Pritchett v. State

• Decision Date: 31 December 1854
• Parties: JOHN PRITCHETT v. THE STATE.
• Court: Tennessee Supreme Court

34 Tenn. 285

JOHN PRITCHETT

v.THE STATE.

Supreme Court of Tennessee.

December Term, 1854.

FROM DAVIDSON.

The prisoner was indicted and convicted in the criminal court of Davidson, before Turner, judge, of the crime of larceny, and judgment of imprisonment in the penitentiary pronounced against him in accordance with the verdict of the jury. He moved for a new trial and in arrest of judgment, which being severally overruled, he appealed in error to this court.

Foster, East, Shane, and Vaughn, for the prisoner; Sneed, attorney-general, for the State.

Caruthers, J., delivered the opinion of the court.

Indictment for stealing a watch worth $80; conviction; motion for a new trial overruled in criminal court of Davidson, and appeal in error to this court.

The case, as made out by the proof, is that a man by the name of Stimple left his watch with a silversmith, named Wagoner, on Market street, to be repaired; that on the occasion of an outbreak of fire in the shop of the smith, by the explosion of gunpowder, the window in which it hung, with other watches, was blown out upon the pavement, and that it was taken by the defendant, either from the window or the pavement, with the intent to appropriate the same to his own use and deprive the owner thereof.

The only question upon the merits is whether the taking under these circumstances constitutes the crime of larceny. It is contended that if the watch was upon the pavement it was lost, and therefore not the subject of larceny, so as to make out this offence, as the law require that there should be a trespass in the taking, and that this cannot be where there is no possession in the owner, either actual or constructive.

This is certainly the well-settled law of this state, and would necessarily result in the acquittal of the defendant if the first assumption, that the property was lost, in the sense of the law as expounded in our cases, can be maintained.

The law is very correctly stated by his honor the criminal judge, in his charge in this case, upon the point in controversy.

The English courts, in some cases, as well as those of several of our sister states, have gone further, and ruled that in a case of finding lost property, if the owner be known, or could be ascertained, and the finder, instead of restoring it, converts it to his own use, he is guilty of larceny. Whart. 564; 9 Com. 527. But we have not gone so far in this state, but have uniformly held that to constitute this crime there must be a trespass in the taking; and this cannot be, unless the goods were, at the time they were taken, in the actual or constructive possession of some one. Lost goods, therefore, are not the subject of larceny. Porter v. State, Mart. & Y. 227; 1 Humph. 228.

This being the settled law of our state, the only difficulty is in applying it to the facts of each particular case. This difficulty arises from the want of a correct and uniform understanding of the meaning of the terms “lost” and “““constructive possession.”

It was decided in Lawrence v. The State, 1 Humph. 228, that where a man unintentionally left his pocket-book in a barber's shop, where it was stolen by the barber after he left, it was not lost, but still in his constructive possession, if he recollected, after he missed it, that he had left it at that place. The defendant in that case relied upon the defence that the money was lost. In the case of Moran v. The State, at the present term, we held that where the prosecutor, who had been engaged in a job of work on his own farm with defendant, and...