Defrese v. State

• Decision Date: 30 September 1870
• Parties: R. H. Defrese v. The State.
• Court: Tennessee Supreme Court

50 Tenn. 53

R. H. Defrese

v.The State.

Supreme Court of Tennessee.

September Term, 1870.

FROM KNOX.

In the Circuit Court. E. T. HALL, J., presiding.

The indictment upon which the prisoner was convicted was in the common law form.

Hesikell, Attorney General for the State, cited Roscoe, Cr. Ev., 569, 576-7, m.; 2 Whar. Am. Cr Law, secs. 1849, 1787; State v. Long, 1 Hay., 154;Felter v. State, 9 Yerg., 397, 404, decided in 1836; and insisted that the Code 4678, 4679, restored the old rule of the common law; that in returning to the old rule the mode of proceeding was revived; that the statutes declared the act larceny, and evidently they meant that it should be so described, and so Hall v. The State, 3 Cold., 138, was a misapprehension of the statute. On admission of proof of substantive felony, he cited 1 Wat., Archb., 392, et seq., 395; Butt v. State, 9 Hum., 31 38;Perdue v. State, 2 Hum., 494.

E. C. Camp, for prisoner, contended that there must be a trespass to constitute larceny, citing 1 Bishop, Cr. L., sec. 427; 2 Id., 845, 816, 819;Felter v. State, 9 Yerg., 397. That the indictment does not charge a statutory larceny under the Code, 4678, 4679; Hall v. State, 3 Cold., 128. Evidence of substantive felony to prove scienter, 2 Russ on Cr., 772. Wm. H. Maxwell, with him cited, in addition, State v. Braden, 2 Tenn., 68;Robinson v. State, 1 Cold., 120; Dodge v. Brittain, Meigs, 84.

SNEED, J., delivered the opinion of the Court.

The prisoner and one J. H. 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 penitentiary for five years. The prisoner appealed in error. On the 8th of January, 1869, 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 a bridge near Ingles' mill when the defendant Smith came up to the wagon and asked permission to ride, which was given, and in a few moments, the prisoner Defrese, came up and also wanted to ride. The prosecutor observed 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 he states in his testimony that, “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, to 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 prisoner remarked that Smith had dropped 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 a 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 defendant, Smith, replied, “Oh, yes, I would not take ten dollars for that paper,” and proposed at once to bet ten dollars 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 the prosecutor replaced 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, Defrese, at this time, says the prosecutor, “kept winking his eye at me.” 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 it to the prisoner; but, to use his own words, “it was to be no bet until Smith put up forty dollars in Defrese's hands.” The defendant, Smith, then took out a pocket book, and, without showing any money, handed it to the prisoner. The defendant, Smith, then tore open the paper, exhibited a five cent coin which had been concealed in it, “snatches his own pocket book and the watch from Defrese, and walked off.” The prosecutor besought him to come back; but he replied that he had shown the prosecutor the Yankee trick, and walked on. The prisoner remained with the prosecutor a few minutes, then left him saying that “he would go and get Smith to return the watch.” It does not appear, however, that the prosecutor ever saw the prisoner again until he confronted him as his accuser. It was shown that soon after the departure of the defendants, two persons rode up to the wagon of the prosecutor, who seemed to them frightened and afraid of them. They assured him they were his friends, and he gave them a narrative of his troubles, and they at once went in pursuit of defendant. One of these persons states that he had seen the prisoner and Smith walking along the road before they came up with the prosecutor, and on the same day they had attempted the same trick upon the witness The defendant, Smith, had “dropped the card” in the same way, and Defrese had picked it up and taken out the coin, and wanted the witness to bet Smith that there was no coin in it. He also stated that he saw the prisoner attempting the same thing some days before. Another witness stated that he saw these two defendants, on two different occasions, two weeks before, arranging some cards for a like operation. According to the witness, the process is simple. A card is split open to the center on one side, and a five cent coin inserted; the card is then folded up with another coin enclosed. The office of one of the confederates is to drop the card, as if casually, in the presence of the victim, and then to turn away, while the other picks it up, opens it, and takes out one of the coins, and then refolds it, all in full view of the victim. On the approach of the other, he claims the package, and at once offers to bet that there is a five cent coin in it. The victim, having seen the coin taken out, is easily entrapped. “'Tis a mere gambling trick,” said the witness; “there is nothing like robbery or larceny about it, more than any other gambling trick.”^a1

The law does not so regard it. On the contrary, the law would hold the secret theft an innocent sport, rather than an adroit artifice concocted to evade its penalties, and so well calculated to subserve the ends of felony and fraud, when attempted on the credulous and unwary.

It is denied at the bar that the transaction is larceny, either at common law or under statutory modifications of the common law doctrine.

It was a remark of Baron Parks, that the definitions of larceny were none of them complete: 3 Greenl. Ev., 150. He objected to that of Mr. East, because he did not define the meaning of the word felonious. It is the doctrine of the common law, that the essence of the offense is that the goods be taken against the will of the owner; invito domino; Foster, 123. And for more than three score years the courts of this State have accepted as the law the opinion of Judge Haywood in the case of The State v. Long, 1 Hay., 154, that, to constitute larceny there must be a trespass in the taking. In that case, it appears that the Judges were equally divided upon the question, whether borrowing with intent to steal will support a charge of larceny. And this query was left in that case to stand for an answer: “Is a trespass in the taking an essential ingredient in the offense?” 2 Batt. Dig., 842. Judge Haywood, who was said by C. J. Henderson to be the greatest criminal lawyer of his time, answered that inquiry in a note to the case of The State v. Long, and such has been held to be the law in this State ever since, except as it has been modified by statute. As Baron Parke regretted 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 possession 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 commonly used. And yet the law raises a constructive trespass in all such cases,...