Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-15
'0nton aud dispatch.
largest CUculallon in CIIy and Slate
SUPREHE COURT DECISION.
EsuaN,Eie. Tenn, September Tc,ln,
1886

,as articles of personal property, among
which b. one pistol of the value OF thirty
dollars. The case was submitted 90 Jury
90 Jefferson county, which resulted in the
conviction of the prisoner as 90 the pistol,
anl au ae4uittal as 10 all the other articles
charged iu the presentmeut The court
pronounced Judgment upon the verdict of
tHC jury & new trial was asked tDI, and
refused, and an appeal, in error, prosecuted
othis court.
The proof shows at the tima of the COM
mission of the 0tcnse charged in the pre-
sentiment the United States o. ops, then
occupying a portion Of East Tennessee,
were at New Market, and The Rebel forces
.ew miIe- distant above in the vicinity
of Panther Springs. The alleged robbery
Hns committed on the 23d OF December,
I-GE between the two hostile forces. Tits
worth. upon whom the robbery Is charged
600 have been committed, IN substance, stat
that Doc had been q soldier iu the service
90 ODE United States about sixteen months,
ngt bad been recently before that time dis
charged After his discharge be had spent
most .f DIS time with and in the rear OF the
United States army had remained but
.u.. little 90 home ON The d8v ui HIs ar
a., h. had been with the Federal troops
.t .aw Market. aud bad l.lI them only
rUam mue-half hour before his awe.t
uu bad gone aero" from his residence
n iha stage road, al Doctor Pech.s
above Sees Market. aud after be had
crossed The road, aud was driving bis
cattle home. he saw a party Of sol
d,ar.. which he atHIat supposed TO be Fed
.sa. troops bul as thav approached he as-
.arillaca they were Rebel soldiers They
Immediately surrounded him, and present.
iar their guns. ordered him Q, surrender
The prisoner was in the party. and pre-
.anl.I hs gun with 0ther7 He was or
Ir-.l into line and 90 he wheeled into the
road whore the body of the party were
halted. one of the soldiers, Charles Iuman,
ordered him 10 take of his pistol, which
raa then bcIted around him. lie did 60.
and delivered it 20 Iuman The prisoner
af this time was standing about Eve or Fix
pace from him, but said OF did nothing.
Ellsworth further states that at the time
of ha arrest, he had on black jeans coat,
with brass buttons, cut in military style,
brown jeans pants, and a pistol bclted
around him. Both the prisoner and In
had been DO the army Of the United States.
Tie told The party before he surrendered
hI pistol that hc was a discharged soldier,
bot aid not exhibit bis discharge until he
reached Mosav Creek. Al this place some
0t lae party dism0untcd, and the prisoner
ia.t some other articles Of personal prop
orIv. and afterwards, and during the day,
hi. muIp and money were taken, but the
prison had no participation in these Of
icusc- no other violence was offered 70
hia Uoron.
Under this state Of proof which sub
.lull1lIv comprthcnds the controlling facts
of lha case, the court was requested, in
substance. 90 instruct the Jury: That if the
prisoner belonged 90 the Rebel army
and constituted d part Of the scout that ar
rested and disarmcd Ellsworth under the
usage of war, he had a right 10 do so, and
Doe would not be guilty Of any oiieusc.
The court refused 10 no charge the Jury,
bot .-toi II the defendant was IN arms
loo open rebellion against the United
Suites. and lcvyiug war and was then act
iug as D. Rebel scout, he would In law be
guilty of treason--thc highest crime known
ta tho Jaws of the land, and the fact of be-
ing Rebel scout, would not cE0nerat"
a.m from the penalty Of any unlawful act
ho might commit
Doc times of war many things may Doe
dome for the purpose Of war which are not
allowed In times Of peace; but no laws of
regular warfare allow-of ROBBERY IN its lc-
gaI sense"
Other exceptions are taken TO the charge
which. bon the view we have taken of this
case, we do not deem necessary 10 notice.
Robbery, by our statute-Codc, section
i1@I-is defined 10 be the felonious and
.urrih.o taking from the person Of another,
goods Ur money Of any value by violence
or putting the person IN fear
The language employed in the Code is the
anne used in the description of this oHcnse
.n the act 1899, chapter %, section 20 No
difference b. made in the two statutes. The
luIt of violence necessary TO constitute
robbery under the act Of 1899, in the case
o. smith, va the State, 1, Hum, 1914, was
held 10 Doe an actual violence, or wrong
done 90 the person and the case Of Britt
ra The State. Hum. 40, the court SAYS:
The fear constituting an element in this
crime, is fear of present personal peril from
violence offered or impending The
taking must be 10y the terms Of the statute
.o.raious and from the person. IL NAV
De actually from the person, or la his
presence only, as where a robbcr by men
aces ur violence put person in fear, and
drives away his cattle or takes his money,
ar other property before his face. Robbery
is species of larceny, involving the same
elements and tcrpetudc, aggravated by
e.. ID.
putting DOB fear. The samc design and
malicious purpose necessary in the one
.oan must bee present nm the other Black
stone Com 2il. Wharton's Gin. Law,
E19. also Gao. ! Russell on crimes, 81
/ Ialu'H Plea of the Crown, 532. Does
his case fall within the principles laid
down Was the taking bv violence, or
putting DO fear accompanied with a iclo-
Mons intent or r0.mrs r~ua5I We think
not
Fou if aay of the elements necessary 20
constitute the crime of robbery are present
n this case. At the time of the alleged
,ammls iou of this od,nse the late cruel
war was 1lgraut throughout the Southern
States. Large armies on both sides were
nartialcd lu hostile array against each
other The very ground upon which the
llltgcd oECnsC was committed was disputed
crrit0rv. The United States troops lay at
New Market, and the Rebel force only a
lew miles above them. The prisoner was
Rebel soldier and then In the active scrv- /
Ice of the Confederate army" ard the
party of which he constituted a member,
bad been. az the time of committing the
rHtu-g charged, engaged IN accommodating
ho front lines of the United States forces;
lud CON- their return 60 their own camp,
IIusUorlh was discovered crossing the road |
I'm front of the scout, dressed IN Cl0thinS
partially resembling the uniform of the
uitpi States soldiers, and armed with O
pistol holiod ou his person.
Two of the Rebel party, the prisoner and |
has. lum3u, recognized him. and both |
knew The fact that he had been a soldier In
Pie Federal army. lie was surrounded. If !
lu, hy the dircC, order, at least bv the inn
piled authority of the commander of the
Rebel scout and at once, in the prc-
-curc Of the Rebel officer ordered 20 sur
render He promptly obcyed the order
and inucliaioly claimed the protection
due O. discharged Federal soldier; bat he
did NOT then exhibit hls written discharge
lie uas Immediately ordered into the
ranks ot the Rebel soldiers the body Of
whom were euil standing iu line in the
road Ihcrgupoa. by order Of Charles In
man. be was di-armci ard surrendered his
pistol INFO his hands. The prisoner at this
time was standing some five or six steps Oh
with the other soldiers, and said or did
nothing
Under this state of facts we are unable 20
Say The accused Is guilty of robbery I'm the
technical and legal acCcp,s,jon of thp term.
The tcluuous intent is certainly not made
raf. ur the d7rmus H.~g1f. established
Without the prC-cuCe Of these elements
there can be no robbery. The act itself
gas au act Of war, and the property taken