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Tennessee Supreme Court • 1874

Bell v. State

63 Tenn. 426

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Takeaway

In short, this case preserves the common-law rule that stealing crops or vegetables by severing and immediately removing them is trespass, not larceny; larceny requires a meaningful separation between severance and asportation.

Background

Bell was convicted in the Criminal Court of Montgomery County of petit larceny for stealing cabbage and sweet potatoes belonging to G. B. White. The trial judge sentenced him to one year in the penitentiary.

The trial judge initially gave the jury an accurate general definition of larceny and explained the difference between grand and petit larceny. Later, however, the judge instructed that a defendant commits larceny if, intending to steal, he digs sweet potatoes or cuts cabbage from another's garden, then picks up the severed vegetables and carries them away. Bell challenged that instruction as an incorrect statement of the offense.

Issues

Issue #1

Whether a person commits larceny by severing vegetables growing in another's soil and immediately carrying them away as part of the same uninterrupted transaction.

Holding

No. Under the common-law rule still in force in Tennessee, immediate severance and removal in one continuous act is a trespass, not larceny.

Reasoning

At common law, crops and vegetables growing from the land are part of the realty rather than personal property. Larceny requires a felonious taking and carrying away of personal property, so the item must first have become a personal chattel.

A thief may create personal property by severing vegetables, wood, fruit, or similar things from the land. But when the thief's severance and removal are one continuous, uninterrupted act, the law treats the entire conduct as a trespass against the land rather than a larceny of personal property.

The trial court's examples described precisely that continuous conduct. Digging potatoes, leaving them on the surface only as a necessary part of digging, immediately placing them in a bag, and carrying them away is one transaction. The same is true when someone cuts cabbages and immediately removes them. The fact that physical severance necessarily occurs before removal does not itself create the required interval.

Larceny arises only when severance and later taking are distinct acts. If the owner or another person severs the item, or if the thief severs it, allows an interval to pass, and later returns to take it away, the severed item has become personalty in the constructive possession of the landowner. Its later removal may then constitute larceny.

The Court acknowledged that the common-law distinction may not reflect a difference in moral blameworthiness between immediate removal and removal after an interval. But the Tennessee Legislature had not changed the rule, and the Court was therefore bound to apply it. Because the jury was instructed that continuous severance and removal constituted larceny, the conviction could not stand.