Blunt v. The Commonwealth, 4 Leigh 689

*MAY, J., delivered the resolutions of the court: 1. That the instruction asked by the prisoner’s counsel, was properly refused; because, if the prisoner acquired possession of the 'watch in the manner therein stated, with a felonious in- . tent at the time to carry it away, and appropriate it to his own use, without paying' for it, he may have been guilty of larceny in so doing. 2.

That the prisoner’s counsel having applied to the court for an instruction on the law, and the court having refused to give it in the precise form in which it was asked, it was correct that the court should give one with such modification as, in its opinion, was legal and proper. For the court may, at all times, instruct the jury on any question of law arising in a cause, if, in its opinion, justice shall require such interposition. 3.

That the instruction, however, which was given, was erroneous in this, that although the prisoner may have obtained possession of the watch in the fraudulent manner indicated in the latter part of the instruction; yet, unless he so obtained it, and carried it away, with a felonious intent at the time, he was not guilty of larceny.

The judgment is, therefore, reversed, and the cause sent back to the circuit superiour court of Henrico, for a new trial to be had: in which trial, if any instruction shall be moved for on the same subject, or the evidence shall require it, the court is directed to instruct the jury, that if they shall find from the evidence, that the prisoner with a felonious intent obtained possession of the watch by false and fraudulent pretenses, and afterwards carried away the same, without the consent of the owner or his clerk, 'then the prisoner is guilty of larceny.