| Minn. | Jun 29, 1876
When a witness is objected to, on the ground that he or she is incompetent by reason of nonage or want of intelligence, it is the province of the trial ■court to determine the witness’ competency, and its decision cannot be reviewed unless there is a clear abuse of discretion, or the court admits or rejects the witness upon an •erroneous view of a legal principle. Com. v. Mullins, 2 Allen, 295 ; Com. v. Hills, 10 Cush. 530.
No question seenls to have been made as to the witness Minnie Bohn’s capacity to receive just impressions respecting the facts upon which she was to bo examined. Upon the question of her understanding the obligation of an oath, the court below seems to have held it sufficient to admit her if she understood that she was brought to court to tell the truth, that it is wrongful to tell a lie, and that she would be punished if she told a lie. Under our statute, which admits as well those who profess to believe only in the punishment which human laws inflict as those who believe in punishment by divine law, we think the test acted on by the court below sufficient.
The questions put to the witnesses Wright and Briggs Were improper, in the same sense that evidence to sustain a witness’ character for veracity is, unless there is evidence impeaching it, improper. It is superfluous. Until a witness’ character is impeached, it is presumed to be good;
The connection of Jacob Levy with the attempt of his brother, Moses, to mislead the sheriff as to who had committed the larceny was sufficiently shown to admit proof of what Moses said and did for that purpose.
The larceny charged was of property which had been lost or mislaid by the owner, and found by'the defendant’s wife,, and by her passed at once to her husband. The rule laid down by the court, in its instructions. to the jury, as. applicable to cases of finding, was that, “to render the finder of lost property guilty of larceny, two things must concur: (1) The finder must, at the time of the finding and taking, have and entertain the intention of feloniously appropriating the property to his own use, without the consent of the owner. (2) He must, at the time of finding, either know the owner, or have the immediate means of ascertaining him, or have reason to believe, and actually believe, that the owner will be found.” This definition of the offence the court did no,t vary in any part of its charge. Detached portions of the charge were excepted to, but such portions were not intended by the court, and could not have been understood by the jury, as stating all the elements necessary to constitute the offence,
The defendant requested the court to charge ‘ ‘ that the jury must acquit the defendant, unless they find (1) that he originally took the property with a felonious intent; (2) that said property, at the time it was taken by him, must have been known by him to belong to Wright, (the owner,) and there must have been some mark or marks upon it by which he could gain immediate knowledge as to who the
The difference between the charge requested and that given consists in this, that the charge requested would make the offence (although the felonious intent were proved) depend on the finder knowing, before he converts the property, who the owner is ; while the charge as given requires only that he shall either know who he is, or have the immediate means of ascertaining him, or have reason to believe, and actually believe, that he will be found. There are some authorities which hold the first of these propositions to be the correct rule, (see 2 Bish. Cr. Law, § 860, and cases cited in note 7,) while others hold the latter rule. Among these Regina v. Thurborn, 2 Carr. & Kir. 832, is a leading case. The rule there laid down is, if a “ man find goods that have been .actually lost, or are reasonably supposed by him to have been lost, and appropriates them with intent to take the entire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny; but, if he has taken them with like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny.”
And this avo think to-be more consonant to reason ; for when a man finds goods which do not belong to him, he can only be justified in taking them, with intent to entirely appropriate them to himself, by the belief that they have been abandoned by the true owner, or that such OAvner cannot be found. The moral guilt of intending to so appropriate them, Avhen he has reason to believe, and does believe, that the OAvner will be found, is certainly as great as though he actually Ioioavs who the OAvner is.
Finding goods under such circumstances, he has a right to take them into his possession with a lawful intent — that is, with intent to return them to the OAvner Avhen ascertained ; but he has no right, under such circumstances, to
Order affirmed.