereupon be said h.e would see, and would not take the horse unless, be belonged to bis mother. Without inquiry, however, he took the horse home to his mother, who was unable to say whether it was her horse or not; but the boy, still claiming him as such, used and bitched him publiely in the streets of a large town, loaned him to a friend to ride to an adjoining county, and • in no respect concealed his possession of him, Bc7d, irrespective of the youth of the accused, that the evidence was not sufficient to show a felonious intent, or to sustain a conviction for theft. 4. An indictment for theft may be preferred and sustained in any county wherein there was an asportation of th'e property, regardless of where it was taken.