8L 456 117 515 McAdams . The State. W. C. MCADAMS v. THE STATE. 1. CRIMINAL LAW. Charge of court. Upon the trial of an indictment for stealing a mule, there is no error of which defendant can complain in the following charge: "If you find from the proof that the prosecutor, with others, agreed or arranged with the principal witness for the State that he and defendant should steal his, the prosecutor's mule, then the defendant would not be guilty; but on the other hand, if you find from the proof that the defendant formed a design to steal mules, and communicated this design to the principal witness, or if the defendant and the principal witness formed the design to steal mules, and the prosecutor, with others, being informed of the fact, arranged with the principal witness to so conduct matters as that the defendant might be detected and caught, then the defendant would be guilty." 2. SAME. Evidence. There is no error in sustaining an objection to a question of the defendant, the expected response to which would not be relevant to the issues on trial, nor of any service to the defendant unless coupled with other evidence not offered. 3. SAME. Same. New trial. When a prisoner's guilt is clearly established by direct testimony, it is no ground for a new trial that evidence was introduced not strictly admissible, if the court can see that the defendant was not prejudiced thereby. FROM SUMNER. Appeal in error from the Circuit Court of Sumner county. J. W. JUDD, Sp. J. T. C. MULLIGAN and W. C. DISMUKES for McAdams. ATTORNEY-GENERAL LEA for the State. McAdams r. The State. COOPER, J., delivered the opinion of the court. Conviction for the larceny of a mule, from which the prisoner has appealed in error. The mule was taken on the night of July 20, 1880. A few weeks previously another mule had been stolen in the same neighborhood from John Harris. During the June term of the circuit court of the county, Tompkins, one of the witnesses for the State in this casee, was approached by the plaintiff in error, McAdams, and taken out on the balcony of the court-house, where they were alone, and asked if he was suspected of stealing replied in the negative, and knew that he (Tompkins) Harris' mule. Tompkins remarked that those who suspected should come and see him on the subject. Defendant then told Tompkins to send no such word, that it would ruin the whole thing; that there was a good deal of fine stock in his neighborhood, and if properly handled money could be made out of it. Defendant further told Tompkins to say nothing about' what had passed between them, and that they had better not be seen together as they might be suspected; that he would see him again or write to him. Tompkins communicated his conversation to Hill, a neighbor of defendant, who advised him to be cautious of defendant, who was a bad fellow and might get him into trouble. Tompkins did not see defendant for several days, nor receive any letter or message from him. In the meantime, Hill, thinking that defendant's proposition to Tompkins meant larceny, went to see Tompkins, who lived seven or eight miles from him, McAdams v. The State. and arranged with him to go to see the defendant on the succeeding Sunday, and ascertain definitely what he meant. Tompkins did accordingly visit defendant, stopping at Hill's on the way. At the interview ther had, defendant disclosed to Tompkins that his plan was to steal some of the stock of his neighbors, to be carried south by Tompkins and sold, the proceeds to be divided between them. Tompkins ostensibly entered into the plan, and the next Tuesday night was fixed upon as the time to move the stock. The result of the interview was communicated to Hill, who informed some of the neighbors, and it was arranged between them to lie in wait for the defendant. On Tuesday night, Tompkins went to the defendant's house, and they started together on one of the defendant's horses to steal the stock of some of the neighbors. Two witnesses prove that they saw them that night riding on the horse, the defendant in front, coming from the direction of the defendant's house, and going in the direction of the place of a neighbor named Woodson. They did go first to the stable of Woodson, but he was on his guard, having been notified of the attempt, and scared them off. They then started to another neighbor's, passing the prosecutor's lot on the way. They stopped and looked at prosecutor's stable, and, while there, one of the prosecutor's mules came up to the fence where their horse was hitched, and the defendant caught the mule, put a halter on it which he had brought with him, and led it off. A party of the neighbors, including the prosecutor, had concealed themselves near the defendant's gate. When McAdams v. The State. defendant and Tompkins reached the gate, the defendant, who was leading the mule, turned it over to Tompkins, telling him to sell it, and if he could not. get $100 to take $75, and return in about three weeks, when he, defendant, would have several other and better mules for him. After Tompkins had gone some distance, the concealed party rushed out and caught the defendant. One of the party asked defendant. whose mule that was, and he replied that he had no mule. He was also asked who the man was that was with him, and he said he did not know him. One of the witnesses testifies that, on the next day, defendant said to him that if they had not caught him when they did, he does not know how many of the neighbor's mules he would have stolen. All of the neighbors present were examined by the State, and each, as well as Tompkins, Hill and Woodson, testified that no inducement was held out by them, or any of them, to the defendant to commit the larceny. It seems also, from Tompkins' testimony, that he and defendant had not contemplated the taking of any of the prosecutor's stock. And the prosecutor himself says that if he had known or supposed that his stock was to be raided, he would have taken steps to prevent it. Upon the foregoing facts it is not pretended that the jury were not fully warranted in finding the defendant guilty of the offense charged. The objection made is to the judge's instruction to the jury. His Honor, after stating the opposing views of the State and the defendant, said: "If one person agree with another that the latter with a third person shall steal McAdams e. The State. his, the former's property, this would not be larceny, for larceny cannot be predicated of a taking when a person consents to, or agrees that his property shall be taken. But if, on the other hand, the original design or intent to steal is formed, and the prosecutor should find this out, and agree with another to so arrange matters as that the person who had formed such design to steal should be detected, then if the design to steal, thus formed, be carried out, it would be larceny, although it might be the prosecutor's property that was taken. If, therefore, you find from the proof that the prosecutor, with others, agreed or arranged with Tompkins that he and defendant should steal his, the prosecutor's mule, among the horses and mules of others, then the defendant would not be guilty and you should acquit him. But, on the other hand, if you find from the proof that the defendant formed a design to steal mules, or horses, and communicated this design to Tompkins, or if the defendant and Tompkins formed the design and intent to steal horses and mules, and the prosecutor, among others or with others, being informed of this, arranged with the said Tompkins to so conduct matters as that the defendant might be detected and caught, then the defendant would be guilty, and you should convict him." If, To constitute larceny, the possession of the property must be taken against the will of the owner. therefore, the owner direct his servant, or other employee, to deliver property to a supposed thief who had not formed the design to steal it, and the latter take it, there would be no larceny, even it seems if |