17 Wend. 460 | N.Y. Sup. Ct. | 1837
By the Court,
Had the objection to the competency of Decker been made before he was sworn, he would have been rejected (2 R. S. 408, § 87). But it was not taken until after he had been sworn and given his evidence. If it was not then too late to entertain the question, it was addressed to the discretion of the court, and upon the facts disclosed in the bill of exceptions, it is impossible to say that there was error in refusing to strike out the testimony.
Whether the defendant took the whip animo furandi, or whether he took it at all, were questions of .fact for the jury, and their verdict can not [462] be reviewed on a bill of exceptions. Was the case properly submitted to the jury by the court? This is the only question for our consideration. It is insisted that the whip was in the possession of the defendant by finding, and could not be the subject of larceny by him. In The People v. Anderson (14 Johns. R. 294), the defendant was the bona fide finder of a trunk which had been lost from a stage coach in the highway; and it was held that no subsequent act, in concealing or appropriating the trunk to his ,own use, would make it a case of larceny. The decision proceeded on the ground that the property was lost by the owner/ so that it no longer remained, either actually or constructively in his possession, and that it after-wards came lawfully to the hands of the defendant by finding. But in this case the whip was not lost. It remained where the owner had placed it, until it was taken up and concealed by the defendant. When Northrop left the store his mind was upon another matter, and the whip was forgotten for the moment; but he knew whesre he had placed it. and it was not lost to him
The fact that Northrop went out of the store and was absent some fifteen minutes before he returned to take the property, did not change the possession. In judgment of law, the gossession still remained in him. There was no error in the charge to the jury, and the judgment must be affirmed.
Judgment affirmed