Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-16
SUPREME COURT OPINIONS,
September Term - Knoxville.
1870.
Joseph u. HefskeII, Attorney Gen
~ eral and Reporter. $50

lAHCkN1--f O8ot6SfOll OtLla3le0 TrQ1td.-ODta1ue
ing property by fraudulent device, as ''the Ave
cent trick, I" is larceny.
sAME-Bsiimept or dgenes.-The Code, 4s79,
which makes It larceny 10 use any balment or
agency merely as the means OF procuring possess
sion Of property, With an inte at the time to
make fra ioUlent Appropriation thereof; is only
return to the principles CT the common law.
oosdaFydsncs Of obsr .es q 0g prisoner s
may be admitted where guilty knowledge is to
be proved, though they amount to substantive
feloDies OF attempts to commit felony.
PRACTICE-ErdnaindtiOn Of frftncss BIZ the Court.
1t is error for the Circuit Judge to conduct the
examination Of the witnesses, to bring out evil
dence against the prisoner
From the Circuit Court of Knox coun-
ty, E. T. Hall, j., presiding.
The indictment upon which the pris-
oner was convicted, was, in the common
law form.
Heiskell, Att. Gen. for the State, cited
Roscoe, Or. Ev., 500, $40, 7 m. 2 Whar.
Am. Or. Law, S. 1S49, 1887. State VS..
Long, / Hay, l54. Felter VS.. State, 9
Yer, 397, 404, decided in 1886, and in
sisted that the code 4, 67S, 4, $40, restored
the old rule of the common law; that in
returning to the old rule the mode of pro-
ceeding was revived; that the statutes de-
clared the acts larceny, and evidently they
meant that it should be so described, and
so Hall VS.. The State, Col, 1873, was
nisapprehension of the statute.
On admission of proof of substantive'
felony, he cited / Wat; Archt. 1872, ct
seq S95. Butt Vs. State, Hum, 81, 36.
Perdue VS.. State, Hum, 494.
E. C. Camp, U. S. Dist. Att. for pris-
oner, contended that there must be tres
pass to constitute larceny, citing Bishop,
Or. L., 427. 2 Id. SIS, 816, SI9; Eel
ter VS.. State, 9 Yer, 397. That the IN
dictment does not charge a statutory lar
ceny. Hall VS.. State, Col, 12S. Evil
dence, 2 Russ on Or, 772.
Action of Court examining witness was
improper.
VIM. II. Maxwell with him cited, in
addition, State W. Braden, 2 Tenn, 6S.
Robinson VS.. State, ! Cold, 100. Dodge
vs.. British, Meigs, 81.
OPINION.
The prisoner and one ]. II. Smith were
indicted in the Circuit Court of Knox
County for the crime of robbery. They
were both convicted of grand larceny and
adjudged to confinement in the peniten-
tiary for five years. The prisoner ap.
pealed in error. On the 8th of january,
1859, the prosecutor, James p. johnson,
a citizen of Union county, was in the city
of Knoxville. About noon of that day
he started out of the city in his wagon,
and had reached bridge near Ingles'
mill, when the defendant Smith came up
to the wagon and asked permission to
| ride, which was given; and in few mo-
ments the prisoner Defrezs came up and
also wanted to ride. The prosecutor OBJ
served that he would have to stop on top
| of the hill TO wait for his brother, but
gave his permission also to the prisoner
| to get into the wagon, which he did.
! Both of the defendants were strangers to
| the prosecutor; and be states in his testi-
mOny that, s'from their looks" he was
afraid of them. He, however, drove on,
with one sitting on either side of him,
until they reached the railroad, when the
| defendant Smith asked him if he
had a pistol, 10 which he replied in the
negative. AT this moment Smith got out
of the wagon and appeared to be taking
something out of his pocket. He walked
in the direction of some houses. near by
and disappeared behind them. The pris-
] OAlCl ltlAhAhON NuaN udO
something. The wagon was stopped, and
the prisoner picked up from the ground a
paper folded in the shape of "a thumb
paper" and remounting into the wagon,
he opened the paper and took from It u
five cent coin, which he put into his
mouth, and then refOlded the paper as
before. About this time the party had
reached the top of the hill, where the
wagon was halted. Here Smith came up,
and the prisoner observed TO him, that he
had lost something, at the same time
handing him the folded paper. The de-
PENDANT smith replied, ''Ol, yes,
would not take ten dollars for that
paper and proposed at once to bet ten
collars that there was a five cent piece in
the paper. The prosecutor replied that
! he did not wish to bet, and that he had
no money. He was then asked by Smith
to show his watch. The prisoner and
Smith both examined the watch, then
handed it back, and theprosecutor replac-
ed it in his pocket, observing that it was
worth forty dollars. The defendant
Smith proposed to bet twenty-five dollars
against the watch, but the prosecutor
had fears of them, as he says, and was
not willing to bet. An offer was then
made by Smith to bet forty dollars against
the watch that there was a five cent coin
in the folded paper. The prisoner De.
freze at this time, says the prosecutor,
except winking his eye at NE. " At this
time Smith and the prisoner had alighted
from the wagon and were standing by it.
The prosecutor was sitting in the wagon.
He states that he was afraid of the men,
and unfastened his watch and handed il
to the prisoner; but 10 use his own words,
lit was TO be no bet until Smith put uI
forty dollars in Defreze's hands. ;" The
defendant Smith then took out pocket
: book, and without showing any money
p handed it 10 the prisoner. The defendant
Smith then tore open the paper, exhibited
2 five cent coin which had been concealed
| in il, scratches his Own pocket book and
: | the watch from Defreze and walked off.
I The prosecutor besOught him to comI
back, but he replied that he had shown
the prosecutor the Yankee trick, anC
walked on. The prisoner remained witt
the prosecutor q few minutes, then lief
, him, saying that che would go and &c
Smith to return the watch" Il does no
appear, however, that the prosecutor eve
saw the prisoner again until he confronted
l. him as his accuser. 1T was shown tina
q soon after the departure of the defendant
, two persons rode up TO the wagon of tn
prosecutor, who seemed TO them brighten
: ed and afraid of them. They assured hin
r they were his friends, and he gave then
narrative of his troubles, and they 9
once went in pursuit of defendants. On
= of these persons states that he h8t
seen the prisoner and Smith walkinI
along the road before they came up wit
v the prosecutor; aud on the same day the
: had attempted the same trick upon tn
q witness. The defendant Smith ha
dropped the card" in the same way an
n Defreze had picked ii up and taken on
= the coin, and wanted the witness to bC
!. | Smith that there was no coin in il. ii
Y also stated that he saw the prisoner a
e tempting the same thing some days before
= Another witness stated that he saw thes
e two defendants, on two different occt
e sions, two weeks before, arranging som
!. cards for like operation. According 4
Z the witness, the process is simpl3.
: card is spit open TO the center on or
O side, and five cent coin inserted; th
a card is then folded up with another col
+. enclosed. The office of one of the COZ
federates is TO drop the card, as if casua
re ly, in the presence of the victim, and the
II 10 turn away, while the other picks it u
II opens il, and takes out one of the coin
: and then rciolds it, all in full view of Il
" victim. On the approach of the Othe
70 | he claims the paCkage and at once Offe
D. to bet that there is a five cent coin in
r. The victim having seen the coin take
IS out, is easily entrappCd. "'Tis me-
" gambling trick, " said The witness; "the
N is nothing like robbery or larceny abo
N it, more than sny other gambling trick.
IN The law does not so regard it. On Il
e, contrary, the law would hold the seer
i | thnft On innncrnf snnrt rather ihnn .