Allen v. State

91 Ala. 19 | Ala. | 1890

CLOPTON, J.

The charge, to the refusal of which the first exception is taken, asserts the naked proposition, that if the money, for the larceny of which defendant is indicted, was found* by his children, and delivered to him, he can not be guilty of larceny, whatever may have been his intent at the time of taking the money. Finding it, and its delivery to the defendant by the finder, did not deprive the money, as to the owner, oí the character or status of lost property; the ownership remained in him, drawing to it, constructively, the right of possession. When defendant took the money from his children, he kneiv it had been lost, and took it as such. It is manifest the children had no felonious intent, and properly delivered the money to their father for his disposition. By receiving it from his children, knowing it was lost, defendant assumed, in legal contemplation, by voluntary substitution, as to the money and the owner, the relation occupied by the finders, placing himself in their stead. Otherwise, a person knowingly receiving lost property from the finder, who had no intent to steal, with the felonious intent to appropriate it to his own use, escapes punishment. In such case, whether or not the person taking the money is guilty of larceny, must be determined on the same principles which govern in the case of the actual finder.

These principles have been so thoroughly and elaborately discussed in Griggs v. State, 58 Ala. 425, which is in accord with the great weight of authority, that it will suffice to state them substantially in the language of the opinion, without elucidating or fortifying them by other argument. The following propositions are clearly established: First-, lost goods are the subject of larceny, and the place where found is immaterial. The owner is not divested of the right of property by the loss at any place, and has, constructively, the right of possession. Second, in order to stamp the conduct of the finder with larcenous character, the intent to convert them absolutely to his own use must co-exist with the act of finding. If such intent does not exist at the time of the finding, a subsequent concealment, or fraudulent appropriation, does not constitute larceny. Third-, the existence of the criminal intent may be ascertained, like the intent with which any other act is (lone, by a careful examination of the facts and circumstances preceding, attending, and following the finding. In order to ascertain the original intent, inquiries may be made as to the manner in which the finder conducted himself with the goods, and his present means of knowing or ascertaining the owner. Fourth, though the talcing is not larceny, when there are no indicia indicating the owner, and the finder really believes he can not be found; yet, if at the time of the taking, he knew the owner, or had reasonable grounds for believing he could be discovered, it is his legal and moral duty to hold and restore the goods to the rightful owner; and if, under such circumstances, he absolutely appropriates them to his own use, excluding the dominion of the owner, it is larceny. Reasonable belief that the owner can be found, may result from previous knowledge, or from the attending facts and circumstances, or from facts he learns at the time of the finding, or from-any marks or indicia on the goods, furnishing immediate means of ascertaining the owner.

It follows from the foregoing principles, that to authorize the conviction of defendant, the evidence should show the existence of. the criminal intent at the time his children handed him the money. As the record does not show to the contrary, we must presume that the court instructed the jury in accordance with these principles.

The second exception relates to the refusal to charge to the effect, that if defendant took the money to the house of Kit Harper, a neighbor, for the purpose of finding out the owner, and afterwards converted it to his own use, no matter with what intent, he can not be convicted. Carrying the money to Harper’s house, and all then and there done.and said, may be properly considered in ascertaining the intent with which he took the money from the children. If at that time he had the criminal.intent, and afterwards converted it to his own use, in pursuance of such original intent, merely taking the money to Harper’s house in the meantime, for the ostensible purpose of finding out the owner, does not purge the taking of criminality. The charge was calculated to direct the minds of the jury to-other considerations than the original intent, and thereby to mislead them.

The third and last exception goes to the refusal of the court to instruct the jury, that defendant “ was not bound to find out the owner, even if by diligence he could do so, if there were no marks, signs, or circumstances, understood by him, on the money, to enable him to discover the owner.” The money was in a pocket-book, which contained other papers, and which was accidentally dropped from the pocket of an overcoat, while the owner, Anthony B. Green, Jr., was riding along the road, who, just before reaching home, met defendant’s children. In the pocket-book were two promissory notes on T. B. Scott. By the charge, the jury would have understood, that they could not find the existence of the criminal intent at the time of taking, unless there were marks or signs on the money, which enabled the defendant to find out the owner. It reslricts the immediate means of ascertaining the owner within too narrow limits. Conceding there were no signs or marks on the money, if there was any mark or writing on any of the papers in the pocket-book, which reasonably furnished the immediate means of discovering the owner, this is sufficient. From the fact that, in the interview at Harper’s house, defendant’s wife, who could read, called over all the names of the Greens, and that one of the notes on T. B. Scott was read and examined, the jury may have inferred that there was something on some of the papers which indicated that the owner was named Green.

We discover no error in the record.

Affirmed.