22 Conn. 153 | Conn. | 1852
It must be assumed, on this -motion, that the goods, which the defendant was charged with having stolen, were, by the owner, lost, in the ordinary sense of that term, that is, casually, and not in a manner to indicate, that he intended to abandon or part with his property in them; and the first question made by the defendant, and which was involved in the charge below, is, whether such goods can, under any circumstances, be the subject of larceny. We are of opinion, that both on principle, and on a just consideration of the authorities, there is no difference, between lost goods and those in any other situation : and justice and public policy require, that both should be equally protected, by the criminal and the civil law.
' T?he most approved definition of larceny is, the wrongful or fraudulent taking and carrying away, by any person, the mere personal goods of another, from any place, with the felonious intent to convert them to his (the taker’s) own use, and make them his, property, without the consent of the owner. 2 East C. L., 553. Each branch of this definition is strictly, and according to the meaning which has been uniformly attached to it, by judicial construction, applicable, as well to goods thus lost, as to any other. The owner, by losing them, is not divested of his property in them, nor is his title to them in the least degree impaired; it remains in him absolutely and to all intents, as before. There is no difficulty in describing the ownership of it, in the indictment, according to the established rules of framing that instrument. The name of the owner must be stated, if it is known, and if not, it may be alleged to be the property of some person unknown. Nor is there any difficulty, arising out of the established principle, that, to constitute larceny, the taking must be a trespass. There can be no doubt, that trespass may be maintained for a fraudulent taking and conversion of goods found. As remarked by Parke, B., in delivering the judgment of the court in Merry v. Green, (7 M. & W., 623,) “ If the finder, from the circumstances of
We do not deem it necessary to examine minutely the authorities, on the question we are now considering. They certainly furnish a strong color for the opinion, which perhaps is generally entertained, that, anciently, goods casually lost, were not considered to be the subject of larceny, under any circumstances. We are, however, by no means satisfied that a critical and just examination of the old authorities will justify so broad a conclusion. The peculiar and somewhat loose forms of expression which they use, are certainly not absolutely inconsistent with the general current of modern authorities, in which it is stated, that those of an ancient date must not be understood in an unlimited sense; and Mr. East, who is one of the ablest writers on criminal law, appears to be of this opinion, (2 East C. L., 665;) although a previous expression of his seems to countenance an universal application of the principle, as laid down in the ancient books. But, whatever may have been the principle adopted anciently, the modem authorities, so far as we have
In prosecutions for the stealing of lost 'goods, the question, whether they were originally taken by the accused feloniously, animo furandi, is always a question of fact. and ^usually the principal one, for the jury to determine. For the purpose of showing such intention, inquiries as to his conduct, and all the circumstances preceding, accompanying, or following such taking, so far as they are relevant, are, as in all other cases of a similar accusation, admissible ; and where the goods were obtained by finding, it is, from the nature of the case, very important to ascertain, whether the accused knew, or had the means of knowing, the owner, or endeavored to discover him, or made known or concealed his acquisition ; and generally, how he conducted with the goods, in order to determine whether he intended originally to convert them to his own úse, or to restore them to the owner. No arbitrary or artificial importance or effect is attached to these circumstances, when they are disclosed by the evidence; they are only evidential of the intention of the accused, and, as such, to be weighed by the jury. In many of the reported trials for larceny, where it appears, that the accused obtained possession of the goods by finding, the form in which the court instructed the jury was, that if the accused, knowing or having the means of knowing the owner, concealed them or converted them to his own use, he is guilty of the. crime. It is, however, obviously not true, nor was such charge intended to be understood as laying down the legal proposition, that these circumstances con
The plaintiff in error excepts to the charge of the county court, in this case, because it withdrew from the jury the question on which his guilt depended, namely, whether the goods were originally taken by him, with a felonious intention, and made it depend on an intention, which might have been formed subsequently. We think that, in this respect, the charge was erroneous. There is no doubt that, to constitute larceny in this case, an intention to steal must have existed, at the time of the original taking. If there was no such intention, when the first taking took place, but it was formed afterward, it would not be larceny; and the jury should have been so informed. But, consistently with the charge given, the accused might have been found guilty,
The judgment complained of should therefore be reversed.
In this opinion the other Judges concurred.
Judgment reversed.