76 Tenn. 456 | Tenn. | 1881
delivered the opinion of the court.
Conviction for the larceny of a mule, from which the prisoner has appealed in error.
The mule was taken on the night of July 20, 1880. A few weeks previously another mule had been stolen in the same neighborhood from John Harris. During the June term of the circuit court of the county, Tompkins, one of the witnesses for the State in this casee, was approached by the plaintiff in error, McAdams, and taken •out on the balcony of the court-house, where they were alone, and asked if he knew that he (Tompkins) was suspected of stealing Harris’ mule. Tompkins replied in the negative, and remarked that those who suspected should come and see him on the subject. Defendant then told Tompkins to send no such word, that it would ruin the whole thing; that there was a good deal of fine stock in his neighborhood, and if properly handled money could be made out of it. Defendant further told Tompkins to say nothing about what had passed between them, and that they had better not be seen together as they might be suspected; that he would see him again or write to him. Tompkins communicated his conversation to Hill, a neighbor of 'defendant, who advised him to be cautious of defendant, who was a bad fellow and might get him into trouble. Tompkins did not see defendant for several • days, nor receive any letter or message from him. In the meantime, Hill, thinking that defendant’s proposition to Tompkins meant larceny, went to see Tompkins, who lived seven or eight miles from him,
Upon the foregoing facts' it is not pretended that the jury were not fully warranted in finding the defendant guilty of the offense charged. The objection made is to the judge’s instruction to the jury. His Honor, after stating the opposing views of the State and the defendant, said: “ If one person agree with another that the latter with a third person shall steal
To constitute larceny, the possession of the property must be taken against the will of the owner. If, therefore, the owner direct his servant, or other employee, to deliver property to a supposed thief who had not formed the design to steal it, and the latter take it, there would be no larceny, even it seems if
The defendant offered O. B. Harris as a witness, and asked him the following question: “ Did you or not go to defendant’s house a short time before he was arrested, and tell him that your brother, John Harris, ‘ had lost a mule, and that Andrew Tompkins and a man by the name of Kirby were suspected as the parties who stole the mule, and request defendant to keep a lookout, and if he could find out anything about "the matter to let yon know it? If so, did not defendant tell you that he knew Tompkins, but did not know Kirby, and that he would enquire and find out what he could? And was not the Tompkins referred to, the same Tompkins who testified in this case?” The State objected to the question, and the objection was sustained by the court. Error is assigned on this ruling.
Upon cross-examination of one of the witnesses for the State, the defendant’s counsel asked the witness “ if Tompkins was not suspected of stealing Harris’ mule?” The witness replied no, but that the defendant was suspected of stealing it. The defendant excepted to the reply after the responsive negation, but the exception was overruled, and the answer went to the jury. Error is assigned on this ruling of the court. ‘
The answer of the witness, in so far as it was ex
Evidence of another substantive offense than that for which the defendant is on trial, except where it is material to show the intent or motive of the act charged, is inadmissible: Wilcox v. State, 3 Heis., 110, 116. The testimony in question does not amount to such proof. The trial judge no doubt thought it might tend to explain the conduct of the defendant's neighbors, and the real ground of objection is that it tended to prejudice the defendant by raising a suspicion as to his character for honesty. The rule in this State both in civil and criminal cases is that if incompetent evidence has been received that might have influenced the .jury, a new trial will be awarded, for it cannot be seen how far such evidence did influence the jury: Peek v. State, 2 Hum., 78; Foster v. Jackson, 8 Baxt., 433. If, however, the evidence, although not strictly admissible, is not of a character to damage the defendant, or, as it has been otherwise expressed, if the court can clearly see that the error has not influenced the result, it is no ground for a new trial: Draper v. State, 4 Baxt., 254; Wilson v. Smith, 5 Yer., 381, 409; Clark v. Rhodes, 2 Heis., 206; Patterson v. Head, 1 Lea, 664. And it has been decided in criminal cases, where the admissibility of the defendant’s confessions was in question, that inasmuch as there was ample proof of the prisoner’s guilt, independent of his confession, if there were doubt as to the manner in which it was obtained, the court would not reverse
Affirm the judgment.