Ten. 242, (ed. 1814,) 2 Russell, 99. See Price's case, 4 Burr. 1925, 1 H. Bl. 51.

Proof of the felonious intent in the taking-goods procured by finding.] The law respecting the converting of goods found, to the finder's own use, depends upon the question of felonious intention. "If," says Lord Hale," A. finds the purse of B. in the highway, and takes and carries it away, and the case has all the circumstances that prove it to be done animo furandi, as denying or secreting it, yet it is not felony." 1 Hale, P. C. 206. But, he adds, where a man's goods are in such a place, where ordinarily they are or may be lawfully placed, and a person takes them animo furandi, it is felony, and the pretence of finding must not excuse. Id. The distinction, therefore, appears to be, that where the goods are found in such a situation that the owner may be presumed to have abandoned the property in them, the converting of them will not be a larceny ; but if, from circumstances, the finder must infer that there has been no such abandonment, it will be felony to convert them without making due inquiry as to the owner. Thus it is said by Lord Hale, that if a man hides a purse of money in his corn-mow, and his servant, finding it, takes part of it: if, by circumstances, it appear that he knew his master laid it there, it is felony; but then the circumstances must be pregnant, otherwise it may be reasonably interpreted to be a bare finding, being an unusual place for such a depositum. 1 Hale, P. C. 507.

In the following cases, although in strictness, the goods were acquired [*539] by finding, yet the converting of them was held to be *larceny. A gentleman left a trunk in a hackney coach, and the coachman, taking it, converted it to his own use, this was held to be larceny; for the coachman must have known where he took the gentleman up, and where he set him down, and ought to have restored his trunk to him. Lamb's case, 2 East, P. C. 664. In a similar case, where a box had been left in a coach, and was found at the house of a Jew, where the coachman had uncorded it, and taken out several articles, some of which were missing; the coachman being indicted for larceny, the judge directed the jury that, if they thought that the prisoner had detained the box merely in the hope that a reward would be offered for it, and that he meant then to return it to the owner, they ought to acquit him; but if they thought that he had uncorded the box not merely from curiosity, but with an intention to embezzle any part of its contents, and that he had actually taken any of the goods mentioned in the indictment, it would be matter of legal consideration, whether a person so guilty should not be reached as a felon. The jury having found the prisoner guilty; upon a case reserved, the verdict was approved of by the judges. Wynne's case, 1 Leach, 413; 2 East, P. C. 664, 697; and see Sears's case, I Leach, 415, (n.) The prosecutor, having had his hat knocked off in a quarrel with a third person, the prisoner picked it up, and carried it home. Being indicted for larceny, Park, J., said, "If a person picks up a thing and knows that he can immediately find the owner, but, instead of restoring it to the owner, converts it to his own use, this is felony" (1). Pope's case, 6 C. and P. 346 (a).

(1) State v. Weston, 9 Conn. 527. People v. M'Gowen, 17 Wend. 460. Contra, People v. Anderson, 14 Johns. 294. See Penn. v. Becomb & al., Addis. 386. Tyler v. People, 1 Bree. 227. Porter v. State, Martin & Yerg. 226. State v. Jenkins, 2 Tyler, 379.

(a) Eng. Com. L. Rep. xxv. 346.

A pocket-book, containing bank-notes, was found by the prisoner in the highway, and converted by him to his own use; upon which Lawrence, J., observed, that if the party finding property in such manner knows the owner of it, or if there be any mark upon it, by which the owner can be ascertained, and the party instead of restoring it, converts it to his own use, such converting will constitute a felonious taking. Anon. 2 Russell, 102. And in a similar case, Gibbs, C. J., stated to the jury that it was the duty of every man, who found the property of another, to use all diligence to find the owner, and not to conceal the property, (which was actually stealing it,) and appropriate it to his own use. James's case, 2 Russell, 102.

The doctrine relating to the finding of property was much discussed in a case which arose in the Court of Chancery. Ann Cartwright died possessed of a bureau, in a secret part of which she had concealed 900 guineas. After her death, Richard Cartwright, her representative, lent the bureau to his brother Henry, who took it to the East Indies, and brought it back without the contents being discovered. It was then sold to a person named Dick, for three guineas, who delivered it to one Green, a carpenter to repair it. Green employed a person named Hillingworth, who discovered the money. He only received a guinea for his trouble, and the guineas were secreted by Green, by his wife, and one Mrs. Sharpe. Cartwright hereupon filed his bill against Mr. and Mrs. Green, and Mrs. Sharpe; in which bill Dick joined, not claiming the money on *his own [ *540 ] account. The defendants demurred to the bill, on the ground that an answer to the discovery sought might subject them to criminal punishment. Lord Eldon, after taking time to look into the cases, and consult the judges, said, "I have looked into the books, and talked with some of the judges and others, and I have not found any one person to doubt that this is a felony. To constitute felony, there must of course be a felonious taking; breach of trust will not do. But, from all the cases in Hawkins, there is no doubt that this bureau, being delivered to Green for no other purpose than to repair, if he broke open any part which it was not necessary to touch for the purpose of repair, with an intention to take and appropriate to his own use what he should find, that is a felonious taking within the principle of all the modern cases, as not being warranted by the purpose for which it was delivered. If a pocket-book containing banknotes, were found in the pocket of a coat sent to be mended, and the tailor took the pocket-book out of the pocket, and the notes out of the pocket-book, there is not the least doubt that it is a felony. So if a pocket-book was left in a hackney-coach, if ten people were in the coach in the course of the day, and the coachman did not know to which of them it belonged, he acquired it by finding, certainly, but not being intrusted with it for the purpose of opening it, this is felony according to the modern cases. There is a vast number of other cases, and those with whom I have conversed upon this point, who are of very high authority, have no doubt upon it." Cartwright v. Green, 8 Ves. 435; 2 Leach, 952.

