Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-24
DECISIONS OF THE SUPREME
COURT.
Nashville, December Term. Isss.
Reported torthc Union and Dispatch by Philip
Lindsey. ESQ.

/ OVJAIs
Nashville, DeeOmbor Term, 1855.
Reported forthe Union and Dispatch by Plilip
Lindsey. Esq
Lancaster and Smith "a. lSiate.
The plaintiffs in error we're indicted for
horse stealing in the Circuit Court Of Smith.
were tried By jury Of the country, and a
verdict and Judgment against them. and
sentenced 70 serve three years in the pepi-
tertiary. A new trial was moved for and
oyerruled, from which they have appealed
to this court. The facts necessary to be
stated are, on the night of the 10th of Ag-
| gust, 1858, a mare and horse belonging to
Dean, and one to Mrs. Donohue. were taken
from tier possession. On the next dav the
horses were found in the possession of the
pislntiiis IN error. The day before the
taking, the plaintiffs In error, with several
other persons, Iaet a shop in the neigh
oorhood, in which the propriety and legal
ny OF taxing property from those in hOstil-
ny TO them was discussed and determined
upon. The plaintiffs in error stated that
they bad been robbed by party of Rebel
guerrilias OF their property, few days be-
tore, and they were going to take the pro-
perry Of Rebels in return to c0mpensate
them, and that they had the right to do 1t.
1ais p!aintiH Smith, had 4 few days pre-
Tious, been robbed Of bis horse. his coal
and clothing stripped from him. Ianeas-
ter had, short time previsus, been robbed
OF al ms property. The plaintiffs in err
ror were unconditional Union men. and the
opinion prevailing in the community was
that they had the right 10 take the pre-
perry Of rebels to reimburse themselves
On the day after the reeapture Of Che
property, Dean vas arrested BY the Fed
sral troops, and being soldier in the
Rebel army, was sent to q Northern prison,
where he died. Lancaster was a soldier in
the Federal service, and at home on fur
lough. smith joined the Federal army a
lev days after the taking. There Is no
proof to connect theplaintifIs in error, with |
the arrest of Dean. The counsel for the /
plaintiffs in error objected 10 the introduc-
ton Of the testimony of Deans arrest. and |
subsequent Imprisonment and death. unless /
the State proved the plaintiffs in error had
some connection with it. The objection /
was oYerruled and permitted to 60 toihe in
~. The Circuit Judge was requested on the
trial to charge the jury every taking |
Is not larceny; to make it such, it must be
accompanied by circumstances which de-
monstrate felopious intent. and the in
tent being necessary 10 complete the Of |
tense IL man, under the honest inn
preston that he has a right to the proper
", takes 1t into his possession, It is not |
larceny. In this case. if the defendants
honestly believed that by the rule of war.
the right to take the property Of Rebels to
themselves in their losses &C.
casioned by Rebels taking their property.
If such was the case, and acting under the
honest belief, did take the property CHARGED
in the indictment from the Rebels. II woTIid
not be larceny, but a trespass. That the
question Of intent was one for the Jury, and
shey must look to all the circumstances of
the case to see how this is. If the de-
PENDANTS did not act under this honest be-
liet, put used il as cloak to commit lar
ceny, then it wonld be no protection
Which instructions the court refused,
and, IN substance, stated to the Jury
he principles Of law would not be
changed on account Of the prevalence
1f opinion in the community, the two cor
ending parties had right to take property
o reimburse themselves. The opinion. was
ESSENTIALLY wrong, both in law and morals, |
md would not be an excuse, for that in its
lbsence, would be theft. There is no differ
nee in an act which would be larceny. if /
committed by one who did not entertain
uch an opinion and one who did. Ii is
lot case Of honest mistake or Ignorance. of |
act. II is not 8 case Of ignorance of Law
{ it was, it would be no excuse. We think
here was no error in the court to refuse
he instructions as asked for and the propo.
itions of law, stated by the court. are cor
'ect as general principles. The question of
Intention should have been leif 20 the iurv.
10 constitute the crime oflarceny. the felo- L
Nous intent is necessary. It IS the essence |
y the crime. The court say, in the case of
Duncan as. State, Hum, $50: at ia q |
scred principle of criminal jurisprudence
hat the intention to commit the crime is
he essence of the crime In Wharton's |
rim. Law, $50, it is held, every taking of |
he property Of another, without his knowl- |
'dge or consent, is not larceny. To make |
I such, II must be accompanied by such
circumstances as demonstrate a felonions |
The charge of his Honor is very
Elaborate and learned He enters into and | {
discusses the distinctions between fraud
nd felony. His distinctions are we'll and
bly, drawn, and, to minds practiced in
UGH discussions, easy of comprehension,
ut Incapable of being understood by the
rdinary class of jurors, whose minds
re not trained in scholastic learning. The
laintiffs in error we're entitled to have
ne propositions Of law governing this case,
lainly stated to the Jury in such man 7
er as to enable them 10 comprehend the 4
rinciples involved. This we think has
OF been done in this case. There is no
roof in the record that the plaintiffs in
rTor had any agency in the arrest and inn
risonment of Dean, from whom the horses
ere taken. 1t was in no way CON !
ected with the ofense, and the arrest and
Imprisonment we're made after the alleged
king of the property in the Indictment.
he effect of this testimony was to preiu- {
ice the minds of the jury against the
laintifis in error. 1t did not in any /
ay tend to elueidste the issue, and
lis clearly within the principle settled by
us court in the case Of Martin Shaw IS. =
lie State, 5 Sneed. SO, and it was error in Z
lie Circuit Judge to receive it.
The Judgment of the Circuit Court will be
.versed aud a new trial awarded u
SHACKELFORD. judge. n