1. The defendants, in the present case, were tried on the second count in the indictment. That count, as found in the transcript, is imperfect. It charges that the defendants “feloniously took and carried a bale of lint cotton.” The word ‘away’ is omitted. This is probably the result of an error in transcribing; but if not, this count of the indictment is bad. If the cotton was delivered to the railroad for transportation, then the road had a special property in it: and in an indictment for its larceny, it would be sufficient to lay the property in the railroad company. Satterwhite v. The State, at present term.
2. In 1 Hale, Pleas of the Grown, 508, it is said: “ As it is cepit and asportavit, so it must be felonice, or, animo furandi, otherwise it is not felony, for it is the mind that makes the taking of another’s goods to be a felony, or a bare trespass only; but because the intention and mind are secret, the intention must be judged by the circumstances of the fact, and though these circumstances are various, and may sometimes deceive, yet regularly and ordinarily these circum*384stances following, direct in the case.” In 2 Enss. Cr. 8, it is said: “It is clear that the taking, though wrongful, may only amount to a trespass. Thus, if a man take away the goods of another openly, before him or other persons, otherwise than by apparent robbery, this carries with it an evidence only of trespass, because done openly in the presence of the owner, or of other persons who are known to the owner.” See, also, 2 Whar. Amer. Cr. Law, § 1786; 2 Bish. Cr. Law, § 840; McDaniel v. State, 8 Sm. & Mar. 401, 418. So in Spivey v. The State, 26 Ala. 90, this court said: “To constitute the offense of larceny, according to the common law, there must be a taking from the possession, a carrying away against the wdll of the owner, and a felonious intent to convert the thing taken to the offender’s use.” — See, also, Wilson v. The State, 1 Por. 118; Hawkins’ case, 8 Por. 461. The authorities cited above clearly show that it is not every taking and carrying away of the personal goods of another that constitutes larceny. Nor is the conversion of goods found necessarily larceny. If this were so, then there would be left little or no ground for the civil actions of trover apd trespass de bonis asportatis to operate upon. Whether the conversion, or taking and carrying away, amounts to larceny, depends on the circumstances which surround, or attend the act. Unless these circumstances convince the jury that the intent was felonious, then the act is but a civil wrong. Secrecy in acquiring the goods, attempts at concealment, false denial of possession, are among the evidences which distinguish larceny from trespass.
8. The charge given in this case, at the instance of the prosecution, is in the following language: “Tf the jury believe from the evidence that a bale of cotton was dropped from the cars of the Montgomery and Eufaula Eailroad, and that defendants took and carried away said bale of cotton with intent to convert it to their own use, and not with the intent of returning it to the owner, then they are guilty of larceny.” It will be seen that these are the ingredients of trover and conversion, and that less than this would not justify a verdict for the plaintiffs, were that action brought on the facts shown in this record. It entirely ignores the question of felonious intent, without which there can be no larceny. That question should have entered into the hypothesis of the charge, to be determined by the jury on ail the facts and circumstances in evidence before them. And it is no answer to this to say that the conduct of the alleged fuilty parties shows that the taking and secretion of the ale of cotton proves the felonious intent. That was evidence, if believed, to be weighed by the jury, and may *385have justified their finding. Still it was, at most, only testimony, upon the sufficiency of which it was their duty to pass. The court, in the charge, could not ignore it, and could not, as matter of law, pronounce it sufficient.
4. In Griggs v. State, (in this volume,) we laid down the rule by which to determine when the finder of lost goods commits a larceny in converting them. We need add nothing to what we then said. If the testimony in the present record be true, the bale of cotton had been compressed for shipment, and was found on the track where there was no road-crossing. This, unexplained, would tend to show it must have fallen from the train; and, whether it had marks or not, would tend to show that the finder could easily ascertain who had the special property in it, viz., on this hypothesis, the railroad company. There is nothing in the present record tending to show that the bale of cotton was abandoned goods. Neither of the charges asked should have been given.
Reversed and remanded. Let the defendants remain in custody until discharged by due course of law.