Evidence to show that the finder endeavored to discover the true owner, and kept the goods till it might be reasonably supposed that he could not be found; or that he made known his acquisition so that he might make himself responsible for the value, in case he should be called upon by the owner, are circumstances to rebut the presumption of a felonious taking and conversion. 2 East, P. C. 665. "The intention of a person taking property by finding will be felonious or not, according as his conduct, in

omitting to use due diligence to discover the owner, or in concealing the property, or in other circumstances, shows that, in the taking, he had or had not a design to deprive the owner altogether of his property." 1st Rep. Crim. Law Com. p. 18.

Where a servant, indicted for stealing bank notes the property of her master, in his dwelling-house, set up in her defence that she found them in the passage, and not knowing to whom they belonged, kept them to see if they were advertised; Park, J., held that she ought to have inquired of her master, whether they were his or not, and that not having done so, but having taken them away from the house, she was guilty of larceny. Kerr's case, 8 C. and P. 176 (a).

Proof of the felonious intent in the taking-goods taken by wife— or by wife and a stranger.] If a wife take goods of which the husband is the joint or sole owner, the taking is not larceny, because they are in law [*541] but one person, and the wife has a kind of interest in *the goods. Hawk. P. C. b. 1, c. 33, s. 19. Therefore, where the wife of a member of a friendly society, stole money belonging to the society, lodged in a box in her husband's custody, under the lock of the stewards of the society, it was held by the judges not to be a larceny. Willis's case, 1 Moody, C. C. 375 (b).

Whether where a stranger and the wife jointly steal the husband's property, it is larceny in the stranger, has been the subject of contradictory decisions. In Clark's case, O. B. 1818, 1 Moody, C. C. 376 (c), (n.) it appeared that the prosecutor's wife had assisted in carrying off the goods, and had continued to cohabit with the prisoner. On objection, the court ruled, that no person could be convicted of a felony in stealing goods when they came into his possession by the delivery of the prosecutor's wife. But in a subsequent case, referred to the opinion of the judges, it was held that where the wife and a stranger steal the goods of the husband, the stranger is guilty of larceny (1). Tolfree's case, 1 Moody, C. C. 243 (d).

Proof of the taking—with reference to the possession of the goods.] It has been already stated, (ante, p. 534,) that in order to constitute larceny, there must be such a taking of the goods, as would, without the felonious intent, amount to a trespass. Therefore, if the party obtain possession of the goods lawfully, as upon a trust, for or on account of the owner, by which he acquires a kind of special property in them, he cannot afterwards be guilty of felony in converting them to his own use, unless by some new and distinct act of taking, as by severing part of the goods from the rest with intent to convert them to his own use, he thereby determine the privity of the bailment and the special property conferred upon him, in which case he is as much guilty of a trespass against the virtual possession of the owner, by such second taking, as if the act had been done by a mere stranger. 2 East, P. C. 554. Vide post.

Proof of the taking—with reference to the possession—original taking not felonious.] In cases, therefore, where the original taking of the

(1) People v. Schuyler, 6 Cowen, 572.

(a) Eng. Com. L. Rep. xxxiv. 341. (b) 2 Eng. C. C. 375. (c) Id. 376.

(d) Id. 243.

goods is not animo furandi, a subsequent conversion of them to the party's own use will not constitute larceny. Upon an indictment for stealing, it appeared that the prosecutor's shop (containing the articles mentioned in the indictment) being on fire, his neighbors assisted him in removing his goods for their security. The prisoner probably removed all the articles which she was charged with stealing, when the prosecutor's other neighbors were thus employed. She removed some of the articles in the presence of the prosecutor, and under his observation, though not by his desire. Upon the proscutor applying to her next morning, she denied that she had any of the things belonging to him, but they were found concealed in her house. The jury found her guilty, but said, that in their opinion when she first took the goods from the shop, she had no evil intention, but that such evil intention came upon her afterwards; and upon reference to the judges, they all held the conviction [ *542 ] wrong, for if the original taking were not with intent to steal, the subsequent conversion was no felony, but a breach of trust. Leigh's case, 2 East, P. C. 694; 1 Leach, 411, (n.)

