CASES

IN THE

SUPREME COURT

OF

TENNESSEE.

DEFRESE, appellant, V. STATE.

(8 Heisk. 53.)

Larceny - obtaining property by a trick.

On an indictment for larceny it appeared that the prisoner and S., who were confederates, met the prosecutor; S. dropped a piece of paper, prisoner picked it up while S. had stepped aside and took from it a five cent coin; S., on returning, received the paper from prisoner, saying that "he would not take ten dollars" for it, and proceeded to bet that there was a five cent coin in it; prosecutor bet his watch, and the stakes were placed in prisoner's hands, whereupon S. tore open the paper, exhibited a five cent coin, which had been concealed therein, snatched the watch and walked off. Held, larceny.

INDICTMENT. The opinion states the case.

J. B. Herskell, attorney-general, for State.

E. C. Camp (Wm. H. Maxwell with him), for prisoner.

SNEED, J. The prisoner and one J. H. Smith were indicted in the circuit court of Knox county for the crime of robbery. They were both convicted of grand larceny, and adjudged to confinement in the penitentiary for five years. The prisoner appealed in error.

Defrese v. State.

On the 8th of January, 1869, the prosecutor, James P. Johnson, a
citizen of Union county, was in the city of Knoxville. About noon
of that day, he started out of the city in his wagon, and had reached
a bridge near Ingles' mill, when the defendant Smith came up to
the wagon and asked permission to ride, which was given, and, in a
few moments, the prisoner, Defrese, came up and also wanted to
ride. The prosecutor observed that he would have to stop on top
of the hill to wait for his brother, but gave his permission also to
the prisoner to get in the wagon, which he did. Both of the defend-
ants were strangers to the prosecutor, and he states in his testimony
that, "from their looks," he was afraid of them. He, however,
drove on, with one sitting on either side of him, until they reached
the railroad, when the defendant Smith asked him if he had a
pistol, to which he replied in the negative. At this moment, Smith
got out of the wagon and appeared to be taking something out of
his pocket. He walked in the direction of some houses near by
and disappeared behind them. The prisoner remarked that Smith
had dropped something. The wagon was stopped, and the prisoner
picked up from the ground a paper folded in the shape of "a thumb
paper," and remounting into the wagon, he opened the paper and
took from it a five cent coin, which he put into his mouth, and then
refolded the paper as before. About this time the party had reached
the top of the hill where the wagon was halted. Here Smith came
up, and the prisoner observed to him that he had
at the same time handing him the folded paper.
Smith replied, "Oh, yes, I would not take ten
paper," and proposed at once to bet ten dollars that there was a five
cent piece in the paper. The prosecutor replied that he did not
wish to bet, and that he had no money. He was then asked by
Smith to show his watch. The prisoner and Smith both examined
the watch, then handed it back, and the prosecutor replaced it in his
pocket, observing that it was worth forty dollars. The defendant
Smith proposed to bet twenty-five dollars against the watch; but
the prosecutor " had fears of them," as he says, and was not willing
to bet. An offer was then made by Smith to bet forty dollars
against the watch that there was a five cent coin in the folded paper.
The prisoner, Defrese, at this time, says the prosecutor, kept
winking his eye at me." At this time Smith and the prisoner had
alighted from the wagon and were standing by it. The prosecutor
was sitting in the wagon. He states that he was afraid of the men,

lost something, The defendant dollars for that

"