Lewis Fields vs. The State. be attached to what is here said, or not, we think the jury must have so understood it. It is true, the fact that a witness is related to a party, is a circumstance that may be considered of by the jury, in determining the credit to be attached to his testimony; but it was erroneous to instruct the jury that the law forbids that full credence be given the testimony of such witnesses, unless it was corroborated. Let the judgment be reversed, and the cause remanded. LEWIS FIELDS vs. THE STATE. 1. I ARCENY. The taking must be without color of right. To deprive the owner permanently of his property. Larceny is the felonious taking and carrying away of the personal goods of another. The taking must be without the least color of right or excuse for the act, and with the intent to deprive the owner, not temporarily, but permanently of his property. 2. SAME. Case in judgment. The prisoner was convicted for taking certain tools from the shop of the prosecutor, without his knowledge or consent, and pledging them to a tippler for whisky. He set up no color of claim to the goods, or excuse for the act. Held that the facts in this case constitute a larceny. FROM KNOX. The prisoner was convicted at the February Term, 1868, of larceny, and sentenced to imprisonment in the Lewis Fields vs. The State. penitentiary for three years; from which judgment he has appealed to this Court. Judge ELIJAH T. Hall, presiding. JAMES R. COCKE, for defendant in error. THOMAS H. COLDWELL, Attorney-general, for the State. ANDREW MCCLAIN, J., delivered the opinion of the Court. The plaintiff in error was indicted in the Circuit Court of Knox County, for larceny, plead not guilty, was tried and found guilty, and has appealed to this Court. He is charged with having stolen from the prosecutor, three augur bits, one hollow augur and one bevel square. Some of these articles were missed at the shop of the prosecutor during the October Term, of the Circuit Court of Knox County, in the year 1867, and they were all missed before the month of December, 1867. In the month of December, 1867, they were found in the possession of the witness, Keys, who swears he received them from the plaintiff in error, and that they to him for whisky, were pledged by plaintiff in error he, the witness, being a retailer of liquor. Keys testifies that they were brought to his house at different times, by plaintiff in error, but he is not able to recollect the precise time when. The tools last brought by plaintiff in error to him, he swears were brough Lewis Fields vs. The State. one or two weeks before the prosecutor came and claimed them in December, 1857. The plaintiff in error had worked in the employ of the prosecutor, but had ceased to work there, before the tools were taken. While working there, however, plain tiff in error, by permission, would occasionally take a tool home with him at night, for some purpose, and return it next morning. The plaintiff in error also, as often as twice, had left other tools with witness, Keys, in the same way the tools mentioned in the indictment were left, and had afterwards redeemed them. It does not appear whether these were the tools of prosecutor or not, or what was done with them when redeemed. In reference to the tools now in controversy, the contract between Keys and plaintiff in error, was, that whenever he would pay for the whisky, they should be restored to him. The charge of the Court we think is correct. Larceny is the felonious taking and carrying away the personal goods of another. The taking must be lucri causa, and as the Court correctly stated to the without the least color jury, the taking must be done of right or excuse for the act, and with the intent to deprive the owner, not temporarily, but permanently, of of his property. Applying this definition of larceny to the facts of the present case, does the guilt of the plaintiff in error appear? Possession of the fruits of crime recently after its commission, is prima facie evidence of guilty possession, and if unexplained, either by direct evidence, or by the attending circumstances, or Lewls Fields vs. The State. by the character and habits of life of the possessor, or otherwise, it is taken as conclusive: Hughes vs. The State, 8 Hum., 75. Do the attending circumstanses in the present case, explain the possession of the plaintiff in error? It is sometimes difficult to distinguish between larceny and mere trespass. Greenleaf in 3d vol. of his work on Evidence, at sec. 157, in discussing this distinction, says: "If the taking, though wrongful, be not fraudulent, it is not larceny, but is only a trespass, and ought to be so regarded by the jury, who alone, are to find the intent, upon the consideration of all the circumstances. Thus, if it should appear that the prisoner took the prosecutor's goods openly in his presence, or the presence of other persons, and not by robbery; or, having them in possession, avowed the fact before he was questioned concerning them; or, if he seized them upon a real claim of title, or took his tools to use, or his horse to ride, and afterwards returned them to the same place, and promptly informed the owner of the fact; or, having urgent and extreme necessity for the goods, he took them against the owner's will, at the same time tendering to him in good faith their full value in money; or took them by mistake arising from his own negligence; these circumstances would be pregnant evidence to the jury, that the taking was without a felonious intent, and therefore but a mere trespass." The present case differs widely from any of the instances mentioned in the quotation just made. The prosecutor swears that these tools were taken after the plaintiff in error had ceased to work in his The State vs. E. and W. Elmore. employment, and that they were taken without his knowledge or consent-and so far as we can see from the evidence in this cause-without the least color of right or excuse for the act. He says nothing to the prosecutor about it, but puts them in pawn for whisky. We think these facts and attending circumstances, furnish no ground for relief to the plaintiff in error, from the imputation of guilty possession. Let the judgment be affirmed. THE STATE vs. E. AND W. ELMORE. 1. APPEAL. From an order dismissing a writ of habeas corpus. An appeal does not lie to this Court from an order dismissing a writ of habeas corpus, nor will an appeal lie from a judgment on the writ, whether pronounced by a judge out of term time, or by a court. 2. SAME. Jurisdiction of appellate court to issue mandamus. This Court has jurisdiction to issue a mandamus to judges of inferior courts in all matters where it is shown to be an exercise of appellate jurisdiction, or to enable it to exercise appellate jurisdiction not original. 3. SAME. Mandamus. Case in judgment. The defendants in their petition for writs of habeas corpus were brought before the judge, pending a discussion of a question of practice between the attorneys; the prisoners were remanded to jail, where they have remained. They now file their petition in this Court for a mandamus, asking that the Circuit Judge be |