## Facts

- Savage was indicted in the Court of General Sessions for Sussex County, Delaware, for larceny involving a metal can and about three gallons of gasoline taken from the prosecuting witness’s unattended automobile.
- The State’s evidence was that Savage removed the can containing gasoline from the unattended car and drove away in his own vehicle.
- About one mile later, Savage stopped, poured the gasoline into his own car’s tank, and threw the can into a nearby branch.
- The State contended Savage did not notify the owner, did not attempt to return the can, and did not attempt to pay for the gasoline or the container.
- Savage admitted taking and using the gasoline but testified he had run out of fuel and saw the prosecuting witness’s car nearby.
- Savage testified he left the empty can near the branch and instructed a companion to return the can to the owner and tell the owner Savage would return a like amount of gasoline (or otherwise pay for what was taken).
- The companion denied Savage gave any such instruction.
- At trial, most elements of the taking were not seriously disputed; the dispute centered on Savage’s intent when he took the gasoline and can.

## Issues

1. Whether a taking of gasoline and its container is larceny when the defendant claims that, at the time of the taking, he intended to return the container and replace the gasoline (or make restitution).
2. Whether the jury must determine the defendant’s “felonious intent” as of the moment of the taking, rather than from later conduct or later offers to repay.

## Decision

- The reported opinion is the trial court’s charge to the jury, stating the governing law of larceny and directing how the jury should decide the case on the evidence.
- The court defined larceny as the taking and carrying away of the personal property of another, without the owner’s consent, with felonious intent to convert it to the taker’s own use.
- The court instructed that the State bears the burden to prove beyond a reasonable doubt each material element, including:
  - that the taking occurred in Sussex County (venue);
  - that the property had some value;
  - that the alleged owner had a general or special property interest sufficient to support the indictment;
  - that the defendant took and carried away the property (or some part of it) without the owner’s consent; and
  - that, at the time of the taking, the defendant had felonious intent to convert the property to his own use.
- The court explained “felonious,” as used in this context, means the act was wrongful—done without color of right or excuse.
- The court told the jury the case was “within a narrow compass” because the defendant admitted the taking in Sussex County, value was not disputed, consent was not claimed, and ownership was sufficiently shown; the real question was intent at the time of the taking.
- The court instructed that if Savage took the gasoline and can intending at that time to restore the property (by returning the can and replacing the gasoline), the felonious intent required for larceny would be missing; if he took it intending to appropriate it to his own use without intent to restore, the offense would be made out even if he later regretted it or later offered payment.

## Legal Principles

- Larceny requires proof beyond a reasonable doubt of: (1) a taking and carrying away (2) of personal property of another (3) without consent (4) with felonious intent at the time of the taking.
- For larceny, “felonious intent” is an intent to convert the property to the defendant’s own use wrongfully, without color of right or excuse.
- The time that controls for intent is the moment of the taking; later conduct may be evidence, but it does not replace the required finding about intent when the property was first taken.
- A taking accompanied by a present intent to restore the property to the owner, or to replace it in kind, is inconsistent with the felonious intent required for larceny.
- A later willingness to repay or make restitution does not prevent a larceny finding if the original taking was done with intent to appropriate without restoration.
- Venue, value, and a general or special ownership interest are material elements the State must establish as part of its larceny proof.

## Conclusion

In its jury instructions, the Court of General Sessions framed the case as turning on whether Savage, at the time he took the gasoline and can without consent, intended wrongfully to appropriate them without intent to restore; an intent formed at the taking to return the can and replace the gasoline would defeat the felonious intent element and require acquittal on larceny.


State v. Savage, 186 A. 738 (1936)