13 Tenn. 154 | Tenn. | 1833
delivered the opinion of the court.
The defendant was tried and convicted in the circuit court of Davidson county, under the 26th section of the act of 1829, ch. 23, of “fraudulently receiving stolen goods, knowing them to be stolen, with intent to deprive the true owner thereof.” It appeared in evidence, that a man by the name of Boon, lost four or five hundred dollars, it having been stolen from him by a negro slave, Bob, belonging to the mother of the plaintiff in error. The morning after the money was stolen, several of the neighbors were collected together, and among them the plaintiff in error; when Boon requested them “to watch the negroes, and endeavor to obtain the money, and keep it for his use, which they promised to do.” Afterwards, the plaintiff in error received the money from Bob, with a fraudulent intent to deprive Boon thereof, and he now asks a reversal of the judgment, on the ground that Boon authorized him to receive it. It is argued earnestly by the counsel for the plaintiff in error, that he had lawful authority to receive the money, and that therefore, he cannot be guilty of felony, but is only guilty of a breach of trust. To sustain the position, 2 East’s Crown
This case shows, that the lawful authority spoken of in the text, is to be understood as applying to an honest and lawful reception of goods. That the goods were stolen at all, was not established. The evidence repelled the idea that the husband had stolen them, and on the contrary, furnished a strong presumption that he had purchased them. If it had been shown that the husband had stolen the goods, and the defendant knowing that fact, had received them as part of his estate, although by ' act of law they came to her, yet she would have been guilty; for the judge expressly puts her acquittal upon the ground, that the jury should find she came to the possession of the linen without fraud or misbehavior on her part.
The rule, that to constitute a larceny the taking must !be against the consent of the owner of the goods, is attempted to be applied to this offence. There is no analogy between the two cases, so far as this question is concerned. To constitute larceny there must be a trespass in the taking. That cannot be, where the possession is obtained by the owner’s consent; nor could it be if the goods were lost, because they would not in such case, be in the owner’s possession, so as to make it possible a trespass could be committed in taking them. All that is said in the books, therefore, in relation to the consent of the owner to part with the possession of his goods, amounts only to this, that to make a taking larceny, there must be a trespass; and as there can be no trespass, where the party taking has the owner’s consent, so neither can there be a larceny. But as in this case no question about a trespass can arise, the doctrine about consent as applicable to larcenies, cannot be applied here. But independently of all this, our act of assembly, under which the plaintiff in error was convicted, excludes, by its
Judgment affirmed.
Cassels vs. The State, 4 Yerger’s Rep.