
    STATE vs. BRADEN,
    
      Nashville,
    
    
      Nov. 1805.
    Indictment for horse stealing, being felony without benefit of clergy.
    To constitute felony, there must be a trespass in the original taking.
    It appeared in evidence, that Willie Barrow had advanced money for the defendant, and he took the horse, for the stealing of which he is indicted, in pledge, with liberty to use the horse in working a gin ; and the defendant had rode a mare of Barrow’s to Nashville on business of Barrows.
    Barrow saw him in Nashville & told him to carry the mare home and bring him the horse to return on.
    The defendant went to Barrow’s where he usually worked, left the mare, and that night took the horse and went off—after some days, the defendant was pursued, taken up and brought back. He confessed that he took the horse, but he considered him as his own property, that he intended to come back and finish the work.
    
      White for the defendant.
    As the defendant had a claim to the property, it was not larceny 4th Bl. Com. 230. 231, Foster 123, 4, 1 H. H. P. C. 513.
    
      Whiteside for the State,
    insisted e contra, that a man may be guilty of felony by stealing his own goods, as where he delivers goods to another, and then steals them with intent to charge the bailee with the value ; and the intent with which they are taken, must be collected from the circumstances. They show in this case that he meant to deprive Barrow of his horse.
    After being apprehended, he told different stories. No rule can be laid down what shall amount to a felonious intent, it must be collected from circumstances 1 Hale 513 509, 1 Haw. 34, 145.
    
      White in reply.
    The attorney general has read several cases which have been determined in England since the year 1775.
    
    Some of these cases overrule those in the most respectable ancient writers, and overturn the original principles of the common law.
    These principles are fixed, and certain, as to what shall constitute larceny. No larceny can be committed without trespass, and invito domini. 1 Hay. 154 State vs. Long H. H. P. C. 505, 667, 668.
   Overton J.

The rule laid down in the note to the case of the State vs. Long 1 Hay. 157 is correct law, and the reasoning in the note though contrary to many late decisions in England is incontrovertible. As it is adopted, it were useless to repeat it.

The books take a distinction between a bare care, distinct from the possession of goods. The distinction is nice, & should such a case occur, it ought to be narrowly examined.

The true rule seems to be adverted to by the counsel for the defendant, 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.

It will be a breach of trust, or fraud, but cannot amount to felony.

Where a person has not parted with the general property, and holds up a claim, or there is a dispute, and he takes the property, such taking ought not to be considered felonious prima facie.

The circumstances however, are with the jury. If a person delivers property to another for a special purpose, he does not part with the general property, and it would seem, that the taking of the property, having a claim to the same would not be felony, unless from circumstances affording the clearest evidence, it appeared that the taker make to charge the bailee with the value of the goods, or produce other loss to him.

As to any consequent injury that might arise to the bailee from taking away the goods, it ought not to make it felony.

If Barrow did not authorise the taking of the horse in the first instance, it would be felony, otherwise it would not. The sword of justice is not to avenge breaches of confidence which is left to interposition of the civil law.

White J.

considered the old law, as the most correct, and that Mr. Haywood’s opinion was the true one in a free country. It is important that legal principles should be settled. Where the discretion of a judge commences, there law ceases. Upon the second point he stated, that where a man pawns goods and afterwards takes them away, by which the bailee is injured, it is as much felony, as in any other case : The pawner being deprived of his goods, may be as wicked, and inflict as great an injury as could otherwise arise.

Verdict—Not Guilty.  