Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-16

GREETED that Mr.. East did not define the
word felonious, so, perhaps, it may be
matter of regret that Judge Haywood did
not define what course of conduct would
constitute the kind of trespass which IS
an essential element in larceny, and
whether or not it is TO be restricted to the
sense of the violation of another's posses
sion in the common sense of those terms.
The books abound in cases where the
goods were parted with willingly and
there was really no trespass in the taking,
in the sense in which that term is COM
monty used. And yet the law raises
constructive trespass in all such cases. AS
in the case eitedsby Greenleaf, 3 Greenl.
Ev. 100. A felonious intent, says he,
may be proved by evidence that the goods
were Obtained from the owner by strata
gem. artifce or fraud. Another calls at
tention to an important distinction to be
observed between the crime of larceny
and that of obtaining goods by false pre-
lenses, and cites two cases In illustration
where the same fraudulent means were
used by the prisoner to obtain possession
of the goods in two separate cases. In
the one case the owner Intended to part
with his property, absolutely, and to con-
Yey it to the prisoner, but in the other he
intended only to part with the temporary
possession for limited and specific pur-
pose, retaining the ownership in himself
the latter case alone would amount ID lar
ceny, the former constituting only the
offense of obtaining goods by false pre-
lenses. Thus the same distinction is OBJ
served in all the old authorities. Where
the possession alone and not the right OF
property is obtained, by fraud or other
illegal means accompanied by the feloni-
GUS intent, it is larceny. 2 East T. Q.
6S5. Rex. VS.. Charwood, l Leach 212.
2 Russ. on Or. rs, 127.
There are many other cases in which
the owner parts willingly with the pos
session of his goods, in some manner OF
bailment and fraudulent conversion by
the bailee is held to be larceny. The es-
sence of the offense in that class of cases
being the fraudulent purpose at the time
of the bailment. The trespass is in the
fraud and deception practiced by the
owner, by which the possession was &C.
quired with felonious intent. The owner
has parted with the possession Of his
goods perhaps willingly, and hence no
trespass in its narrow and restricted sense
| il committed But when it is made ap-
parent that some stratagem or artitlce has
been fraudulently used to acquire the
possession, that the owner did not in fact
part with his goods willingly to be frau
dulently appropriated by the bailee, then
the crime is complete. This is wrong,
a trespass, a violation of the possession.
Thus it is said that the taking and carry
| ing away are felOnious where the goods
are taken against the will of the owner,
either in his absence or in q clsndestine
manner; or where possession is obtained
either by force or surprise or by any
trick, device or fraudulent eXpedient, the
owner not parting with his entire interest
in his goods and when the taker in any
such case intends, fraudulently, to de-
prive the owner of bis entire interest in
the property against his viii. Russ. Or.
Ev. $50. Applying these principles to
this case, we can see no escape for the
prisoner even upon the principles of the
Common Law independent of the pecu-
liar statute of our State. In the Ian
guage of Mr.. Attorney General Heiskell
it is at last but a return to the ancient prin-
ciples of the Common Law. The statute
makes it larceny to use any bailment or
agency merely as the means of procuring
possession of property, with an intent
at the time TO make fraudulent sppro-
pria.ion thereof. Code 4, $40. We think
all the elements of larceny under the law
exist in this case We have examined
this case very carefully indeed, hoping
that there might be some door of escape
for the prisoner upon the law and the
facts, as he is yet young man and per-
! haps capable of some industrial art in
which life of honorable toll might have
redeemed his good name. But thus we
find the law and thus it is our duty to de-
clare IL
| 1t is urged on behalf of the prisoner,
that the Court erred in admitting evidence
that the prisoner and Smith were seen on
| several occasions attempting to practice
] upon others the same artifice practiced
| upon the prosecutor. We think the proof
! IN this kind of case was legitimate and
! proper. The combination between the
parties, as shown in the proof, may be
classed as a conspiracy to cheat and de-
fraud whoever may be cheated, or who
| ever they might find an easy victim to
their artifice. And it is well settled, that
in such cases, general evidence of COM
bination TO defraud or attempt to defraud
others in the same way, may be shown,
to illustrate the 0liTnaL8 and intentions Of
the parties in the case in judgment. Re,
gina VS.. Frost, 9 c. 6 P. 129. Russ,
on Or. 500. 3Greenl. Ey., S. 80, 80,
Every circumstance, however slight, thsl
is calculated to throw light on the sup
posed crime Is to be considered, State VS.
Swink, Dew. & Bat, 9. As general
proposition of law, it is undoubtedly true
that no distinct and substantive crime
can be shown upon the trial, but this rule
is better understood as it is given in thu
text book, that the facts proven should
be strictly relevant to the particular
charge and have no reference to any con
duct of the prisoner unCOnnected Will
such charge; 2 Russ on Or. 772. An(
then it has been held that if it be msteri
al to show the intent with which the &C
charged was done, evidence may be giYel
even of a distinct offence, not laid in tn
Indictment. And q case of robbery j
cited in illustration, when the prisone
went with a mob 10 the hous
of the prosecutor, and one of tn
mob, with a good intention, apparently
advised him to give them something t
get rid of them and prevent mischief
upon which the prosecutor gave them tn
, money laid in the Indictment, it was hell
that for the purpose of showing that thi
was not BONA tide advice, but in reality
a mere mode of robbing the prosecutor
evidence was admissible of the demand
of money made by the same mob al Othe
houses, before and after the particula
transaction at the prosecutors hJuse, bu
in the course of the same day, and whe
, any of the prisoners were present; 4 {
& p IA. And upon an Indictment fO
! rObbing the prosecutor of his coat, tn
/ robbery having been committed b
7 the prisoner threatening to charge th
E prosecutor with crime, Holroyd, j., IT
] ceived evidence of a second ineffectu'
/ attempt TO obtain money the followin
{ day by SIMILAR threats and upon a cas-
t reserved, tue Judges were of opinion tina
e the evidence was admissible to show ths
: the prisoner was guilty of the forme
. transaction. Russ. and Ry. S75. TIL
e case of Britt VS. Tue State was an indie
: ment for obtaining money by false pre-
e fences. Tee prisOnsr pretended that b
} had warrant ayainst> the prosecutor fl
\ passing counterfeit mohey and by meal
e of threats and promises in regard theret
g extOrted bank notes from the prosecute
u in the county of Roane. On the mex
! day the prisoner again pursued the prose
: cutor into an adjoining county and false
n pretended that the prosecutor had stole
}, Ills coat and by means thereof extorte
J, from the prosecutor certain ;Tticles {
G clothing. The indictment charged Il
r, prisoner with obtaining the bank notes |
Is falsely pretending that defendant Ss
t. passed counterfeit money. 1t was he
n that the transaction in the adjoinil