50 Tenn. 53 | Tenn. | 1870
delivered tbe opinion of the Court.
The prisoner and one J. H. Smith' were indicted in the Circuit Court of Knox county for the crime of robbery. They were both convicted of grand larceny, and adjudged to confinement in the Penitentiary for five years. The prisoner appealed in error. On the 8th of January, 1869, the prosecutor, James P. Johnson, a citizen of Union county, was in the city of Knoxville. About noon of that day, he started out of the city in his wagon, and had reached a bridge near Ingles’ mill when the defendant Smith came up to the wagon and asked permission to ride, which was given, and in a few moments, the prisoner Defrese, came up and also wanted to ride. The prosecutor observed that he would have to stop on top of the hill to wait for his brother, but gave his permission also to the prisoner to get into the wagon, which he did. Both of the defendants were strangers to the prosecutor, and he states in his testimony that, “from their looks,” he was afraid of them. He, however, drove on, with one sitting on either side of him, until they reached the railroad, when the defendant Smith asked him if he had a pistol, to which he replied in the negative. At this moment Smith got out of the wagon and appeared to be taking something out of his pocket. He walked in the direction of some houses near by and disappeared behind them. The prisoner remarked that
It is denied at the bar that the transaction is larceny, either at common law or under statutory modifications of the common law doctrine.
It was a remark of Baron Parke, that the definitions of larceny were none of them complete: 3 Greenl. Ev., 150. He objected to that of Mr. East, because he did not define the meaning of the word felonious. It is the doctrine of the common law, that the essence of the offense is that the goods be taken against the will of the owner; invito domino; Foster, 123. And for more than three score years the courts of this State have accepted as the law the opinion of Judge Haywood in the case of The State v. Long, 1 Hay., 154, that, to constitute larceny there must be a trespass in the taking. In that case, it appears that the Judges were equally divided upon the question, whether borrowing with intent to steal will support a charge of larceny. And this query was left in that case to stand for an answer: “Is a trespass in the taking an essential ingredient in the offense?” 2 Batt. Dig., 842. Judge Haywood, who was said by C.
There are many other cases in which the owner parts willingly with the possession of his goods, in some manner of bailment; and a fraudulent conversion by the bailee is held to be larceny. The essence of the offense in that class of cases being the fraudulent purpose at the time of the bailment, the trespass is in the fraud and deception practiced upon the owner, by which the possession was acquired with felonious intent.- The owner has parted with the possession of his goods, perhaps willingly, and hence no trespass, in its narrow and restricted sense, is committed. But when it is made apparent that some stratagem or artifice has been fraudulently used to acquire the possession; that the owner did not, in fact, part with his goods willingly, to be fraudulently appropriated by the bailee, then the crime is complete. This is a wrong, a trespass, a violation of the possession. Thus it is said that the taking and carrying away are felonious where the goods are taken against the will of the owner, either in his absence or in a clandestine manner; or where possession is obtained either by force or surprise, or by any trick, device or fraudulent expedient, the owner not parting with his entire interest in his goods; and when the taker in any such case intends fraudulently to deprive the owner of his entire interest in the property against his will: Rose. Cr. Ev.,
It is urged on behalf of the prisoner, that the Court erred in admitting evidence that the prisoner and Smith were seen on several occasions attempting to practice upon others the same artifice practiced upon the prosecutor. We think the proof in this kind of case was legitimate and proper. The combination between the parties, as shown in the proof, may be classed as a conspiracy to cheat and defraud whoever may be cheated, or whoever they might find an easy victim to their artifice. And it is well settled that in such cases, general evidence of a combination to defraud or attempt to defraud others in the same way, may be shown to illustrate the animus and intention of the parties in the case in judgment: Regina v. Frost,