People v. Anderson

Spencer, J.,

delivered the opinion of the court. The prisoner was convicted at the last court of oyer and terminer and gaol delivery, held.in and for the county of Otsego ; and a question of law having arisen on the trial, sentence was respited, and he has now' been brought up on Habeas Corpus, to receive the judgment of this court.

On the trial, it came out in proof, that the articles for the stealing of which the prisoner was indicted, were contained in a trunk, and that he found this trunk on the highway. The court below instructed the jury, that if the prisoner took the trunk with intention to steal it, they ought to find him guilty, and-that in determining that question they had a right to take into consideration the prisoner’s subsequent conduct, as well as all the circumstances of the case.

We assume it as an undisputed fact, that the prisoner found the trunk bona fide, and, consequently, that it had been lost by its proprietor; and we proceed on the ground, that if any subsequent embezzlement of the contents of the trunk would make the act a larceny of those articles, that then the conviction is correct. But the court are of the opinion, that the bona fide finder of a lost article, or of a lost trunk containing goods, cannot be guilty of larceny by any subsequent act of his, in concealing or appropriating to his own use the article, or the con? tents of a trunk thus found. In Butler’s case, in the 28th of Eltz. this doctrine is fully established. In that case it was détided., that the intent to steal must be when it comes into the ' . hands or possession of the party; for if he hath the possession of it once lawfully, though he hath animum furandi afterwards, and carry it away, it is no larceny. (3 Inst. 107.) Again; Lord Coke lays down the law, as drawn from the year books, (3 Inst. 107.,) to be, that if one lose his goods, and another find them, though he convert them, animo furandi, to his own use, yet it is no^larceny, for the first taking is lawful. So, (he says,) if one find treasure-trove or waif or stray, and convert them, ut supra, it is no larceny, both in respect of the finding, and also for that dominus rerum non apparet. The same doctrine will be found in 1 Hale P. C. 506., and 1 Hawk. 208 s. 1. and 2. In 2 East P. C. 663., it is expressly stated, that where one finds a purse in the highway, which he takes and carries away, it is no felony, although it may be attended with all those circumstances which usually prove a taking with a felonious intent, such as denying or secreting it.

It cannot be doubted, that an indictment for a larceny must charge that the goods were feloniously taken, as well as feloniously carried away; and hence it is an established position, that if the taking is not an act of trespass, there can be no fclo- „ ny in carrying away the goods. (1 Hawk. ch. 33. Kelyng, 24. Dalton, 3.)

There can be no trespass in taking a chattel found in the highway, and the finder has a right to beep the possession against every one but the true owner. How, then, can it be said, that a thing found bona fide, and of which the finder had a right to take possession, shall be deemed to be taken feloniously, in consequence of a subsequent conversion, by denying and secreting it, with an intention to appropriate it to the use of the finder ?

It was urged, on the part of the people, that the same test ought to be applied, in the case of the finding of a chattel, and its subsequent conversion to the use of the finder, to ascertain the felonious intention, as has been applied where goods, and particularly horses and carriages, have been feloniously obtained, under the pretence that the person applying for,and obtaining them, would use them for a certain specified purpose, and then has gone off with them, and converted them to his own use. On a slight examination, the cases will be found to be very dissimilar: in the latter case, there must have been an original felonious intention, and unless (his can be fairly deduced from all the facts in the case, it is no felony. Where that original felonious intention exists, although the person having it has obtained the consent of the proprietor to let him have the possession for one purpose, he intended to get it for another and far different purpose; and he, therefore, never had the possession for this different and fraudulent purpose, and may be fairly said to have acquired possession feloniously. It is not so with regard to a person coming fairly into the possession, by finding. No-fraud is practised on any one, in first acquiring the possession. If, therefore, never can he a question with a jury, how far forth a person who found a chattel, intended to find it for the purpose" of stealing it. The very nature of the case excludes a premeditated or already formed intention to steal. That depends, as matter of fact, upon a variety of circumstances, such as the value, the facility of concealment, &c., which are matters of after consideration. Hence, we do not find a single case, in the reports ■of criminal trials, or in the treatises on criminal law, in which it has ever been intimated, that a person actually finding a chattel, has been held to have stolen it, from the circumstance of denial, concealment, or appropriation ; nor from the happening of any of those facts which, in reference to the taking of chattels, ordinarily show a felonious intention. It is true that there aie cases in which, though the party apparently had the possession of the chattel, yet the taking has been adjudged felonious. The case of a guest at a tavern, or of a gentleman’s butler, who have taken the things committed to their use or care, are mentioned in the books as illustrative of the principle, that the mere naked possession for a special purpose, will not protect the party, if die take it away feloniously. So if a bailee of a bale or trunk of goods, break the bale or trunk, and take and carry away a part of the goods, with intent to steal them, it is larceny; but if he carry them to a different place than the one agreed upon, and convert the whole to his use, it is not larceny. East (2 C. L* 695.) observes, that this distinction seems to stand ¿more upon positive law, not now to be questioned, than upon sound reasoning ; aqd he adopts .Lord Hale's reasoning, that the privity of contract is determined by the act of breaking the pack» age, which makes him a trespasser, and that, therefore, it makes no difference whether he takes all, or a part only, of the goods after the package is broken. There can be no analogy between this case and that of the carrier who breaks the package, or opens á trunk animo furandi, because the finder of goods has them not in virtue of any contract, and violates none, in opening a bale or trunk.

The court believe that it would be an innovation on the criminal law, to consider this as a case of larceny ; and they, therefore, direct the prisoner to be discharged.