
    Felter vs. The State.
    Where -the possession of personal property was obtained from the true owner by false and fraudulent representations, under pretence of hiring, the party thus obtaining the property intending at the time to concert it to his own use: Held; that in this State, this did not amount to larceny.
    The material facts shown by the bill of exceptions are, that the prisoner, in February 1836, applied to Aaron D. Cochran, the keeper of a livery stable in Nashville, to hire a horse for two days, in order to go to Murfreesborough, alleging that he must return on the next day to take the stage for Huntsville, where he said he resided. He stated also that keen boarding two days or three days at the Nashville -Inn, which was proved to be false. He hired the horse from Cochran for two days, giving him two dollars; whereupon Cochran delivered him the horse, and he started on his way to Murfreesborough. On his way, and at Murfreesborough, he called himself Pryor. Six miles beyond Murfreesbo-rough he swapped the horse, but the other party becoming suspicious, that contract was rescinded. The next day, falling in with a man of the name of McKinney, he accompanied him home, and swapped with him for a horse of value much inferior to the one in his possession, receiving but five dollars in boot. He went to McMinnville and was there arrested and put in jail.
    The circuit court in this case charged the jury, 1st, ■“that there must be a taking of the personal goods of the prosecutor, and also a trespass committed in the taking. To .constitute a trespass in the taking, there must be a concurrence of two things, 1st, it must be done against the consent o-f the owner. 2d, the taking must be from the possession, either actual or constructive, of the owner; that if they should find there was a delivery of the horse by the prosecutor, under a contract of hire to the prisoner, though he, the prisoner, intended at the time within himself, to convert the horse feloniously to his own use, if he practiced no fraud to procure the delivery, he was not guilty of larceny, as there was no trespass; but if they should find from the evidence, that the prisoner did practice a fraud, or an artifice, or falsehood and deception, to procure the horse from the prosecutor, and in consequence of which, the prisoner procured the delivery of the horse to himself by the prosecutor, and the prisoner intended at the time feloniously to convert the horse to his own use, it would amount to larceny. The fraud, falsehood, arti- _ fice and deception would vitiate the consent of the owner and consequent delivery of the horse to the prisoner, and the felonious taking and carrying away the horse by the defendant would be larceny.” The jury found tbe defendant guilty. A new trial was moved for and refused, and judgment of confinement in the penitentiary was pronounced against him, from which he has prosecuted this writ of error to this court.
    
