338 S.E.2d 405 (W. Va. 1985)
Robert Gross and Kelly were charged in a joint indictment with stealing ten oak mantels having a value of more than $200 from two houses located in Parkersburg in April, 1983.1 Danny Dewayne Kelly was indicted for grand larceny and convicted by a jury of petty larceny in the Circuit Court of Wood County.2
The houses had been purchased in January 1983 by Linda Bradley and Russell Wilson through their partnership Ruslind Rehabilitation for five thousand dollars.3 The properties had suffered repeated vandalism and the city had set a July 1983 deadline for repairs or demolition.4
On April 25, 1983, the owners discovered that locks had been torn off doors, windows and frames had been damaged and the ten remaining oak mantels were missing.5 The next day the owners identified the mantels at Maher’s Antique Shop.6
Robert Casto, a local furniture dealer, testified that Kelly and Gross approached him about selling materials from the houses.7 Casto paid Kelly one hundred forty dollars after arranging a resale to antique dealer Robert Maher.8 Kelly made three telephone calls from Casto’s store before accepting the money.9
Defense witnesses included neighbor Nellie Bohn who stated Kelly asked about the owners and borrowed a screwdriver.10 Codefendant Robert Gross who testified a man named Jim Bradley was present discussed tearing down the houses and later received the sale proceeds.11 Kelly himself who stated he responded to an advertisement call from Bradley met him at the houses and believed Bradley owned the property.12
The trial court denied his motion for judgment of acquittal and Kelly appealed to the Supreme Court of Appeals of West Virginia.13
Whether the evidence presented at trial was sufficient to prove beyond a reasonable doubt that the defendant acted with the criminal intent required for a larceny conviction?14
To support a conviction for larceny at common law, it must be shown that the defendant took and carried away the personal property of another against his will and with the intent to permanently deprive him of the ownership thereof.15 The animus furandi, or the intent to take and deprive another of his property, is an essential element in the crimes of robbery and larceny.16 If a person take property of another under an honest belief of right in himself to do so, he is not guilty of larceny thereof, even though he took it with knowledge of the adverse claim of such other person, and his own claim ultimately prove to be untenable.17 Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence.18
No. The evidence fails to prove criminal intent beyond a reasonable doubt when the rule is applied to the specific facts.19 Kelly and Gross testified they acted at the request of James Bradley, whom Kelly believed owned the houses because Bradley was married to owner Linda Bradley at the time.20 Kelly made three telephone calls from Casto's store to confirm authorization before accepting the one hundred forty dollars, and the removal occurred openly in daylight with no concealment, as confirmed by neighbor Dale Michaels and police officers who observed the activity without suspicion.21
These facts establish a reasonable hypothesis of good faith belief that the State did not exclude.22 The sale was arranged through local merchants Casto and Maher who visited the premises, and Kelly paid the proceeds to Bradley upon later encountering him.23 The owners had not given permission, yet Kelly's mistaken but honest belief that Bradley had authority negates the required felonious intent under the rule.24
The evidence was insufficient to support the conviction for petty larceny, which must be reversed and remanded for entry of a judgment of acquittal.25