
    Wright vs. The State.
    To constitute larceny, there must be trespass in the taking,  )
    If goods are lost there can he no possession upon which there can be a ^trespass.
    If a person receive goods, knowing them to he stolen, having at the same time a fraudulent intent to deprive the owner of them, he will be guilty of receiving stolen goods under the act of 1829, ch. 23, sec. 26, although he may have had the owner’s consent to receive them for him. 
    
    It is the intent with which a person receives stolen goods, that ejther makes him guilty or innocent of a felony under the act of 1829, ch. 23, sec. 26.
    A man by the name of Boon, on his way to the Arkansas, camped near Mr. Shelton’s, in Davidson county; during the night, he had stolen from his wagon, bank notes and some specie, amounting to four hundred and fifty dollars. In the morning he had several of the neighbor’s negroes taken up, on suspicion of having taken the money, (they having been seen about the place on the evening before, and at night;) among them was Bob, the negro of Mrs. Wright, the mother of defendant. No discovery being made from the examination of the ne-groes in the morning, Mr. Boon requested those present (the defendant being one of them) to keep a look out and watchful eye upon these negroes, and to try and get the money from them, for that they had taken it, and to keep it for him, which they all promised to do. Bob was seen to have money, and offered to pass, or asked if he could get a fifty dollar note changed; his young master took him up and got from him one hundred and fifty dollars. In a few days, suspicion fell upon Wright from gome information given by Bob, and two hundred and fifty dollars was found in his trunk with his other papers and things. *
    
      There were two counts in the indictment; one for stealing the bank notes from Boon, and the other for receiving or buying it from Bob, fraudulently knowing it to have been stolen, &c.
    The first count was surrendered, and the jury was told to find for defendant, by the attorney general. On the 2d, the judge was asked to charge the jury to this effect: that if they should believe from the evidence, Boon requested and authorized the defendant with others, to get this money from the negro or negroes, and keep it for him; and that, in pursuance of this authority, the defendant did get the money from Boh, it would not be felony, although at the time of receiving it he intended to apply it to his own use; but the judge charged, that it would be felony, and the jury brought in a verdict of guilty on this count.
    
      G. S. Yerger and J. P. Clark,
    
    for plaintiff in error. For the plaintiff in error it is insisted, that the judge was wrong, and for this reason, that Boon had made the defendant his agent, trustee or receiver, and therefore he could not be guilty of any thing more than a breach of trust, in getting and receiving the money so entrusted to his care, management and control; and the following authorities are relied upon. Hale, '504, 5: 2 Leach’s C. C. 835: Chit. C. L. 918: 1 Har. ch. 31, sec. 1 and 2: 1 Hay. 157, note: 2 Ten. 68: Martin and Yerger, 226: 14 John. Rep. 294: East’s Pleas of the Cr. 697, 664: 1 Hawk. 208, sec. 1 and 2; 4 Jacob’s Law Die. 76: 5 Rep. 31: 3 Institute, 107.
    
      Andrew Hays,
    
    Attorney General for the 7th District, and Collinsworth for the State. The only question raised by the bilk of exceptions is, whether the general request on the part of Boon, made as above stated, be such an authority to receive the money as will exculpate him from the penalties of the act of 1829, ch. 23, sec. 26, Haywood and Cobb, 247. The above recited act provides, that any one receiving stolen goods, &c. with intent to deprive the true owner thereof, shall undergo confinement, &c. There is no exception made in favor of a party who received it by request or authority of the owner, if received with the intent specified by the statute.
    There can be no exception to a statute where the act does not make it. Copke and Jack vs. M’Ginnis’ Administrators, &c. Martin and Yerger’s Rep. 361: Patton vs. M’Clure, Mar. and Yer. 333. And this rule applies equally to criminal cases. Were it otherwise, any attempt to obtain assistance in the procuration of his goods by advertising, (in which he authorizes all the world to receive them,) or otherwise, would defeat the punishment intended by the law, and render it an entire nullity.
    
      
       Porter vs. The State, Martin and Verger’s Rep. 226.
    
    
      
       Cassels vs. The State, 4 Yerger’s Rep.
    
   Creen, J.

delivered the opinion of the court.