      
      T. P. Holman, for plaintiff in error.
    In order to constitute larceny, trespass in the original taking, must be committed. This doctrine is established by the whole weight and current of authorities. 1 Hay. R. 157: 2 Ten. R.- 08: Martin and Yerger’s R. 126: 5 Yer. R. 154, and the case of Hite vs. the Mate, 9 Yer. R. 19 #15?"
    The very essence of the crime of larceny is, that the taking of the goods must be without the consent of the owners ‘invito domino.’ This material ingredient in the offence of larceny has undergone great consideration both in England and this country. Sir William Russell, after citing a great variety of cases on this subject, concludes thus: “The cases which have been thus cited, abundantly establish the proposition first laid down, that where the property' in the goods' taken has been parted with by the consent of the owner, there can be no larceny. 2 Russell on Crimes, 105 and 118. And in a case of recent occurrence, the court said that the true meaning of larceny is, “the felonious taking the property of another without his consent and against his will, with intent to convert it to the use cf the taker.” Hammond’s case, 2 Leach 1089: 2 Russell, 93: 2 East’s Crim.- Law, 665. Notwithstanding the rule laid down by Coke, Hale and Blackstone, that there must be a taking- invito domino, or without the will or approbation of the owner, and that there can be’ no felony without a trespass, which is a plain rule easily understood, and one which leaves no latitude nor discretion to the judge or jury; yet it is admitted that there are modem cases, which, to a considerable extent implicate the' prisoner in the guilt of felony. The cases reported in Russell and East, which show that a delivery obtained by fraud with intent to steal, though under a hiring or purchase, is felony, are not supported by the elementary principles laid down by these authors.
    It is a settled and well established principle, that if the owner part with the property by delivery,- there can be no felony in the taking, however fraudulent the means by which such delivery was procured. Russell on Crimes, 109: 2 East P. C. 668, 669.
    Where the legal possession of the goods passes by the de» ail(^ consent of the owner, larceny cannot be commit-There is a distinction between a bare charge of goods and a bailment of them. In the case of a bare charge, the possession is considered as remaining in the owner, and a larceny may be committed of them by the person to whom delivered. In the case of a bailment, the possession passes to the bailee, and larceny cannot be committed by him. As if a weaver deliver yarn-or silk, to be wrought by journeymen, ⅛ his house, and they carry it away with intent to steal it, this is felony; the entire possession remaining there with the owner. But it would not be felony if the yarn had been delivered to a weaver out of the bouse, who thus having the lawful possession of it,- afterwards embezzled it, because by the delivery he had a special property, and not a bare charge. Russell on Crimes, 107-8, and 157: 1 Hale, 505 to 513. But it is believed that the case of the State vs. Braden, 2 Ten. R. 68, puts this case to rest. The doctrine contained in this case has never been overruled by the courts of this State, but has been at different times recognised as- binding authority, rind as having declared the principles of the common law, as they stood in 1775. In this case,- Judge Overton says, “the rule laid down in the note to the case of the State vs. Longj 1 Hay. 157, is correct law, and the reasoning in the note, though contrary to’ many late decisions in England, is incontrovertible. The books take a distinction between a bare care, distinct from the possession of goods. The distinction is nice, and should süch a case occur, it ought to be narrowly examined. The true rule is, that to constitute a felony, there must be a trespass in the original taking, which cannot be the case where the property has been previously delivered.” 1 Hay. R. 157: 4 Blackstone’s Com. 130-1: 1 Hale’s P. C. 5()4,607: Foster, 123-4: Porter vs. the State, Mar. andYer. R. 226. Wright vs. the State, 5Yer. R. 158: Hite vs. the State, 9 Yer. R. See also North Carolina Term R. 31.
    The doctrine contained in the note to the case of the State vs. Long, ! Hay. R. 154, is declaratory of the principles of the common law, as in force and use in the State of North Carolina, according to the provisions of the act of 1778. This doctrine is expressly recognised as the law of this Slate, 
      first, in the year 1S05, in the aforesaid case of The State vs. Braden, second in 1827, in the case of Porter v. The State, third in 1833, in the case of Wright vs. The State, and lastly, in 1836, in the case of Hile vs. The State¿
    
