In a trial for larceny, under the provisions of the first clause of section 20 of chapter 214 of the Revised Statutes, it is for the jury to determine, upon all the evidence, whether the defendant honestly, in good faith, believed the property in question was his own. It is not to be supposed that the Legislature intended that a person should be convicted and punished, as for a larceny, for taking property openly, under a claim of right, though the fact be that no qualifying word, such as "maliciously" or "wantonly," is found in the act by which a simple trespass at common law is prospectively made an indictable offence.
BRAYTON, J.
It is true, that in the clause of the statute relied upon, neither the word "maliciously" nor the word "wantonly" is employed to characterize the offence, as in other clauses of the same act. Still, we cannot hold that the legislature intended that a person should be convicted and punished, as for a larceny, for taking property openly, under a fair claim of right. We think it should have been left to the jury to determine, upon the evidence, whether the defendant honestly, in good faith, believed the property in question was his own. The charge of the court, as we interpret it, was not of this character.
The defendant's exceptions are sustained, and a new trial is ordered in the Court of Common Pleas