| Tenn. | Nov 15, 1805
The rule laid down in the note to the case of the State vs. Long 1 Hay. 157 is correct law, and the reasoning in the note though contrary to many late decisions in England is incontrovertible. As it is adopted, it were useless to repeat it.
The books take a distinction between a bare care, distinct from the possession of goods. The distinction is nice, & should such a case occur, it ought to be narrowly examined.
The true rule seems to be adverted to by the counsel for the defendant, that to constitute a felony, there must be a trespass in the original taking, which cannot be the case where the property has been previously delivered.
It will be a breach of trust, or fraud, but cannot amount to felony.
Where a person has not parted with the general property, and holds up a claim, or there is a dispute, and he takes the property, such taking ought not to be considered felonious prima facie.
The circumstances however, are with the jury. If a person delivers property to another for a special purpose, he does not part with the general property, and it would seem, that the taking of the property, having a claim to the same would not be felony, unless from circumstances affording the clearest evidence, it appeared that the taker make to charge the bailee with the value of the goods, or produce other loss to him.
If Barrow did not authorise the taking of the horse in the first instance, it would be felony, otherwise it would not. The sword of justice is not to avenge breaches of confidence which is left to interposition of the civil law.
considered the old law, as the most correct, and that Mr. Haywood’s opinion was the true one in a free country. It is important that legal principles should be settled. Where the discretion of a judge commences, there law ceases. Upon the second point he stated, that where a man pawns goods and afterwards takes them away, by which the bailee is injured, it is as much felony, as in any other case : The pawner being deprived of his goods, may be as wicked, and inflict as great an injury as could otherwise arise.
Verdict—Not Guilty.