    
      George S. Yerger, Attorney General.
    The authorities clearly establish that this is a case of larceny, and it is so upon principle; nor do the cases relied upon as having been decided by this court, when correctly understood, establish a different rule.
    From an analysis of the cases, the following distinctions seem to be settled,
    1. When, not only the possession, but the right of property is parted with, though obtained by fraud, it is not larceny; there being then no general right of property, there could be no constructive possession. Rex ms. Harney, 1 Leach 467: 2 East’s P. Cr. 669, 671: Rex vs. Parks, 2 Leach 614: Rex vs. Jackson, Ryan and Moody 119: Rex vs. Mams, Ryan and Russell 225: 2 Russell 120.:
    2. Where the possession is obtained originally Iona fide, and the party subsequently converts them to his own use, here there being no felonious intent nor fraud in obtaining them, there can be no larceny. Rex vs. Harrison, 1 Leach 47: Rex vs. Leigh, East P. Cr. 694: Rex vs. Mickloio, Ryan and Moody, 160: 2 Hale P. Cr. 504: 1 Hawk. c. 33, § 2: Porter vs. The Slate, Mar. and Yerg. Rep. 226.
    But thirdly, where the possession alone, and not the right of property is obtained by fraud or other illegal means, accompanied at the time by the felonious intent to convert the property, it is held by all the cases, to be larceny. Arch. Cr. P. 182,'185: Rex vs. Slock, R. and Moody 87: Rex vs. Pear, 1 Leach 212: 2 East P. Cr. 685: Rex vs. Charwood, 1 Leach 409. See particularly 2 Russell 113, 127, where it will be seen this precise case has been frequently decided.
    If the horse is bona fide hired, for a particular purpose, and after that purpose is accomplished the party sells the horse, it will not be larceny. Arch. Cr. PL 187: Rex vs. Banks, Ryan and Russell 441. Rex vs Leary, 4 C. and Payne 241.
    These decisions are not, as has been supposed innovations uPon oldrules of the common law; they are in strict con-'* formity with settled principles and analagous cases, decided lone before the revolution. °
    , . , . ■ To constitute larceny, neither the ancient nor modern decisions required an actual possession, If the right of property existed, and the party had a Constructive possession,- larceny could be committed, although the thief at the time had', the actual possession'.
    Thus, if á' man, ' feloniously and fraudulently sued out # replevin, and by that means obtained possession of another man’s horse and convert him; or, if by a fraudulent ejectment he gets another man’s house and furniture into possession, and converts the latter, it has been held from time immémorial to be larceny. 1 Hale’s PL Cr. 507: 1 Hawk. c. 33, § 12: 3 Institute 108: Hex vs. Far, Kelygn. Rep. 4-3.’
    Where the defendant intending to steal, obtained goods from a servant by delivery, it was held larceny. Rex vs. Longbruth, Ryan and Moody 137. So, where they were', obtained by delivery from a slave, it was held by this court to be a violation of the constructive possession of the owner. ffitev s. The State, decided at the last term, by this court.'
    The principle of these last cáses, as well as those cited from' Coke, Hawkins and Hale above, is, that where possession of property is obtained by fraud, or other illegal means, and the actual possession parted with, if the felonious intent existed at the time, it is larceny, because the fraud vitiates the contract,'- and there is really no assent given. The right of property not being parted with, the owner is still constructively possessed,- and the taking being animo furandi, is against his consent, because the consent was given upon a state of facts which did not exist, but which were fraudulently represented to exist; the contract is null, — it is as if it never existed — it is ended the moment it is made.
    Where there is fraud, there is no assent; if there is' no as-" sent, there is no binding contract. Powel on Contracts 85, 86.
    If the contract is null for fraud, the possession of the thief is merely a charge or custody; he never had a lawful possession. And like the possession of a slave or servant, his steal-fog the goods, will be larceny. 2 Russell 197: United vs. Clew, 4 Wash. Cir. Ct. Rep. 709. r
    % The case of larceny, is like a constructive breaking in bur■glary. A breaking is necessary to constitute the crime of burglary; but if the buj-glar procures the door to be opened by fraud, it is a constructive breaking and sufficient. 2 Russell 10, 11, 12.
    It is admitted, that in larceny the taking must be invito domino against the consent of the owner. Where there is no contract and the party takes the property, it is against the consent of the owner. Where there is a contract, by which possession is obtained, but which is null and void, there is no legal assent to the delivery, for if there were, it would be binding •on the party. If there were no legal assent, and the property was delivered the thief intending to use it different from the terms stipulated, it is literally a delivery invito domino. The constructive possession remaining with the general owner is violated; if that is violated, it precludes all idea of an assent, for it could not be violated if a legal consent were given. 2 Russell 115, 117. -State vs. Covington, 2 Bailey’s Rep. 569.
    The case of Porter vs. The State, Mar. and Yerg. R. 226» ■was correctly decided; it was a case of finding; the possession was lawfully obtained, and the subsequent conversion does not, upon common law principles, make it larceny. All the cases cited upon the second point, sustain that decision, and such is the common law in relation to finding. 3 Institute 108: 1 Hawkins c. 33, § 2. 14 John. Rep. 294: 1 Hale 506.
    The note in 1 Hay. 67, so far as it conflicts with this reasoning is not law. The case in second Overton was probably decided correctly, as to the facts. The principles there laid down are correct, and really do not conflict with those here laid down.
    All the American courts, have so far as my knowledge extends unanimously decided a case of this kind to be larceny. The State vs. Self, 1 Bay’s Rep. 242: State vs. (¡rorham, 2 Nott. and M’Cord: State vs. Jaruagin, 2 Taylor’s Rep. 44: Commonwealth vs. James, 1 Pick. Rep. -And the ruléis recognized in 8 Cowen’s Rep. 503.
   Reese J.