So where a letter containing a bill of exchange was by mistake delivered to another person of the same name as the person to whom it was addressed, and the person to whom it was so delivered, converted the bill of exchange to his own use, being convicted of larceny for this act, a case was reserved for the opinion of the judges, who held the conviction wrong, on the ground that it did not appear that the prisoner had any animus furandi, when he first received the letter; and a pardon was recommended. Mucklow's case, 1 Moody, C. C. 160 (a). See 1st Rep. Crim. Law Com. 17.

Proof of the taking-with reference to the possession-original tak- · ing not felonious-bailees.] The cases which most usually occur, illustrative of this doctrine, are those where goods have been delivered into the hands of a bailee for a special purpose, who thereby acquires a right to the possession, and who, if he converts them while in his possession as bailee, to his own use, even animo furandi, as he is not guilty of a trespass, is not guilty of larceny by that act. Thus if goods are delivered to a carrier to be conveyed, and he steals them on the journey, it is no felony. 1 Hale, P. C. 504. So where a man delivered his watch to the prisoner to be repaired, who instead of repairing it sold it, this was ruled by Vaughan, B., to be no felony. Levy's case, 4 C. and P. 241 (b). So where the prosecutor had delivered a horse to the prisoner, to be agisted at 1s. 6d. per week, and the latter, after keeping the animal for one week, for which he received payment, sold it in the course of the second week; the prisoner having been convicted of larceny, the judges held the conviction wrong. Charles Smith's case, 1 Moo. C. C. 474 (c).

The captain of a vessel having a number of casks of butter belonging to the prosecutor to carry on board his vessel, and having occasion to pay a debt contracted by him at a port in course of his voyage, gave an order to his mate to deliver thirteen casks of the butter to his creditor, and the casks were delivered accordingly. Being indicted for larceny, Graham, B., before whom he was tried, thought that the severance of a part of the

́ (a) 2 Eng, C. C. 160. (6) Eng. Com. L. Rep. xix. 365. (c) 2 Eng. C. C. 474.

casks from the rest, and the formed design of doing so, took the case out of the authorities cited, (1 Hale, P. C. 504; 2 East, P. C. 693,) if they could be considered as applying to the case, and the prisoner was convicted; but upon a case reserved, the judges were of opinion that it was not larceny, and that the conviction was wrong. Madox's case, Russ. and Ry. 92 (a). So where the prosecutor sent three trusses of hay consigned to a third person by the prisoner's cart, and the prisoner took away one of the trusses which was found in his possession, but not broken up; Parke, J., held this to be no larceny, the truss not being broken up. Pratley's case, 5 C. and P. 533 (b).

Where goods were delivered by the prosecutor to the prisoners, [ *543 ] *(who were not carriers, and only employed by him on that occasion) to be conveyed by them, but they were to be paid for carrying them, and instead of taking them to the place directed, they stole the goods, but without opening any of the packages, it was ruled by Patteson, J., to be no felony. Fletcher's case, 4 C. and P. 545 (c).

It is said by Lord Hale, that if A. delivers the key of his chamber to B., who unlocks the chamber, and takes the goods of A. animo furandi, this is felony, because the goods were not delivered to him, but taken by him. 1 Hale, P. C. 505. Upon this passage Mr. East remarks, that if the key be delivered for the purpose of intrusting the party with the care of the goods, it is as much a delivery of the goods themselves, as if each article had been put by the owner into the hands of the party. And then, although the taking of such goods out of the room with a fraudulent intent to convert them, might still be felony, yet it would be so on another ground, because by the act of taking the goods with such intent out of the room, where they were intended to remain for safe custody, the privity of contract would be determined in the same manner as if they had been delivered in a box, and taken out of it afterwards. 2 East, P. C. 685. It may be doubted, however, whether the construction put upon the case by Mr. East, is not carrying the doctrine as to the determination of the special property further than the decided cases war

rant.

In these cases it is always a question for the jury, whether, when the goods were taken, the prisoner had a felonious intent, for if he had, the act will amount to larceny. The prosecutor hired the prisoner at Bristol to drive fifty sheep for him to Bradford. The prisoner never took the sheep to Bradford, but sold ten of them on the way. The jury found the prisoner guilty, saying, they were of opinion that at the time he received the sheep, he intended to convert them to his own use, and not to drive them to Bradford.. On a case reserved, the judges were unanimously of opinion, that the conviction was right. Stock's case, 1 Moody, C. C. 87 (d). See M'Namee's case, Id. 388, post, p. 546. See also Goodbody's case, ante, p. 394.

Proof of the taking-with reference to the possession—original taking not felonious-bailees-determination of the bailment.] Upon the principle that it is not felony in a bailee to convert to his own use the goods bailed to him, a nice distinction has been grafted, which seems, says Mr. East, to stand more upon positive law, which cannot now be ques

(a) 1 Eng. C. C. 92. (b) Eng. Com. L. R. xxiv. 443. (e) Id. xix. 519. (d) 2 Eng. C. C. 87.