The defendant was tried and convicted in the circuit court of Davidson county, under the 26th section of the act of 1829, ch. 23, of “fraudulently receiving stolen goods, knowing them to be stolen, with intent to deprive the true owner thereof.” It appeared in evidence, that a man by the name of Boon, lost four or five hundred dollars, it having been stolen from him by a negro slave, Bob, belonging to the mother of the plaintiff in error. The morning after the money was stolen, several of the neighbors were collected together, and among them the plaintiff in error; when Boon requested them “to watch the negroes, and endeavor to obtain the money, and keep it for his use, which they promised to do.” Afterwards, the plaintiff in error received the money from Bob, with a fraudulent intent to deprive Boon thereof, and he now asks a reversal of the judgment, on the ground that Boon authorized him to receive it. It is argued earnestly by the counsel for the plaintiff in error, that he had lawful authority to receive the money, and that therefore, he cannot be guilty of felony, but is only guilty of a breach of trust. To sustain the position, 2 East’s Crown Law, 765, is relied on asplacing this construction on the acts of 3 W. and M. ch. 9, sec. 4: 5 Ann, ch. 31, sec. 5, and 22 G. III, ch. 58. This authority does not prove the doctrine to sustain which it is introduced. In order to understand it, we may remark, that the provisions of these statutes are not like ours. They provide, with but little variation of language, “that if any persons shall buy or receive any goods or chattels, that shall be feloni-ously taken or stolen from any other person, knowing the same to be stolen, he or they shall be,” &c. To constitute a receiver, under these statutes, it is “sufficient,” says the author, “if the (goods) be in fact in his possession, in any manner malo animo, as to favor the thief, or without lawful authority express, or to be implied from circumstances, as in the case after mentioned, determined by Mr. Justice Foster.” Now what was the case determined by Mr. Justice Foster, by which the author illustrates his meaning. Simply this: A widow was indicted for having in her possession divers pieces of canvass, marked with the King’s mark, she not being a person employed by the commissioners of the navy to make the same for the King’s use. Her defence was, that it was customary with persons entrusted with the King’s stores, to make sale of the old sails which were no longer fit for use; that the canvass produced in evidence, had long before been made up into table linen and sheeting; had been used publicly in the family before her husband’s death, and afterwards had been used in the same public manner by her up to the time of the prosecution. The only question was, whether the canvass had been purchased from the King’s officers or not. The counsel for the crown insisted, that to show it had been purchased, a certificate from the officer who sold it, as provided for by the act, was the only evidence that could be received. But Mr. Justice Foster said, this was too rigid a construction of the act; that though the certificate was not produced, the evidence offered was admissible; and that, if the jury believed she came by the canvass without any fraud or misbehavior on her part, they should acquit her; and she was accordingly acquitted.

This case shows, that the lawful authority spoken of in the text, is to be understood as applying to an honest and lawful reception of goods. That the goods were stolen at all, was not established. The evidence repelled the idea that the husband had stolen them, and on the contrary, furnished a strong presumption that he had purchased them. If it had been shown that the husband had stolen the goods, and the defendant knowing that fact, had received them as part of his estate, although by ' act of law they came to her, yet she would have been guilty; for the judge expressly puts her acquittal upon the ground, that the jury should find she came to the possession of the linen without fraud or misbehavior on her part.

The rule, that to constitute a larceny the taking must !be against the consent of the owner of the goods, is attempted to be applied to this offence. There is no analogy between the two cases, so far as this question is concerned. To constitute larceny there must be a trespass in the taking. That cannot be, where the possession is obtained by the owner’s consent; nor could it be if the goods were lost, because they would not in such case, be in the owner’s possession, so as to make it possible a trespass could be committed in taking them. All that is said in the books, therefore, in relation to the consent of the owner to part with the possession of his goods, amounts only to this, that to make a taking larceny, there must be a trespass; and as there can be no trespass, where the party taking has the owner’s consent, so neither can there be a larceny. But as in this case no question about a trespass can arise, the doctrine about consent as applicable to larcenies, cannot be applied here. But independently of all this, our act of assembly, under which the plaintiff in error was convicted, excludes, by its plain, full and minute provisions, the construction contended for. Under this act, the only enquiries are, whether the accused received the goods, knowing thep to he stolen, having at the time a fraudulent. intent to deprive the owner of them. These facts being established, all other enquiries are irrelevant. If therefore, the plaintiff in error had been expressly employed by Boon to get the mo-' ney for him, and instead of honestly doing so, he had fraudulently received it, with intent to deprive 'Boon of it, he would have been guilty under the act. The question whether a party he guilty or innocent, depends upon the intent with which the goods may he received. The danger in which it is said this construction will place the innocent, cannot exist; for if the intent be “fraudulently to deprive the owner” of his goods, all pretence to in-nocency or favor is removed. Stolen goods may be received, and yet the party receiving be innocent, for he may have an honest intent. So a man may slay another and be innocent; having no wicked purpose. The intent must in both cases be left to the jury, to he judged of from the evidence. There is no error, therefore, in the charge of the court, and the judgment must he affirmed.

Judgment affirmed. 
      
       Cassels vs. The State, 4 Yerger’s Rep.
     