STATEv. ROPER,14 N.C. 473(1832)
THE STATE v. SOLOMON ROPER.
Supreme Court of North Carolina
1. Where a shawl was dropped in an exhibition room, and picked up by the defendant, placed in a conspicuous situation, and afterwards appropriated to his own use:It was heldthat he was not guilty of larceny.
2. Can larceny be committed of goods that are lost?Qu.
THE defendant was indicted for petit larceny in stealing a shawl. Upon the trial beforeSwain, J., at IREDELL, on the last circuit, many witnesses were examined, and the result of all the testimony was as follows: An exhibition of wild animals took place, in which the animals were placed on the inside of a circular tent, a chain was stretched so as to form a ring within the tent, the animals were between the chain and the sides of the tent, and the spectators admitted into the ring formedPage 384by the chain; that upon one occasion, when the ring was full of spectators, the defendant was leaning upon the chain looking at the animals; that some person exclaimed,"There is a shawl";that the defendant picked it up from the ground near his feet, shook some rubbish from it, threw it across the chain, and leaned his body over it; that in a few minutes he took the shawl and secreted it under his coat, left the ring, went to his horse and put the shawl under a sheepskin, which served as a cover for his saddle. The owner of the shawl deposed that she did not know when she lost it; that she continued in the ring until she was told that the defendant had it, and that then, for the first time, she ascertained that it was lost.
For the defendant it was insisted, (1) that the shawl being lost, and the owner unknown, it was not the subject of larceny; (2) that unless the first taking was with a felonious intent, the defendant was not guilty of larceny, and of course must be acquitted, unless the jury believed that he intended to steal the shawl at the instant he picked it up and hung it on the chain.
His Honor charged the jury that the guilt of the defendant did not depend upon the felonious intent having entered his mind at the (474) instant he discovered the shawl. That if at the time he took the shawl from the chain he knew to whom it belonged, but took it with the intention of stealing it, he was guilty, although he might have picked it up with an intention of preventing it from being injured. And further, that if at the time the defendant took the shawl from the chain the owner was within the ring, and within the sound of his, the defendant's voice, although she was unknown to him, if he took it with an intent to appropriate it to his own use, he was guilty of larceny. The defendant was convicted and appealed.
Gaston for defendant.Attorney-General contra.
DANIEL, J.
In a late work of great learning and research, larceny is defined to be "the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property without the consent of the owner." (2 East P. C., ch. 16, sec. 2, p. 553.) But there must be an actual taking or severance of the goods from the possession of the owner, on the ground that larceny includes a trespass; if, therefore, there be no trespass in taking the goods, there can be no felony in carrying them away. (2 East P. C., 554; 1 Hawk P. C., ch. 33, sec. 1; 1 Russell, 95.) It is a general maxim that the ownership of goods draws after it the possession.Page 385But if the owner or person whose property is alleged to be stolen be not actually or constructively in possession of it, the taking cannot amount to larceny. Therefore, if goods were lost by the owner and found by another, and the taking wasbona fide, and not under a mere pretense of finding, and the finder afterwards feloniously determines to appropriate them to his own use, it will not be larceny. But if the finder, at the time of taking the goods, knew who was the owner, the subsequent appropriation in a secret manner, or his denial of any knowledge of the goods, or any other acts showing a felonious intent, would be evidence to be left to the jury, from which they might infer that the original (475) taking was with a felonious intent. (East P. C., 664;Lear'scase, 215, n.; 1 Hale, 506; 2ibid., 507;Rex v. Walters. 3 Burns Justice, (180.) If money, by mistake, is sent with a bureau to be repaired, and it is taken with a felonious intent, it will be a larceny, because the money was not lost. (Cartwright v. Green, 8 Ves., 405.) In the case before the Court, it appears that the shawl was lost, and that the defendant took it up, after a bystander had said,"There is a shawl";that he shook the dirt off it, and then laid it on the chain, and leaned over it for a few moments, and then secreted it in his bosom, and left the ring. The shawl had not been placed by the owner where the defendant took it from, but it had accidentally fallen there, and was lost. The defendant, when he took it up in a public manner, was ignorant of the owner; he continued thus ignorant until some time after he left the ring. The circumstances of his not calling out and proclaiming to the crowd that he had found a shawl does not alter the case; neither does the circumstance of his laying the shawl on the chain, and leaving it for a short space of time, and returning and then taking it from the chain and carrying it away with a felonious intent. The owner had lost it; she had not regained possession of it, nor did the defendant know the owner. The taking from that place (I mean the chain) was not a taking from the possession of the owner. I think, from the time the defendant took the shawl from the ground until he delivered it to the owner, it was in his possession. As the original taking of the lost goods was without a felonious intent, the subsequent felonious asportation will not make the defendant guilty of larceny. I think a new trial should be granted.