delivered the opinion of the court.

The question is, whether the charge of the circuit court in this case is in point of law correct.

In the year 1795, a jury, in the ease of The State v. Long reported in 1 Hay. Rep. 154, found a special verdict, which in substance stated, that Long borrowed a mare of Parks to ride to the house of Candles about four miles from that of Park’s, and was to have returned her to Parks after riding thither; that he did ride her to the house of Candies, but did not return her to Parks, but forthwith rode her into the county of Lincoln, a distance of eighty miles from the house of Candles, and then sold her to one flay le, as his own property; that he did not take or get the mare into his possession, otherwise than as stated. That the said Long, when he so got the possession, did the same with the fraudulent intention not to return the said mare to Parks, but to sell and dispose of her as stated, and they submit to the court, the question, whether such taking amounted to felony, or not. Tv.o Judges, Ashe and Macay, were of opinion that it amounted to felony, and the other two Judges, Williams and Haywood, were of opinion that it’ did not. One of these, Judge Haywood, (the reporter of the case,) appends to it a note, in which among other things he says. “The criminal coda above all others, should leave nothing to the discretion of the court or jury, but should be regulated as far as the nature of the thing will admit by fixed rules, not difficult to be understood, and incapable of being construed away. The rule laid down by Coke and Hale, Hawkins, and Blackstone, that there must be a taking invito domino, and that there can he no felony without a trespass, is a plain rule, comprehensible by every capacity, and in its nature not easy to be misconstrued, it leaves no latitude to the Judge nor any to the jury. The plain question is, is it a tortious taking. But should the question be, did he borrow or hire with an intent to steal? that being an act of the mind, and to be discovered by circumstances only, leaves the fate of the prisoner entirely in the discretion of the court and jury. In the case of a man of good character, or one they were inclined to favor a borrowing and selling afterwards as his own, might easily be deemed innocent, or at least excusable. He might be supposed to do it, with design to make a good bargain for the owner, and to deliver the money to him, or from confidence of his assent <&c., when before the same court and jury, another of but indifierent character, or where they were not disposed to favor, for borrowing and the selling, or for borrowing and not returning might be sentenced to death.” In another place, he adds, “with reasonable care in the owner, an oiTence of this kind can never happen. Let him not lend his property to a man ho doss not know, or in whom he cannot safely rely, and ho will never he deceived in this' manner. But if he will lend it to a stranger he does not know, and that stranger deceives him, he should blame his own imprudence; he has contributed to tho deception himself, and he has no right to expect the law to animadvert with the same severity on the conduct of the deceiver, as if himself had been perfectly passive. The man who has not trusted his property with precarious hands, and who docs what is usual to secure it, and yet has it invaded by a taking away without his consent, is surely more to be regarded than the man who has lent it?”

Such is part of the note in the case of The State v. Long, so often referred to in the discussions of the courts of this State.

Six years after the decision of the case of The State v. Long, came on the case of The State v. Braden, in this State 2 Ten. Rep. 68. Overton Judge, in that case, says, “that the rule laid down in the note to the case of The State v. Long, 1 Hay. 157, is correct law, and the reasoning in the note, though contrary to many late decisions in England is in-conti'overtable.” To constitute a felony, there must be a trespass in the original taking, which cannot be the case, where the property has been previously delivered.” White, Judge, “considered the oldlawas most correct, and that Judge Haywood’s opinion was the true one in a free country. It was important that legal principles should be settled; where -the discretion of a Judge commences, there Law ceases?”

