Lancaster v. State

• Court: Tennessee Supreme Court
• Writing for the Court: SHACKELFORD
• Citation: Lancaster v. State, 43 Tenn. 339 (Tenn. 1866)
• Decision Date: 31 December 1866
• Parties: Lancaster & Smith v. The State.

43 Tenn. 339

Lancaster & Smith

v.The State.

Supreme Court of Tennessee.

December Term, 1866.

FROM SMITH.

At the November Term, 1866, plaintiffs in error were convicted, and sentenced to three years' imprisonment in the penitentiary. Judge ANDREW MCLAIN, presiding. Defendants appealed.

DEWITT, HEAD, MCHENRY & SWOPE, for Lancaster & Smith.

THOS. H. COLDWELL, Attorney General, for the State.

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

The plaintiffs in error were indicted in the Circuit Court of Smith County, for horse stealing; were tried by a jury of the county, and a verdict and judgment rendered against them, and sentenced to serve three years in the penitentiary. A new trial was moved for, and overruled; from which they have appealed to this Court.

The facts necessary to be stated, for the understanding of the principles involved, are: On the night of the 26th of August, 1863, a mare and horse belonging to Dean, and one to Mrs. Donahue, were taken from their possession. On the next day the horses were found in the possession of the plaintiffs in error. The day before the taking, the plaintiffs in error with several other persons, met at a shop in the neighborhood, in which the propriety and legality of taking property from those in hostility to them, was discussed and determined upon. The plaintiffs in error stated that they had been robbed by a party of rebel guerrillas of their property a few days before, and they were going to take the property of rebels in return, to compensate themselves, and that they had the right to do it. The plaintiff, Smith, had a few days previous been robbed of his horse--his hat and clothing stripped from him. Lancaster had been, a short time previous, robbed of all his property. The plaintiffs in error were unconditional Union men, and the opinion prevailing in the community, was, that they had the right to take the property of rebels to re-imburse themselves.

On the day after the re-capture of the property, Dean was arrested by the Federal troops, and being a soldier in the rebel army, was sent to a Northern prison, where he died. Lancaster was a soldier in the Federal service, and at that time was on furlough. Smith joined the Federal army a few days after the taking. There is no proof to convict the plaintiffs in error with the arrest of Dean. The counsel for the plaintiffs in error objected to the introduction of the testimony of Dean's arrest and subsequent imprisonment and death, unless the State proved the plaintiffs in error had some connection with it. The objection was overruled, and the evidence permitted to go to the jury.

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 demonstrate a felonious intent, and the intent being necessary to complete the offense, if a man under the honest impression that he has a right to the property, takes it into his possession, it is not larceny. In this case, if the defendants honestly believed, that, by the rules of war, they had the right to take the property of rebels, to reimburse themselves in their losses occasioned by rebels taking their property; if...