necessity for defendant to kill him, and when all the evidence introduced shows that the defendant was the aggressor.*** And even if intoxication of the deceased may be considered on the question of self-defense or necessity for the defendant to take the former's life, evidence that deceased had a jug of whiskey at home, or carried one home the day of the homicide, is irrelevant, and does not tend to show he was intoxicated at the time of the trouble. It is also held in the same case that the defendant should not be allowed to testify why he had the pistol on the occasion of the difficulty. Hearsay evidence not falling within any of the exceptions, limitations or qualifications of the hearsay rule, is incompetent ;*75 and dying decelarations have been held inadmissible to prove prior difficulties or threats.*7*

§ 3046. Weight and sufficiency-Variance.-Proof of a killing, in any manner or by any means, that correspond substantially with the indictment, is sufficient.77 Thus, proof of a shooting with a pistol has been held sufficient to sustain an averment of shooting with a gun and vice versa.478 And proof of killing, with a dagger or bowie knife will sustain an averment of death from stabbing with a dirk, sword or similar weapon.479 But proof of killing with a knife is not sufficient to sustain an allegation of killing by shooting and, as a rule, where the killing is charged to have been with a certain weapon, proof of an entirely different kind of a weapon is held a fatal variance.480 Difference in the spelling of the name will be disregarded when the name as proved is idem sonans with that alleged.481 Circumstantial evidence of the identity of deceased, which leaves no room for reasonable doubt, is sufficient.482 And circumstantial evi

474 Gregory v. State, 140 Ala. 16, 37 United States, 170 U. S. 481, 18 Sup. So. 259. Ct. 689; Terry v. State, 120 Ala. 286, 25 So. 176.

475 Forman v. Commonwealth, 9 Ky. L. R. 759, 6 S. W. 579; State v. Terrell, 12 Rich. L. (S. Car.) 321; Brown v. People, 17 Mich. 429; Stephens v. State, 20 Tex. App. 255.

476 Binns v. State, 46 Ind. 311; Jones v. State, 71 Ind. 66; State v. Wood, 53 Vt. 560; State v. Moody, 18 Wash. 165, 51 Pac. 356; Sullivan v. State, 102 Ala. 135, 15 So. 264, 48 Am. St. 22; ante, Vol. I, § 336.

4 Commonwealth v. Webster, 5 Cush. (Mass.) 295; State v. Smith, 32 Me. 369; see also, Andersen v.

478 Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; State v. Lautenschlager, 22 Minn. 514; Turner v. State, 97 Ala. 57, 12 So. 54.

479 Hernandez v. State, 32 Tex. Cr. App. 271, 22 S. W. 972.

480 Witt v. State, 6 Cold. (Tenn.) 5. 481 State v. Lincoln, 17 Wis. 597; Girous v. State, 29 Ind. 93; State v. Witt, 34 Kans. 488, 8 Pac. 769.

452 State v. Dickson, 78 Mo. 438.

dence may be sufficient even as to the corpus delicti.483 Convictions have been upheld when only charred or mutilated parts of the body have been found, the deceased, having been burned, cut in pieces, or subjected to the action of acid.484 And the fact of death may be proved by circumstantial evidence, when that is the best evidence obtainable. So proof of premeditation need not be direct and positive, but may be deduced from all the facts attending the killing. 486 But it has been held that where it is probable that the death may have been due to natural causes or to accident, a conviction of murder in the second degree even cannot stand.487 And it has also been held that if it appears that the instrument used would not probably cause death, the jury should be limited to finding no greater degree of crime than manslaughter.488 To warrant a conviction of murder in the first degree it has been said that express malice must be proved by such evidence as is reasonably sufficient to satisfy the jury of its existence.489 But it has been held that conviction of a defendant of murder in the first degree was warranted by evidence showing the death of deceased by a pistol shot, the presence of defendant at or about the time of the shooting, his previous threats, immediate flight, and subsequent arrest in a neighboring state. And it has been held that where, after a violent attack, death soon ensued, the jury were justified in finding an intent on the part of the assailant to kill.491 And where, on a conviction for murder, the evidence warrants the jury in believing that defendant killed deceased intentionally, and

453 As to evidence of the corpus delicti held sufficient, see, People v. Moran, 144 Cal. 48, 77 Pac. 777; Wilson v. State, 140 Ala. 43, 37 So. 93; Edwards v. Territory, (Ariz.) 76 Pac. 458; as to identity of accused, see, People v. Buckley, 143 Cal. 375, 77 Pac. 169; Commonwealth v. Salyards, 158 Pa. St. 501, 27 Atl. 993.

484 Stocking v. State, 7 Ind. 326; Commonwealth V. Williams, 171 Mass. 461, 50 N. E. 1035; People v. Alviso, 55 Cal. 230; Anderson v. State, 24 Fla. 139, 3 So. 884; Lancaster v. State, 91 Tenn. 267, 18 S. W. 777; State v. Smith, 9 Wash. 341, 37 Pac. 491.

498 Yates v. State, 26 Fla. 484, 7 So. 880; State v. Mitchell, 64 Mo. 191; Territory v. Romine, 2 N. M. 114; see also, State v. Lipscomb, 134 N. Car. 689, 47 S. E. 44.