In the case of Reece Porter v. The State, Mar. and Yerg. 226, White Judge, who delivered the opinion of the court, says. “The common law as it stood in 1775, was adopted in this State, what that common law was, may be seen by reference to 1 Hayd. Rep. 157, in note, and the case of The State v. Braden, 2 Ten. Rep. 68.”.

In the case of The State v. Wright, 5 Yerg. 158, the authority of the above cases are incidentally acknowledged. The Judge who gives the opinion of the court in that case, states, that “to constitute larceny, there must be a trespass in the taking; that cannot be where the possession is obtained by consent of the owner, nor could it be, if the goods were lost because they would not in such case be in the owners possession, so as to make it possible a trespass could be committed in taking them, all that is said in the books therefore in rela? tion to the consent of the owner to part with his goods, .amounts only to this, to make a taking larceny, there must be a trespass, and as there can be no trespass where the party taking has the owners consent; so neither can there be larceny.” So, also, in the case of The State v. Hite, the Judge, who delivered the opinion of the court, says “it is certainly true, that to constiute the crime of larceny, a trespass in the original taking must have been committed upon the right owner, as is stated in the note, to the case of The State v. Long, 2 Hayd. 154: 2 Yerg. 68: and Mar. and Yerg. 226. The authority of these cases is admitted &c.”

Thus uniformly, for the last thirty years, has the opinion of Judge Haywood in the case of The State v. Long, been acknowledged and sanctioned by the courts of this State. We are fully aware, and readily admit, that the settled law of England, and of several States of our Union, is in conflict with the principles of that opinion, and it'may be also true, that a rigid analysis of the facts of the several cases referred to in this opinion, might prove, that to affirm the Judgment of the circuit court in the present case, would not overrule or unsettle the judgment in those cases as to the points raised by the-record. Rut there is no question, but that it ⅞/ould be in opposition to the uniform' action of our courts and to tne uniform and unbroken tenor of judicial and professional opinion in this Slate. If we deemed it error, it would be án error, which we should not feel at liberty to correct: an error in the judicial action and opinion of all our courts and judges and lawyers for the last forty years; an error protective of the liberty and safety of the citizen, limiting the dangerous range of discretion in courts and juries, and tending to' place the distinctions of our penal code, upon broad and well marked lines. It in any case, we could apply the maxim comniunis error facit jus, if ought to be applied to such a case as this. But we are satisfied with the reasoning of the note' to the case of The State v. Long. The facts of that case, were stronger against the prisoner, than are those of the presi_ ent; Long borrowed the mare to go four miles, and return. It would hot have taken hint' more than two hours, he went •forthwith eighty miles. Here the Prisoner hired the horse" for two days, and paid the sum of two dollars. He swapped the horse in the vicinity of the place to which he alleged he' iVas going. There is but little doubt in either case, that thtf purpose was fraudulent.

There is a distinction drawn by the court in the charge tcf the jury, in the case before us, which we do not fully comprehend. They were told, that if there was a delivery of the' horse by the prosecutor to the prisoner, upon a contract of hiring, altho’ the prisoner at that time, within himself intended to convert the horse feloniously to his own use, if he practiced no fraud to procure the delivery, he was not guilty of larceny, as. there was no trespass. But if he did practice an artifice, falsehood and deception, it would make him á trespasser and fel<S; Why? In the case just put, the very contract of hiring would be fraud, artifice, falsehood and deception, which ought td^be as available, it would seem to “vitiate consent” as any collateral falsehood or artifice. It is safer and better we think, to adhere to the fixed and plain rules on the' subject of larc&y, heretofore, and for so long a’ time adopted and acted on in tins State.

Let-the Judgment be reversed, and a new trial be’ granted.-

Judgment reversed.  