§ 138. Decoys-Larceny. -Nor is it larceny where the prisoner is invited to take the property, by an agent of the owner, for the purpose of trapping him.1 § 139. Decoys-"Post Letter" -Consent. In R. v. Rathbone, the prisoner being employed as a letter carrier, and suspicion attaching to him, a marked sovereign was put into a letter to entrap him. The letter was not posted in the ordinary way, but was put among the letters to be distributed by him. It was held that although he took the sovereign he could not be convicted of stealing a "post letter." 3 1 Williams v. State, 55 Ga. 39 (1870). 2 C. & M. 222 (1841). See R. v. Shepherd, Dears. 606. If a Person Employed on a Building situated thirty feet from the highway throw down a piece of timber, having first cried out to stand clear, and the timber fall upon another and kill him, this is not manslaughter, but misadventure merely. Aliter, it seems, if the house had been directly upon a constant thoroughfare. In the sessions in the Old Bailey, holden the 13th of January, 1664, one John Hull was indicted for the murder of Henry Cambridge; and upon the evidence the case was, that there were several workmen about, building of a house by the horse-ferry, which house stood about thirty feet from any highway or common passage; and Hull being a master workman (about evening when the master workman had given over work, and when the laborers were putting up the tools) was sent by his master, to bring from the house a piece of timber which lay two stories high; and he went up for that piece of timber, and before he threw it down he cried out aloud, stand clear, and was heard by the laborers, and all of them went from danger, but only Cambridge, and the piece of timber fell upon him and killed him; and my Lord Chief Justice HYDE held this to be manslaughter, for he said he should have let it down by a rope or else at his peril, be sure nobody is there. But my brother WYLDE and myself held it to be misadventure, he doing nothing but what is usual with workmen to do; and before he did it, crying out aloud, stand clear, and so gave notice, if there were any near they might avoid it; and we put the case a man lopping a tree, and when the arms of the tree were ready to fall, calls out to them below, take heed, and then the arms of the tree fall and kill a man, this is misadventure, and we showed him 1 where the case is put and the book cited and held to be 1 Poulton de pace, p. 120. misadventure, and we said this case in question is much stronger than the case where one throws a stone or shoots an arrow over a wall or house, with which one is slain; this in Kelloway,1 is said to be misadventure. But we did all hold that there was a great difference twixt the case in question, the house from which the timber was thrown standing thirty feet from the highway or common footpath, and the doing the same act in the streets of London; for we all agree that in London that if one be a cleansing of a gutter, call out to stand aside, and then throw down rubbish or a piece of timber, by which a man is killed, this is manslaughter; being in London there is a continual concourse of people passing up and down the streets, and a new passenger who did not hear him call out, and therefore the casting down any such thing from a house into the streets, is like the case where a man shoots an arrow or gun into a market-place full of people, if any one be killed it is manslaugther; because in common presumption, his intention was to do mischief, when he casts or shoots anything which may kill among a multitude of people; but in case that a house standing in a country town where there is no such frequency of passengers, if a man call out there to stand aside, and take heed and then cast down the filth of a gutter, etc., my brother WYLDE and I held that a far differing case from doing the same thing in London. And because my Lord HYDE differed in the principal case, it was found specially; but I take the law to be clear that it is but misadventure. Instigating Willful Burning-Father and Son-Accident.-P. was indicted for instigating his minor children to burn a fence, the property of K. The proof was that P.'s sons, by his direction, brought fire into his own field, whence, by means of the grass, it communicated to, and burned, the fence. But there was no proof of any instigation to burn the fence, or of any design, either on his part or that of his sons, that it should be burned; whereas, on the contrary, the testimony concurred in proving that they labored to stop the fire, and that P. specially exerted himself to save the fence. Held, that P. was not guilty. APPEAL from the County Court of Hunt. Tried below before the Hon. H. B. SIMONDS, County Judge. 