49 Iowa 73 | Iowa | 1878
The defendant asked the court to give an instruction in these words: “If you find from the evidence that said goods were lost; that the same were found by the defendant; that at the time he found the same he did not know who owned them; that there were no marks upon or about the goods showing to whom they belonged, so that defendant could identify the owner at once — even though the defendant could afterwards have discovered the owner by honest diligence— then you must acquit the defendant.” The court refused to give this instruction, and instructed the jury as follows: “Lost goods may be the subject of larceny, and should receive the same protection from the civil and criminal law as goods in any other situation. Where the finder knows or has the immediate means of knowing who was the owner, and, instead of returning the goods, converts them to his own use, such conversion will constitute larceny. Reasonable diligence in discovering the owner should be shown by the party finding. The intention of a party committing a larceny at first may not be felonious, but if the property is wrongfully used or converted it is larceny.” In giving these instructions and in refusing to instruct as asked, we think that the court erred. The statute upon the subject is in these words: “If any person come by finding to the possession of any personal property of which he knows the owner, and unlawfully appropriates the same or any part thereof to his own use, he is guilty of larceny. ” Section 3907 of the Code. The crime, if committed, must consist in the original taking. It cannot consist in a subsequent lack of diligence in attempting to find the owner, nor in a subsequent conversion. The statute does indeed provide a penalty for converting lost goods. It provides a penalty of twenty dollars. In addition,
In People v. Cogdell, 1 Hill, 94, the defendant was indicted for larceny of a lost pocket-book and money contained therein. He made no effort to find the owner, and converted the property to his own use. The court held that it was a mere case of trover, and not larceny. The same doctrine is held in People v. Anderson, 14 Johnson, 294; State v. Conway, 18 Mo., 321; Wright v. State, 5 Yerg., 154. The rule that the use of property by the finder, without reasonable diligence upon his part to find the owner, would constitute larceny, would often be oppressive. Scarcely any effort short of a successful one might be deemed by juries sufficient. In the meantime, the finder must care for the property, and if, through his negligence, it is lost, he becomes liable to the owner.
The rule here held is in harmony with that held by this court in State v. Wood, 46 Iowa, 116, in which substantially the same principle was involved. In that case the defendant had innocently come into the possession of a guitar, and after
Reversed.