497 Lucas v. State, 19 Tex. App. 79. 489 State v. Craton, 28 N. Car. 164. 489 Farrer v. State, 42 Tex. 265. 490 Commonwealth v. Salyards, 158 Pa. St. 501, 27 Atl. 993; see also for other cases of evidence held sufficient to sustain a conviction of murder in the first degree, Spaulding v. State, 162 Ind. 297, 70 N. E. 243; People v. Mooney, 178 N. Y. 91, 70 N. E. 97; Black v. State, (Tex. Cr. App.) 81 S. W. 302; State v. Clark,

155 Campbell v. People, 159 Ill. 9, 42 34 Wash. 485, 76 Pac. 98. N. E. 123.

VOL. 4 ELLIOTT Ev.-23

491 Luck v. State, 96 Ind. 16.

in cold blood, the absence of satisfactory proof of motive is not material.*92 In case of homicide by poisoning it is held that a chemical analysis, an autopsy, and the aid of expert testimony, though very desirable, are never indispensable.493 It has also been held that if it is shown that poison was in a house where the accused lived, within easy reach, and that he had knowledge of the fact, a conviction will be sustained on that and other proper evidence.

494

Proof of venue has been held sufficient if it is proved in any manner which satisfies the jury that the killing was committed within the jurisdiction of the court.495

492 People v. Sliney, 137 N. Y. 570, 33 N. E. 150; Lillie v. State, (Neb.) 100 N. W. 316; see also, § 3026, on motive.

403 Johnson v. State, 29 Tex. App. 150, 15 S. W. 647; State v. Slagle, 83 N. Car. 630. See also, People v. Wood, (Cal.) 79 Pac. 367.

495 State v. West, 69 Mo. 401, 33 Am. R. 506; Marion v. State, 20 Neb. 233, 29 N. W. 911, 57 Am. R. 825; Stringfellow v. State, 26 Miss. 157, 59 Am. Dec. 247; Dumas v. State, 62 Ga. 58; Beavers v. State, 58 Ind. 530; Commonwealth v. Kaiser, 184 Pa. St. 493, 39 Atl. 299; Riggs v.

494 Zoldoske v. State, 82 Wis. 580, State, 30 Miss. 635. 52 N. W. 778.

§ 3047. Definition and elements.-Larceny is the wrongful taking and carrying away of the personal goods of another with the felonious intent to convert them to the taker's own use and make them his own property without the consent of the owner.1 It is also stated in some definitions that the taking must be without any color or pretense of right. But this is generally understood to be included in the statement that it must be with felonious intent. In a valuable note upon the subject, in a recent report, it is said: "Larceny may, in general, be defined as the taking by trespass and carrying away of the personal property of another, without his consent, with the intent to deprive the owner thereof. Thus, larceny is (1) the taking (2) by trespass (3) and carrying away (4) of the personal property (5) of another (6) without his consent, (7) with the intent to de

12 East P. C. 553; State v. South, 28 N. J. L. 28, 75 Am. Dec. 250; Ransom v. State, 22 Conn. 153, 156; Robinson v. State, 113 Ind. 510, 512, 16 N. E. 184; 2 Bouvier L. Dict. (Rawle's ed.) 134; see also, 4 L. R. A. 291, note; 2 Bishop Cr. Law, §§ 757, 758; and 57 Am. Dec. 271, note; in some of the states the of fense is defined by statute and in a few of them some change is made,

and acts are included which would not have constituted larceny at com. mon law. Larceny without personal violence or aggravating circumstances is sometimes called simple larceny, and larceny accompanied by aggravating circumstances is sometimes called compound larceny. So, larceny is classified as grand larceny and as petit larceny, according to the value of the property.

prive the owner thereof." These different elements, and the evidence admissible and necessary to prove or disprove them, will be considered in the subsequent sections in this chapter, but an attempt will first be made to distinguish larceny from other somewhat similar offenses.

§ 3048. Distinguished from other crimes.-Larceny bears a close resemblance to some other offenses, and it is sometimes difficult to distinguish them. This is especially true in regard to embezzlement and false pretense, but the distinction is well shown in an opinion by the Supreme Court of Massachusetts as follows: "If a person honestly receives the possession of the goods, chattels, or money of another upon any trust, express or implied, and, after receiving them, fraudulently converts them to his own use, he may be guilty of embezzlement, but cannot be of that of larceny, except as embezzlement is by statute made larceny. If the possession of such property is obtained by fraud, and the owner of it intends to part with his title as well as his possession, the offense is that of obtaining property by false pretenses, provided the means by which they are acquired are such as in law are false pretenses. If the possession is fraudulently obtained, with intent on the part of the person obtaining it to convert the same to his own use, and the person parting with it intends to part with his possession merely, and not with his title to the property, the offense is larceny."

4

§ 3049. The taking. The prosecution must show a taking of the property by the defendant, but this may, in some cases, be constructive as well as actual, and it is not absolutely necessary that the taking should be by the defendant with his own hands, nor that the

288 Am. St. 561, note.

* Commonwealth V. Barry, 124 Mass. 325, approved and adopted in, People v. Miller, 169 N. Y. 339, 62 N. E. 418, 88 Am. St. 546; see also as to the distinction between larceny and false pretenses, Zink v. People, 77 N. Y. 114, 33 Am. R. 589; People v. Tomlinson, 102 Cal. 19, 36 Pac. 506; see as to distinction between larceny and robbery, Brennon v. State, 25 Ind. 403; State v. Hender

5