1 pp. 108, 136. It was proved that, in a civil suit originating from the same fire, the appellant testified that he told his boys to bring the fire to the field, but for what purpose is not explained. The date of the affair, however, was December 1, 1876, when a fire may have been genial company. The head-note embodies the substance of the evidence. The defendant introduced no witnesses. T. D. Montrose, for the appellant. George McCormick, Assistant Attorney-General, for the State, submitted the case on record. WHITE, J. The appellant was indicted for instigating his two sons, who were minors, to burn a lot of fence-rails, the property of one J. T. Kennedy. The indictment charged that the burning by the minors was done willfully. The two statutes upon which the indictment was based read as follows: "When it shall appear that a minor was aided or instigated in the commission of an offense by a relative in the ascending line, such relative shall receive double the punishment imposed by law in ordinary cases for the same offense." 1 "If any person shall willfully burn any personal property belonging to another, he shall be fined not exceeding five times the value of the property destroyed." 2 none. We are of the opinion that the evidence disclosed by the record wholly fails to substantiate the charge in the indictment, and the court below consequently erred in overruling defendant's motion for a new trial. The State introduced three witnesses on the trial; the defendant The evidence shows substantially that the two minor sons of defendant carried fire down into the field, where defendant was at work plowing. The grass caught from the fire, and the boys, after fighting it, seemed to have put it out. Subsequently it broke out again, and spread towards, and finally caught, Kennedy's fence. The testimony shows that the boys and the defendant, and a female member of his family, and other parties, were fighting the fire and doing apparently all they could to extinguish it and save Kennedy's fence. There is little or no difference in the statements of witnesses. S. O. Richardson, one of the State's witnesses, says: "He went down to where the fire was, which had already burned to the fence, and said fence was then burning, which defendant was then pulling down and scattering on the ground behind the fence; that he told defendant to come to another place, where he could aid in checking the fire and stop it from burning the farms ahead, that he couldn't do any good there; but the defendant refused to leave said fence or discontinue his efforts to save it, and continued to pull out the burning rails and scatter them upon the ground; that defendant worked faithfully and earnestly to 1 Pasc. Dig., art. 1641. 2 Pasc. Dig., art. 2336. save said fence. The fence that defendant was so faithfully and earnestly trying to save was the fence of J. T. Kennedy, and the same he is charged with having willfully burned.” The impression made upon our minds by the testimony in the record is that the damage done to the fence by the fire was caused by accident, or by negligence upon the part of the boys, and that the burning of the fence by the fire was not a willful act of theirs. There is no evidence that the defendant instigated his sons to the willful burning of Kennedy's fence. That was the charge against him in the indictment, and, unless it was proven, he should not have been convicted. For the reason that this court is of opinion that the verdict and judgment are contrary to and against the evidence, and that, therefore, the court erred in refusing the new trial, the judgment of the lower court is reversed and the cause remanded. Reversed and remanded. ACCIDENT-NEGLIGENT USE OF FIRE-ARMS. ROBERTSON v. STATE. [2 Lea (Tenn.), 239.] In the Supreme Court of Tennessee. If, without Intent to do Harm, one points a pistol at another in sport, neither thinking the pistol to be loaded, and the pistol goes off, producing death, the person using the weapon is not necessarily guilty of involuntary manslaughter under the Tennessee Code. The negligent use of the pistol supposed to be unloaded is not of necessity a crime, as there is no evidence of criminal intent. Richardson & Watkins, for Robertson. COOPER, J. The plaintiff in error was indicted for the murder of Anderson Fowlkes on the 14th of July, 1877. He has been thrice tried and convicted, under this indictment, of voluntary manslaughter, being acquitted on the first trial of the higher grades of homicide. The first two verdicts were set aside by the presiding judge, on the motion of the defendant below, and a new trial awarded. Judgment having been rendered on the last verdict, the prisoner appealed in error. The defendant, the deceased, Andrew Harris and his wife Betsey, and George Harris, all persons of color, were in the employ of one Bright Harris, in threshing wheat. On the evening of the 14th of July, they |