
    Reuben Kilpatrick v. Commonwealth.
    Criminal Law — Trespass.
    Where one employed to play for a dance is not paid for his services and takes a violin, intending to keep it only as pay, and makes no effort to conceal it, he is only guilty of trespass and is not guilty of larceny.
    APPEAL FROM HARDIN CIRCUIT COURT.
    February 19, 1880.
   Opinion by

Judge Pryor:

There is proof conducing to show that the appellant was only guilty of a trespass in taking the violin. He had been employed to' play for the dance, and being denied payment for his services, took the violin in discharge of his claim. He made no effort to conceal the-taking, or the fact that he had it in possession, until after the charge of larceny was made against him. It seems to us that this phase of the case should have been presented to the jury. If he took it merely as a trespass he is not guilty of larceny.

Montgomery & Marriott, for appellant.

Hardin, for appellee.

Judgment reversed and cause remanded with directions to award a new trial and for further proceedings.  