14 Johns. 294 | N.Y. Sup. Ct. | 1817
Lead Opinion
delivered the opinion of the court. The prisoner was convicted at the last court of oyer and terminer and gaol delivery, held.in and for the county of Otsego ; and a question of law having arisen on the trial, sentence was respited, and he has now' been brought up on Habeas Corpus, to receive the judgment of this court.
On the trial, it came out in proof, that the articles for the stealing of which the prisoner was indicted, were contained in a trunk, and that he found this trunk on the highway. The court below instructed the jury, that if the prisoner took the trunk with intention to steal it, they ought to find him guilty, and-that in determining that question they had a right to take into consideration the prisoner’s subsequent conduct, as well as all the circumstances of the case.
We assume it as an undisputed fact, that the prisoner found the trunk bona fide, and, consequently, that it had been lost by its proprietor; and we proceed on the ground, that if any subsequent embezzlement of the contents of the trunk would make the act a larceny of those articles, that then the conviction is correct. But the court are of the opinion, that the bona fide finder of a lost article, or of a lost trunk containing goods, cannot be guilty of larceny by any subsequent act of his, in concealing or appropriating to his own use the article, or the con?
It cannot be doubted, that an indictment for a larceny must charge that the goods were feloniously taken, as well as feloniously carried away; and hence it is an established position, that if the taking is not an act of trespass, there can be no fclo- „ ny in carrying away the goods. (1 Hawk. ch. 33. Kelyng, 24. Dalton, 3.)
There can be no trespass in taking a chattel found in the highway, and the finder has a right to beep the possession against every one but the true owner. How, then, can it be said, that a thing found bona fide, and of which the finder had a right to take possession, shall be deemed to be taken feloniously, in consequence of a subsequent conversion, by denying and secreting it, with an intention to appropriate it to the use of the finder ?
It was urged, on the part of the people, that the same test ought to be applied, in the case of the finding of a chattel, and its subsequent conversion to the use of the finder, to ascertain the felonious intention, as has been applied where goods, and particularly horses and carriages, have been feloniously obtained, under the pretence that the person applying for,and obtaining them, would use them for a certain specified purpose, and then
The court believe that it would be an innovation on the criminal law, to consider this as a case of larceny ; and they, therefore, direct the prisoner to be discharged.
Dissenting Opinion
dissented. The facts upon which the jury founded their verdict against the prisoner, are not before this court: nor was it necessary that they should be, for if the’ verdict was not warranted by the evidence, application should have been made to the court of Oyer and Terminer for a new trial. The broad question, therefore, submitted to this court, is, whether property lost in the highway can, under any circumstances, be the subject of a larceny. It was put to the jury to say, whether the prisoner formed the intention of stealing, when .he first found and took the trunk, and, by their verdict, they have found, that the felonious intent accompanied the first taking. The prisoner must, therefore, be deemed to have been properly •convicted, unless, by the law of the land, property lost cannot be the subject of larceny.
In most of the elementary writers on criminal law, we find this general proposition laid down, that if one lose his goods, and another find them, though he convert thorn, animo furandi, to his own use, yet it is no larceny. This, as a general rule, is undoubtedly true; but it necessarily implies, that the finder acts bonafde, with ah intention to take and keep the goods for the right owner when he shall be ascertained ; and when such is. the object and intention with which lost goods are taken up, no subsequent felonious design will convert such taking into a larceny. That the rule is so to be understood, is very evident from the reason that is assigned for it, to wit, that the first taking was lawful; but if the first taking was with the fraudulent intention of depriving the owner of his property,^ such taking cannot be said to be lawful. It is the intention with which the act is done that gives its character. For this reason, though, in general, he who has a possession of any thing on delivery by the
If the obtaining of goods by delivery from the actual possession of the owner, by fraud, and with intent to steal, be larceny, no good reason can be assigned why the taking of goods from the constructive possession of the owner, with the like intent, should not be deemed larceny. The owner by losing his goods is not devested of the propertyand his general property draws after it the possession. So that the goods, although found, are, in judgment of law, taken from the possession of the owner. There can be no doubt that trespass might be maintained for a fraudulent taking and conversion of goods found in the highway. No difficulty, therefore, arises from the rule laid down in the books, that every felony includes a trespass. Wherever actual possession is gained by fraudulent means, and with a fraudulent intent, the constructive possession, in judgment of law, still remains in the owner. As if A. steals goods from B. who had stolen them from C., A. may be charged with stealing them from C., the real owner, because the possession, in fact,
The place, therefore, where the goods are taken is immaterial. It is the fraudulent and felonious intent which constitutes the crime ; and it is worthy of observation, that where we find the rule first laid down by Lord Coke, (3 Inst. 107.) that he who finds goods lost, and converts them, animo furandi, is not guilty of larceny, it is accompanied with reference to treasure-trove, waifs, strays, and wrecks, which were considered, bona .vacantia, and, by the law of nature, belonged to the first occupant or finder, (1 Bl. Com. 299.) The rule, probably, grew out of the notion that such goods could not be the subject of a larceny. But there can be no ground for applying any of the rules of law applicable to such property to goods lost under the circumstances of this case, where not only the property, but the constructive possession of the owner still remained unaltered by the losing. It is very evident that Mr. East means to confine the defence to cases where no fraudulent design accompanied the first taking, for he says (2 East, C. L. 665.) the finder may give in evidence, that he endeavoured to discover the true owner, and kept the goods till it might reasonably be supposed that he could not be found, or that he made known his acquisition, so that he might make himself responsible for the value in case he should be called upon by the owner, for the purpose of rebutting the implication of a felonious taking and conversion. If he had meant to be understood, that under no circumstances could goods lost be the subject of a larceny, it would be useless, if not absurd, to say, evidence might be received to rebut a felonious taking; which, according to the argument on the part of the prisoner, did not, nor could not exist. Upon the whole, therefore, although upon the trial of the prisoner, I had some doubts upon this question; yet, from an attentive examination of the law, I am persuaded that the rule under which the prisoner claims to be discharged, has been ■misapplied to his case i and that the jury having found that the
Prisoner discharged.