People v. Kaatz

By the Court, Emott, J.

The principal question in this case arises upon the rule of law laid down by the court below in its charge, that if the cattle escaped from the lots where they were at pasture, and were on the highway, still the defendant was guilty of larceny if he drove them to the city of New-York with intent to convert them to his own use. This presents the question whether larceny can be committed of cattle which have accidentally broken out of an inclosure and are found in the highway by the person who abstracts them.

The rule that larceny cannot be committed of goods accidentally lost, or of waifs or estrays, was undoubtedly, as is observed by Thompson, O. J., in his dissenting opinion in The People v. Anderson ( 14 John., 299 ), the result of the theory that such goods were derelict or abandoned by the owner. Hence they became bona vacantia, and, by the law of nature, belonged to the first finder or occupant. Waifs, goods thrown away by a thief in his flight, are expressly recognized as abandoned by the true owner, unless he was immediately in pursuit, and in effort to apprehend the thief and to reclaim his property. ( 1 Conn., 296 .) Estrays are defined to be animals found wandering and no man knoweth the owner of them; and although, by the law of England, such property is claimed for the sovereign, still, until that claim was asserted and perfected with the prescribed formalities, there was no apparent owner or possessor of the property; and therefore, as Lord Hale says (1 P. C., 510), larceny cannot be committed of such things whereof no man has any determinate property. The doctrine has been applied to estrays in cases where the animals are found in the property of another, and there is no case where any such presumption of dereliction has been made as to cattle accidentally escaping from the owner’s close to the highway. *139 The case of inanimate goods or chattels, lost by the owner and taken up by a person finding them in the road, is widely different in this particular from that of live animals escaped from an inclosure. Inanimate chattels cannot return or be restored to the true owner without the intervention of the finder, and the law does not compel him, at his peril, to pass on and leave them in the road or place where he discovers them. His taking them into his possession, therefore, is a perfectly lawful act; and he may intend to appropriate such articles to his own use, if the owner be unknown, and there be no marks on the property to point him out. If the finder subsequently continue or determine to withhold the property from the owner after he has been ascertained, still, that does not make his first act in taking possession of such chattels felonious, or even unlawful. Although, in such a case, there may be a subsequent conversion there is no original larceny.

But domestic animals are always presumed to have animus revertendi; and the fact that they have broken out of an inclosure, or are found at large in the highway, does not give any person meeting them a right to presume that the owner has lost them, and has no expectation of finding or reclaiming his property, as in the case of money or a pocketbook, or the like, accidentally dropped.

Besides, the doctrine we are considering is applied invariably with another qualification, which can hardly be supposed in such a case as the one at bar. The circumstances must at least be such as not to exclude the supposition of good faith in the taker of the property. Lord Hale (1 P. C., 506), after giving several cases and instances to illustrate the principle, lays down the rule that the taking of waif, estray or the like, must be when the party really believes them to be such, and does not attempt to color a felonious taking; and that the pretence of finding will not excuse one who takes goods with an unlawful intent from a place where they either lawfully or ordinarily may be. In the *140 recent English decisions the. rule has been thus explained and applied, and the excuse of = finding property is not allowed to prevent a conviction for larceny, unless the prisoner could really and honestly have believed that the property was lost and given up by the owner, .and there were no apparent means of finding who that owner was. The.rule was thus laid down ■ by Baron Hulloek, in 1 Lewin (p. 195), in reference to the taking of a horse straying .on the highway, and by Cresswell, J., in a case where a :man was convicted of larceny for, taking sheep which he found in the road (MS. case, cited in 2 Russ. on Cr., 12); and in a recent case, reported in 2 Car & Kir. (p. 839), Baron- Parke thus states the result of the authorities: K The rule of law is, that if a man find goods that have been lost, or are reasonably supposed by him to have been actually lost, and appropriates them with intent to take the entire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny; but if he has taken them with like intent, though lost or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny.”

The American cases must be interpreted in the same way. The People v. Anderson ( 14 John., 294 ), which is the leading case in our courts, was a case where the property, a trunk and its contents, was lost, that is, it had accidentally got out of the possession of the owner. He was ignorant where it was, had no apparent means of finding or recovering it, it was without- any marks of his ownership,. and he might be supposed to have temporarily, if not finally, abandoned the property and the hope of its return. The case is :not an authority for extending the principle beyond cases where the property taken was, in a just sense, lost, and the party taking it really its finder. And- a farther limitation is that the defendant must, or at least might, have believed, when he took the property, that it was lost and derelict, and there must be no means of indicating or discovering the owner apparent about the property.

*141 Cattle escaping from an inclosure, and wandering on the highway, are not within either condition. They cannot, indeed, be said to be lost, to have become undiscoverable, or to be abandoned by the owner. They may and probably will return, or, if not, they may be tracked and recovered, and cannot be assimilated to an inanimate chattel dropped or mislaid. Such a chattel, in that case, is not in the possession of any one, and, if not taken by some finder, will be destroyed, and come to no one’s hands. The owner of these escaped cattle was still constructively in possession of them, and could have his action at once for any unlawful interference with that possession. Again, property which has such natural marks as cattle or live animals can never be considered as having no mark or sign about them by which their owner could be discovered or recognized, as may be the case with money, which has no earmark, or chattels which may be like a thousand others. No taking of live animals out of the highway, with intent to appropriate the entire dominion of them, can, therefore, be presumed or supposed to have been in good faith. The charge of the court below, on this point, was correct; and we have no doubt that there may be a conviction for a larceny in taking cattle or live animals which have escaped from an inclosure into a road.

The court was right in refusing to charge that the case being one of circumstantial evidence the jury must acquit, unless the circumstances excluded any other hypothesis except that of the prisoner’s guilt, as that must necessarily have been predicated upon the assumption that the positive evidence which had been adduced was unworthy of credit.

The court erred, however, in rejecting the question whether the witness Julia Kaatz knew that the prisoner had purchased any cattle from Milhelm, who was seen driving the cattle in question on the night when they were stolen, and to whom the prisoner paid money the following morning. It is probable that the witness would have answered in the *142 negative; but the prisoner had a right to put the question and have it answered. As he had been proved to be in possession of the stolen property, it was important for him to prove, if he could, that he had obtained it by purchase.

For that error the conviction must be reversed and a new trial ordered.

■Ordered accordingly.