vern keeper, which is required to be taken by the second section of the act, be violated, the party so guilty, shall on couviction, be punished as in other cases of perjury, or if he shall sell spirits, in violation of this act, or that of 1831 and 1832, on this subject, he shall be liable in the same manner as if he had no license.

For the prosecution of these offences and for collecting the bond, the twenty-five dollar tax fee is given. So far as the violation of the act of 1832 is provided for, that act is included in the expression in the third section "enforcement of the criminal laws." But the provision in reference to that act, is restricted expressly to that part of it, which is the subject matter upon which the legislature were then speaking. They are speaking of offences by licensed retailers only, for they say, that upon a violation of his oath, and the condition of his bond, in addition to the other penalties, he shall be liable as though he had no license.

We are of opinion therefore, that the tax fee of twentyfive dollars to the attorney general, cannot properly be taxed against a party, who is convicted only of selling spirituous liquors without license. the execution quashed.

Let the judgment be reversed and

Judgment reversed,

NASHVILLE.

December, 1836.

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 convert 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

December, 1836.

Felter

V

The State.

NASHVILLE, he had been 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 Six miles beyond Murfreesborough he swapped the horse, but the other party becoming suspicious, that contract was rescinded.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 of 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 the 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. 68: Martin and Yerger's R. 126. 5 Yer. R. 154, and the case of Hite vs. the State, 9 Yer. R. 1968

The very essence of the crime of larceny is, that the taking of the goods must be without the consent of the owner, 'invito domino.' This material ingredient in the offence of larceny has undergone great consideration both in England and this country. 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 of 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 modern 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

Sir William Russell, after citing a great

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

NASHVILLE. December, 1836.

Felter

V

The State'

Recember, 1836

Felter
V

The State

NASHVILLE,livery and consent of the owner, larceny cannot be committed. 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, in 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 house, 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, and 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. Long, 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 such 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.” Hay. R. 157: 4 Blackstone's Com. 130-1: 1 Hale's P. C. 504, 607: Foster, 123-4: Porter vs. the State, Mar. and Yer. R. 226. Wright vs. the State, 5 Yer. R. 158: Hite vs. the State, 9 Yer. R. See also North Carolina Term R. 31.

1

The doctrine contained in the note to the case of the State vs. Long, 1 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 State,

first, in the year 1805, 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 Hite 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 vs. 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. Adams, Ryan and Russell 225: 2 Russell 120.1

2. Where the possession is obtained originally bona 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. Micklow, Ryan and Moody, 160: 2 Hale P. Cr. 504: 1 Hawk. c. 33, § 2: Porter vs. The State, 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

NASHVILAS,

December, 1836.

Felter

V

The State.