HENDERSON, C. J.
This case does not present the question whether lost property is the object of larceny, for the original taking of the shawl from the ground was not attended by any circumstance from which a felonious intent could be inferred; it was not doneclam et secrete, butopenly and publicly. The fraudulent and secret conversion (476) of it afterwards to the defendant's use could not impress a larcenous character on the original taking; at most, it would only bePage 386evidence of the original intent, and the open and public manner in which the act was done precludes all idea of a larcenous intent, and shows, too plainly to be controverted, that such intent, if it ever existed, was an afterthought. So far, therefore, as the secret and fraudulent withdrawal of the shawl from the chain gave a larcenous character to the first taking, it is to be entirely discarded from the case, as even those that think that lost goods are the object of larceny admit that the original taking must be with a larcenous intent; that noafter-thought, or after-act, can convert it into a felony. For my own part, thinking that there must be anunlawfultaking from the possession of the owner to constitute a larceny, I am of opinion that lost goods are not the object of larceny. Some of my reasons, given in a much more forcible manner than I can give them, are to be found inJudge Spencer'sopinion in the case of thePeople v. Anderson, 14 John., 294. Runaway slaves do not fall within the description of lost property, for from their nature, being intelligent beings, they are incapable of becoming estrays in the legal or technical meaning of the word, which class of lost property they, in their runaway state, more closely resemble than any other. Possibly this exception to the general rule may be founded in policy, as no vigilance of the owner can prevent their absconding, and the law attaches some degree of negligence to the owner inlosinghis property, and therefore does not protect it, when lost, byhighpenal sanctions. If the removal of the shawl from the chain was a continuous act of the possession acquired by the defendant when he took it from the ground, and not a distinct and independent acquisition, it was entirely immaterial whether he then knew who was the owner, or whether she was then within the ring, or within the sound of his voice; in neither case could it be a larceny. To constitute it a larceny, there must have been (477) anabandonmentof the possession by the finder before it was taken from the chain. Whether there had been such an abandonment should have been submitted to the jury. It is true it is a question of law, to be decided by the court, but the facts upon which it arises are to be ascertained, either by the admission of the party upon record or by the verdict of the jury. The facts, then, are in no way ascertained, for abandonment is an intent of the mind, evidenced, it is true, by an overt act, from which, as in the present case, the jury alone is competent to make the inference. There is no fact stated upon the record from which the law can draw the inference. Thequo animowith which the defendant placed the shawl on the chain, standing by or near to it, is for the jury and not for the court, and I would not add a single instance of an inference of fact to be drawn by the law, and very clearly this is not a case where any judge would do so. The act is too equivocal and subject to too many shades of difference to infer from it any rule ofPage 387intent applicable to all cases, and each case must be left to be decided according to its own particular and minute circumstances; that is, according to theactualintent in each particular case. I am of opinion, therefore, that the defendant is entitled to a new trial, because the intention with which he placed the shawl on the chain was not submitted to the jury, and without an abandonment of possession by him, no matter under what circumstances he afterwards withdrew it from the chain; no matter whether he knew who was the owner or not, or whether she was or was not within the sound of his voice, such withdrawal was not a larceny. Should the jury be of opinion that there had been anabandonmentof the possession, I am not prepared to say that the article was then placed in a situation to be the object of larceny. Did such abandonment by hanging it on the chain, if it was an abandonment, restore the possession to the owner,without her knowledge?And did it merely cease to be lost property? Or did it only restore it to itssituationwhen it was first discovered on the ground?
These are questions I leave to future discussion, if the occasion should require it, for, as I said before, I am not prepared to (478) decide them.
PER CURIAM. Judgment reversed.Cited: S. v. Williams,31 N.C. 146;S. v. Farrow,61 N.C. 163;S. v.Deal,64 N.C. 275.