Opinion
04-26-1900
STATE v. STEVENS.
Robert C. White, Atty. Gen., for the State. William P. Shockley, for defendant.
John Stevens was indicted and tried for larceny. Verdict of not guilty.
At the trial the state proved that on the evening of January 4, 1900, one John W. Ennis, while paying some money to a colored man in a store in Clayton, laid upon a safe in said store $17 in paper money; that he had no recollection of picking said money, tp. and on the following morning found it was not in his pocketbook where he had been keeping the same; that there were 10 or 12 men in the store at the time, the defendant being among the number; that, owing to information which he received, he asked the defendant for the money, but was told by the latter that he did not have the same. The witness Wells, who was a clerk in the store, testified that while he and the defendant were aloue in the store later, the same evening that the money was lost, he saw Stevens stoop and pick up something near the safe, putting it in his inside pocket; that he could not say what it was, but that it was green and white; that he asked Stevens whether it was a one or a five, and that Stevens said, "I don't know; I have not looked at it;" and in the course of a subsequent conversation said. "If it is Jim Saxon's, he will get it; if not, the man who gets it will have it to prove;" that the defendant later said to witness. "Don't you go around and blab it to Jim" (meaning Mr. Saxon, the proprietor of the store). The defendant denied finding any money, and also denied having the conversation testified to by Wells.
Argued before LORE, C. J., and SPRUANCE and GRUBB, JJ.
Robert C. White, Atty. Gen., for the State. William P. Shockley, for defendant.
LORE. C. J. (charging the jury). John Stevens, the defendant, the prisoner at the bar, is charged with larceny, which is the felonious taking and carrying away of the goods and chattels of another with intent to convert the same to the taker's use without the consent of the owner. The counsel for the defendant has asked us to charge you that if the finder of lost property comes into the possession of the property lawfully, and he makes no trespass in taking the property into his possession, then the finder of lost property cannot commit larceny of the simple act of finding and taking into his possession. Clark, Cr. Law, 255, 266. That if the finder of lost property does not know who the property belongs to at the time of finding it, and takes it innocently, as a simple finder, that no subsequent change of mind and fraudulent appropriation can make him guilty of larceny. Clark, Cr. Law, 255, 256, 266, 267; People v. Cogdell, 1 Hill, 94; People v. Anderson, 14 Johns. 294; Reg. v. Preston, 5 Cox, Cr. Cas. 390; State v. Roper, 3 Dev. 473, 24 Am. Dec. 268; Ransom v. State, 22 Conn. 153; State v. Conway, 18 Mo. 321; Mayes v. State (Tenn.) 4 S. W. 659; Starck v. State, 63 Ind. 285, 30 Am. Rep. 214; Lane v. People, 5 Gilman, 305. That if there were no marks upon the lost goods by which the finder could discover the owner of them, or if the finder had no knowledge of the owner of them, the finding and retention of them could not constitute the crime of larceny, and that, if the jury discovered the same from the facts in evidence, they were to acquit. That proof must be given of the genuineness of the notes. State v. Dobson, 3 Har. 563. That lost goods cannot be the subject of larceny. State v. Roper, 3 Dev. 473, 470; People v. Anderson, 14 Johns. 294, 296. That, unless the felonious intent was formed at the time of the finding, the jury are to acquit. Starck v. State, 68 Ind. 287, 30 Am. Rep. 214.
Gentlemen, these prayers contain in the main a correct statement of the law, if the case be a simple finding. But not every one who finds and keeps goods that are lost or laid down is innocent. The general rule governing such cases is this: If the finder knows who the owner of the lost Chattel is from any marks upon it, or if, from the circumstances under which it was found, the owner could have reasonably been ascertained, then the fraudulent conversion to the finder's use is sufficient evidence to justify the jury in finding a felonious intent. Should it be found, therefore, when a person picks up goods that have been laid down or lost, that he conceals them; that at the time he discloses a knowledge of the owner, and states that if they were the goods of a certain one he would give them to him, and if they were the goods of any one else they would have to prove it; if it should be found that the articles so found when asked for were not disclosed, but concealed, and that the party taking the goods is actually talking to the owner of them, and denies the possession of the goods,—we charge you that in such a case it would not be a case of ordinary finding, but you should take into consideration all such circumstances attendingthe finding of the goods, and say whether or not at the time of the alleged finding he intended to convert them to his own use. Such circumstances would be evidence from which you might reasonably infer felonious intent. The rule is well slated in 3 Greenl. Ev. § 159, as follows: "If the finder knows who is the owner of the lost chattel, or if, from any mark upon it, or from the circumstances under which it was found, the owner could reasonably have been ascertained, then the fraudulent conversion of it to the finder's use is sufficient evidence to justify the jury in finding the felonious intent constituting a iarceny." You must determine from the evidence in this case whether this was an innocent taking of the goods,—a finding of the same, without any reasonable means of knowing the owner, and under circumstances such as would not amount to a felonious taking.
Verdict "Not guilty."