19 Tenn. 84 | Tenn. | 1838
delivered the opinion of the court.
This is an action for a malicious prosecution, in which the plaintiff below recovered a judgment for the sum of five
Whatever may be the hardship of this case, on the part of the plaintiff in error, it is impossible for us to relieve him, upon the facts as stated in the bill of exceptions. We can-not say that the verdict is not warranted by the evidence. The jury were the proper judges of the credibility of the witnesses, and of the weight of the testimony, and this is not a case in which all the proof is on one side, and we have repeatedly said, that we will not reverse if there be any proof, by which the verdict can be sustained.
The question then is, was the charge of the court correct? It is assailed on two grounds, 1 — because the court said to* the jury,- “It was alledged, on the one side, that a felony had been committed, and on the other, that the whole matter' was a false conspiracy, supported by perjury, the court would' leave it to the jury, on the whole evidence, to determine ho# the truth was: if, as alledged, on behalf of the defendant, a felony had been committed, plaintiff could not recover: if, on the other hand, it were all false, the plaintiff should recover; and the jury were the sole judges of what damages should be given.” We are not able to perceive any error in this part of the charge. The court states to the jury the point in controversy arising out of the testimony, viz,, that the defendant contends that the plaintiff is guilty of the felony charged, and the plaintiff, that she is innocent, and that the' charge is got up by a conspiracy by the defendant and others,- and is supported by perjury. Whether this be so or not, the court very properly says, is a question for the determination of the jury, depending upon the facts proven, and the fair deductions to be drawn from them; and the proposition is most unquestionably true, that if the plaintiff were guilty of the,felony charged, she had no cause of action, but that if the-charge, originated in- a conspiracy * and was supported by pegury, she was entitled to a verdict,- and to such damages as. the jury,, in their discretion, might think proper to allow. If it resulted as a necessary consequence, from this'~part- of
2. It is said, that the charge is erroneous, because the! court said to the jury, “If defendant agreed or consented that the negro should let the plaintiff have the bacon, if would not have been, under the circumstances, a felony in plaintiff to have taken or received it, but. that it would bed matter proper to be taken into consideration in mitigation of damages.”
The truth of this proposition is equally as evident as that of the first. No larceny can be committed of property, the' possession of which the owner parts from voluntarily. AH the authorities are express upon the point, that to constitute the crime of larceny, possession of the property must be taken by the thief invito domino.
The charge does not contradict the principles of the cases íéferred to by the counsel for the plaintiff in error. They, hone of them, go further than to say, that a man may direct á servant to appear to encourage the design of the thieves, and lead them on till the offence is complete, so long as he did not induce the original intent, but only provided for its discovery after it was formed; that a servant, by the desire of his master, may show thieves, breaking into the house for plunder, where the plate is kept, and if they remove it, they are guilty' of larceny; and that if a man is suspected of an intent to steal, and another, to try him, leaves property in his wayj which he takes, he is guilty of larceny. In all these cases, the possession of the property remains with the owner, and a trespass is committed in the taking by the thief. But such wohld not be the case, if the master had directed the'servant. to deliver the property to the thief, instead of direcfing bim to furnish facilities for his arriving at the place where it was kept.
There is then, in our opinion, no error in this case, and we affirm the judgment of the court below.