Phillips v. State
| Citation | 3 S.W. 434,85 Tenn. 551 |
| Parties | PHILLIPS v. STATE. |
| Decision Date | 08 March 1887 |
| Court | Supreme Court of Tennessee |
Appeal from criminal court, Davidson county.
Indictment for burglary and larceny.
James M. Quarles, for appellant.
The Attorney General, for the State.
Some one entered the dwelling-house of Mrs. Moore by night, and took therefrom certain clothing belonging to Mrs. Sue K Seawell, and certain other clothing belonging to her daughter, Miss Roberta Seawell. The goods were taken on the same occasion, and from the same room; but those belonging to the mother were taken from their place on one side of the room, and those belonging to the daughter from their place on the opposite side of the room, so that the two parcels could not have been taken into the possession of the same person at precisely the same moment of time. Two indictments were returned against Grant Phillips,--one of them charging him with burglariously entering the house, and committing a larceny, by taking and carrying away "four dresses, * * * the property of Mrs. Sue K. Seawell;" the other charging him with the simple larceny of the clothing belonging to Miss Roberta Seawell. He was arraigned and tried upon the former of these indictments, and acquitted; and then upon the latter indictment, and thereto " pleaded not guilty, and once in jeopardy," and on the trial he introduced the record in the other case as evidence to sustain his plea of once in jeopardy. This time he was convicted, and his punishment assessed at three years' imprisonment in the penitentiary. He has appealed in error.
Upon the plea of once in jeopardy, the trial judge said to the jury "that if Mrs. Seawell and Miss Roberta Seawell were the owners of different lots of goods in the same room, and they were feloniously taken and carried away, although it was done on the same evening, and during one continuing trespass it would be two separate and distinct larcenies, and a former trial of the defendant for the larceny of Mrs. Seawell's goods would be no bar to a trial under the present indictment for the larceny of Miss Roberta Seawell's goods." The learned counsel for the prisoner earnestly insists that this instruction is erroneous; that the acquittal upon the other indictment is a complete bar to the prosecution upon this one,--in other words, that the reverse of the instruction given is the law; and that, for this error, a reversal should be had, and a new trial granted.
The court was right, and counsel is in error. The instruction quoted is correct as applicable to the facts of this case. The goods of the two ladies, though in the same room, were in different parts of that room, and so far apart that the thief could not have taken those belonging to the mother and those belonging to the daughter at the same moment of time, and by the same act. The taking into his possession of the goods on one side of the room, and the removal of them from their place, without the consent of the owner, and with the intent of appropriating them to his own use, and depriving the owner thereof, constitutes a complete larceny; and if the thief had been apprehended in the middle of the room, as he passed from one side to the other with the goods already taken in his possession, the crime would have been perfect,--the trespass as to the owner of those particular goods and the asportation would have been finished. The thief was then guilty of the larceny of the clothing he had then taken under his dominion, and what he did afterwards was another crime. It was the taking and carrying away of the goods of another person, in a subsequent moment of time, and by different movements of his hands and body, with the necessary felonious intent. The taking of this other person's goods was without her consent, and was therefore a trespass against her; and all the goods were actually carried entirely off the premises, and dropped some distance away. The taking of the goods of the mother was a trespass against her, and not against her daughter; and the taking of the goods of the daughter was a trespass against her, and not against her mother.
Then were there not necessarily two trespasses,--the one as to the mother, and the other as to the daughter? Most certainly so; and the one was completed before the other was commenced. Then, with reference to the asportation, the goods first taken into the dominion and possession of the thief were by him carried across the room, to the place of those belonging to the other person, or those last taken were carried to the place where the thief deposited those first taken for the time being. In either event the carrying away was complete in legal contemplation; there was an asportation of each lot of goods. Neither of the ladies had the possession of the goods of the other, or any property rights therein; hence the trespass and asportation as to the one was no kind of legal offense, against the other. The wrong to one of them was no wrong to the other; and, if the wrong as to each was not a complete crime within itself, there was no crime at all, because two acts involving the distinct property and rights of different individuals cannot be coupled in order to constitute one offense against the law. The trespass, as against Mr. Moore, the owner of the house invaded, was continuous so long as the thief remained upon his premises, his presence there being without the consent of such owner; but the trespasses against the ladies were entirely different things. The offenses against them would have been the same if the thief had been rightfully upon the premises.
This court, speaking through Judge TURNEY, in Morton v. State, said: ...
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