Lovelace v. State

80 Tenn. 721 | Tenn. | 1883

Cooke, Sp. J.,

delivered the opinion of the court.

The defendant was indicted and convicted in the circuit court of Bedford county, and has appealed to this court.

The indictment contained three counts: One for horse-stealing, another for bringing a horse which he had stolen into Bedford county, and the third for a fraudulent breach of trust by fraudulently appropriating to his own use, etc., a horse which he had hired of one A. D. Rogers, the keeper of a livery stable in the city of Huntsville, in the State of Alabama, to be by the defendant ridden to- the town of Fay-etteville and returned in two days, etc.

The testimony showed that the prisoner did hire the horse of the prosecutor in Huntsville, in the State of Alabama, to ride to Tennessee, and to be returned in a few days. And it is insisted here, as it was in the court below, that as the contract of hiring the horse was in Alabama, and as he was received by the defendant in that State, and brought into this State, and converted and appropriated in Bedford county, the fraudulent appropriation would relate to the original hiring, and would not constitute an offense punishable in this State. And' we are referred to the legislation and decisions -in regard to bringing stolen property into the State as sustaining this position.- We do not concur in this.

By the act of 1841, eh. 48, sec. 1, (se.e. 4701 of the Code), it was provided that any person who by any false pretense,’ etc., 'with intent to defraud another, obtains from, any person any personal property shall, on conviction, be imprisoned in the penitentiary, etc. ■‘And 'by section- 3 of the same act, Code, sec. 4704, 'the words ’ “false pretense” includes all cases of pretended buying, borrowing or hiring, bailment or deposit, and all eases of pretended ownership, where the person obtaining possession intended, at the time he received the property, feloniously to steal the same. As by the terms of this act the intention to steal must exist, at tbe time the possession of. the property is 'obtained in order to constitute a felony, and the fact that the fraudulent appropriation of personal property where the felonious intent did not exist at the time of the bailment led' to the enactment of the provisions of sub-section 1 of section 17 of the act of 1855-6, by which it was enacted that “the fraudulent appropriation of personal property or money by any one to whom -it has been delivered on ■ deposit, pledge, sequestration, . or to be carried or repaired, or in whose hands or under whose control it may be by his position as clerk, agent, factor or bailee, or on any other contract or trust by which he was bound to deliver or return the thing received, or its proceeds, is a fraudulent breach of trust.” Code, sec. 4712.

Under this section it is the fraudulent appropriation of the property which constitutes the offense, and not the hiring or obtaining t possession as bailee, and consequently the place - where this is done is the place where the offense is committed and where it is . punishable.

In this case the defendant rode the horse into the town of Shelbyville, in Bedford county, where he procured an auctioneer to sell him at public outcry, and, took the proceeds of the sale and left upon the next train, and was arrested on the next day in Chattanooga. The place of the termination of the bailment and fraudulent appropriation of the property was thus shown conclusively to have been at Shelbyville. Besides by the defendant’s own admissions, which is proved in the record, he stated that he had hired the horse from one Rodgers at Huntsville, Alabama, to to ride a few days; when he got to Shelbyville he was strapped, and sold him to get money to go to East Tennessee, etc. We think there is nothing in this objection.

When the defendant was arrested he had on his person and in his possession a postal card, upon which-was written the following: “Riverside Farm, Lincoln county, Tenn., Dec. Some oneFas taken your horse from the stable or he has bolted. I think he is making a circuit for the Mississippi -bottoms or Arkansas. Although he was seen going towards Stevenson, Alabama. If you do not see or hear from me in three days, meet me or send a detective to Stephenson. Yours, very truly, addressed Mr. Rogers, Huntsville, Ala.”

This postal card, after having been proved to have been found on his person by the officer who searched him, was permitted to be read to the jury over the objection of the defendant, without any -proof that it was his handwriting. And this it is insisted was error.

As this card, whether it was in his handwriting or not, was kept by him in his possession, he is presumed to have known its contents, and as it evidently had reference to the horse in question, it was competent to go to the jury along with the other "testimony for what it was worth, especially as he made no attempt to explain his possession of it. It was, therefore properly admitted. The whole volume' of the testimony makes out as clear a case of guilt against the defendant as could well be imagined. There is no error in the record, and the judgment is affirmed.