95 Tenn. 189 | Tenn. | 1895
The plaintiff in error was convicted in the Circuit Court of Carroll County of the larceny of two United States bonds of the denomination of $ 1,00.0 each, the property of Mrs. Mary Johnson. The jury assessed his punishment at confinement in the State prison for a term of three years. Motions for a new trial and in arrest of judgment having been overruled, the prisoner appealed to this Court. The record discloses that in 1888,
It appears that, after the assignment, the trustee sent to TrusloAv for the combination to the lock, in order to enable the former to open the safe. Trus-Ioav sent some figures which did not disclose the combination, and the assignee was compelled to communicate with the manufacturers in order to learn it. When the safe was opened, Clarence Johnson was present, and, upon an examination of the Mebane drawer, learned for the first time that the bonds had been abstracted. In the meantime, the defendant had become a fugitLe, and was traA'eling about in disguise under an assumed name. After absenting himself three or four months, he voluntarily returned to his home, when he was arrested, indicted, and eomdeted, as already stated.
The first ground upon which counsel for the defendant asks a reversal is that the verdict and judgment below are not supported by the evidence. The contention is, there is no evidence to show that when Truslow removed these bonds and pledged them with the First National Bank of Nashville as collateral security for an indebtedness of the Bank of Carroll, that he intended to appropriate the bonds to his own
The second assignment of error is that there is a fatal variance between the indictment and the proof. The indictment charges the bonds alleged to have been stolen were the property of Mrs. Mary Johnston. The evidence shows the bonds belonged to Mrs. Mary Jolvn-son. It is insisted the defendant, if acquitted under this indictment, could not protect himself against another prosecution for the larceny of the bonds of Mrs. Mary Johnson. We think there is no merit in this assignment of error. Johnson and Johnston are substantially the same names, or at least idem sonans. In Robertson v. Winchester, 85 Tenn., 182, it was held by this Court that Ellett and Elliot were idem sonans. See, also, Wharton’s Criminal Evidence.
The third assignment of error is, viz.: “This is a common law indictment charging a common law offense, and at common law if the bonds came lawfully into the possession of the defendant without a trespass or evil intent on his part, no larceny is committed by any subsequent misappropriation with felonious intent, that is, with intent to deprive the owner thereof permanently. This assignment is based upon the refusal of the Circuit Judge to give in
The fourth assignment of error is based upon the refusal of the Circuit Judge to permit the witness, Clarence Johnson, to answer the question what the defendant had done about paying Mrs.' Johnson for the bonds before his indictment, and after the assignment was made.
The Court sustained the objection of the State, remarking, “It is immaterial whether the defendant had paid for the bonds or not.” Counsel excepted to the statement of the Court, and asked to be allowed to state what he expected to prove by the witness, -but the Court refused to allow him to state it. Of course it was not the duty of the Court to permit counsel, in the presence of the jury, to detail testimony which it had pronounced immaterial or incompetent. The most approved practice in such cases is for the jury to retire and the witness to testify in respect of the excluded evidence in the presence of the Court. Another mode of preserving
It is well settled that paying for stolen goods will not purge the original taking of its felony, or constitute any defense to the indictment. Wharton dn Criminal Law, Yol. L, 887-907; Trafton v. State, 5 Tex., 480; 2 Russell on Crimes, 7. Notwithstanding the incompetency of such testimony, the witness, Lee, in the course of his examination, stated that defendant “had told him he had made some sort of a conveyance to secure Mrs. Johnson the amount of her bonds by a. mortgage on property, or something of that kind,” and thus the defendant got the benefit of his declarations before the jury.
We have carefully examined the other questions made, and do not find any of them well taken. We are of opinion the verdict of the jury is sustained by the weight of the testimony. There is no error in the record, and the judgment is affirmed.