87 Va. 554 | Va. | 1891
delivered the opinion of the court.
The evidence in the record, even that, alone, which was adduced by the prosecution, and excluding the conflicting testimony for the defence, is plainly insufficient to warrant- the verdict of the jury and the judgment of the court. The Commonwealth’s chief witness, R C. Tinsley, proves that, on a Saturday evening, early in August, 1890, he lost the pocketbook and contents described in the indictment, and alleged to have been stolen, out of his hip-pocket, on the public county road, on his way from his store to his home, ten miles distant, both being in Gloucester county.
Peter Perrin, the prisoner, a colored man, with a family, resident in Gloucester county, in the neighborhood of P. C. Tinsley, who could neither read nor write, in passing along the public road, on a Sunday morning, early in August (the day of the month not stated, but, presumably, the next day after the Saturday evening when Mr. Tinsley says he lost the pocketbook on the public road, going from his store to his home), left his house to go down to a neighbor, Moses Gayle,
R. H. Forrest, a witness for the Commonwealth, testified: “I keep a work-shop in Mathews county. Sometime last August, Peter Perrin brought a buggy to my shop, which I repaired for him. A week or two afterwards, he came after it. My bill amounted to $5.00. He took out two dollars and offered me, and said that was all the money he had. I saw a paper in his purse, and asked him if that was not a check? He said he was sorry I had seen it; that he had not intended for me to see it. I asked him why ? He said because he did not want to break it; that if he broke it, he would spend it. He objected to my having the check. I told him, as he had the check and could pay me, he could .not get the buggy without paying me what he owed on it. After some time, he consented for me to have it. He told me, that he had been working for R. A. Roane & Brother in the highlands, and that, not having the money to settle with him, they had given him the check in payment.” “ He handed me the check, and I saw it was for $10.79. Mr. Tinsley’s name was not on the check, and I did not know that Mr. Tinsley had any connection with it. I told him to endorse it, and I would pay him the difference between it and my bill. He said he could not write. We went over to the blacksmith shop of Mr. Atherton, my blacksmith, to endorse it. Mr. Atherton did write his (Peter Perrin’s) name on the back of the check. I paid him the difference in cash, $5.79.”
The evidence of the Commonwealth not only fails to prove the felony charged in the indictment against the prisoner, but it proves the prosecution out of the jurisdiction of the county court of Gloucester county, because, even if the hesitating and unwilling yielding of Peter Perrin to the persuasion and demand of the witness, Forrest, to convert and pass to him the check as the only condition upon which he would let him have his buggy, weeks after he had found it, can be held to be a conversion animo furandi, it was not only not coincident with the finding, but it was in the county of Mathews; and, being only for the value of $10.79, it would prove only the offence of petit larceny at most.
“ The mere possession of goods which have been actually lost does not furnish any conclusive or even prima facie proof of guilt; of itself it does not raise the suspicion of guilt.”' “To constitute larceny in the finder of goods actually lost, it is not enough that the party has general means, by thg use-of proper diligence, of discovering the true owner. He must know the owner at the time of the finding, or the goods must have some mark about them understood by him, or presumably known by him, by which the owner can be ascertained;. and he must appropriate them, at the time of finding, with-intent to take entire dominion over them.” Hunt v. Commonwealth, Gratt., 757; Tanner’s Case, 14 Gratt., 635; Bishop’s. Crim. Law, Vol. II.
The verdict of the jury is contrary to the law and the evi
Richardson, J., dissented.
Judgment reversed.