60 S.W. 938 (1901)
Defendants received $ 6 for shucking corn. One of them took $ 2 into a bank for change in order to divide the money equally. The cashier gave him what he said was a roll of 20 nickels. Defendant, without unwrapping the coins, returned to the others. They proceeded some distance to a secluded spot to divide the money. Opening the roll, they discovered it contained 20 $ 5 gold coins. Defendants kept the money. The jury was instructed that if defendants received the money under mutual mistake and, after discovering that mistake, feloniously converted it, they were guilty of larceny.
- The court held that to constitute the crime of larceny, there had to be a simultaneous combination of an unlawful taking, an asportation, and a felonious intent.
- When property came lawfully into the possession of a person, a subsequent appropriation of it was not larceny, unless the intent to appropriate it existed in the mind of the taker at the time it came into his hands.
- To constitute larceny in receiving the overpayment, defendants had to know and have intended to steal the overpayment at the time it occurred. The instruction given the jury was erroneous.
The court reversed the judgment of the trial court and remanded the matter for a new trial.
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