Opinion
(February Term, 1895).
Indictment for Larceny — Larceny — Felonious Intent — Failure to Return Property Found.
1. To constitute larceny, there must be an original felonious intent, general or special, in the mind of the accused, at the time of the taking or finding lost property, otherwise it is a trespass only and not a felony.
2. The omission to use the ordinary means of discovering the owner of property lost and found raises a presumption of fraudulent intention against the finder, which it is necessary for him to explain and obviate, and this is done by showing that he endeavored to find the owner or that he openly made known the finding so as to make himself responsible to the owner for the value when he should appear.
3. In a trial for larceny it appeared that defendant, while away from home, received the property, consisting of a pocketbook containing money, bank certificates, and a check payable to the prosecuting witness, from his wife, who found it, defendant not having been present when it was found. The day after he returned home defendant wrote to the bank which issued the certificate for the name of the owner. There was some delay in returning the property, caused by a feeling engendered by correspondence with the owner, to whom defendant explained the whole matter, and by defendant's demand for a reward: Held, error to submit the case to the jury.
CRIMINAL ACTION, tried at November Term, 1894, of COLUMBUS, before Brown, J.
(1031) The Attorney-General for the State.
Lewis Burkhead and J. B. Schulken for defendant.
The defendant was indicted for stealing a pocketbook containing money, bank certificates and a check payable to the prosecutor, also for receiving the same knowing that they were stolen property. The second count was withdrawn and is out of the case.
In every instance there must be an original, felonious intent, general or special, at the time of the taking or finding of lost property, in the mind of the accused, to construe larceny. If such intent be present, no subsequent act or explanation can change the felonious character of the taking. If it be not present, it is only a trespass and cannot be made a felony by any subsequent misconduct or bad faith in the taker. "The omission to use the ordinary and well known means of discovering the owner of goods lost and found, raises a presumption of fraudulent intention, more or less strong against the finder, which it behooves him to explain and obviate; and this is most readily and naturally done by evidence that he endeavored to discover the owner, and kept the goods safely in his custody, until it was reasonably supposed that he could not be found, or that he openly made known the finding, so as to make himself responsible for the value to the owner when he should appear. In this class of cases it is material for the prosecutor to show that the felonious intent was contemporaneous with finding." 3 (1032) Greenleaf Ev., sec. 159; Rapalje on Larceny.
It it [is] urged by the Attorney-General that the defendant's delay from 9 May to 6 June to disclose the fact that he had possession of the pocket-book, with internal evidence of the ownership, was some evidence of an original felonious intent and was sufficient to be submitted to the jury. If that were so, it could only relate to the receiving of the pocketbook from his wife, as there is no evidence that he was present at the finding of the lost article, and the count for receiving is not before the court. We do not think, however, that the evidence was such as ought to be submitted to a jury. His explanation is found in his letters used by the State, in which it appears that on the day after his return to his home in Wheeling, West Virginia, from a Southern tour, he made a proper and reasonable effort to discover the owner by writing to the bank at Wilmington, which had issued the certificates, etc., and in a few days explained the whole matter to the owner and kept his property safe for him. Without this voluntary disclosure, the prosecutor had not a scintilla of evidence by which he could trace his property or the defendant. Our views on such evidence as we think should not go to the jury were fully expressed in Young v. R. R., ante, 932. The further delay in the matter seems to be the result of some feeling engendered by the correspondence, and because defendant demanded compensation or reward. This does not affect the main question. In Regina v. Gardner, L. C. Crown Cases, 243, this case is found: Bougher, a lad fourteen years old, found a check and soon showed it to the defendant, who took it and refused to return it. He knew and saw the owner but held the check for a reward, and the jury so found. Held by the Court that the facts do not show any felonious intent, and that the mere withholding the check did not amount to such a taking as is required to constitute the offense of larceny. (1033)
New Trial.
Cited: S. v. Foy, 131 N.C. 806.