Beatty v. State

Cooper, J.,

delivered the opinion of the court.

The court erred in granting the instruction asked by the State and in refusing those prayed by the defendant. In England there are to be found many cases in which it is announced that an inanimate chattel lost by the owner and having no indicia from which the ownership might be inferred could not be the subject of larceny by one finding it, who at the time of the capture knew no facts or circumstances from which he might discover the owner. Such property was considered as without an owner and therefore not the subject of larceny. 3 Inst. 108 ; 1 Hawk. P. C. c. 19, § 38; Regina v. Mole, 47 E. C. L. 416 ; Regina v. Thurborn, 1 Den. C. C. 387. It is probable that animals estray also stood upon the same footing, for Bracton in enumerating the things which could not be stolen includes “ animalia vagantia quae nullus sequitur, petit vel advocat.” 2 Russell on Crimes 180 and note t.

If the finder, however, knew at the time of the finding to whom the chattel belonged, or had knowledge of such facts as, if pursued, would discover the owner, and at the time of taking possession intended to steal, this was larceny. Lamb’s Case, East P. C. c. 16, § 99; Rex v. Pope, 6 C. & P. 346; Regina v. Thurborn, ubi supra ; Sears’s Case, 1 Leach 463 notis; 2 Bussell on Crimes 167. But a fraudulent conversion after possession taken by the finder of property of which larceny could be committed was not larceny if the possession *21 was acquired rightfully and in good faith. Ransom v. State, 22 Conn. 153 ; State v. Roper, 3 Dev. 473 ; State v. Conway, 18 Mo. 321 ; Regina v. Thurborn, ubi supra ; Regina v. Christopher, Bell C. C. 27; Regina v. Preston, 2 Den. C. C. 353; 2 Russell on Crimes 9. In the cases cited by the attorney general, People v. Kaatz, 3 Park. Cr. 129 ; State v. Martin, 28 Mo. 530 , it is assumed that the English rule that larceny cannot be committed in respect to lost property is correct, and the argument in those cases is to show that domestic animals can under no circumstances' be considered as “ lost ” within the meaning of that rule. It was said, in Griggs v. State, 58 Ala. 425 , that the English courts have been followed by those of only two of the American States — Tennessee, in Porter v. State, Mart. & Y. 226, and New York, in People v. Anderson, 14 John. 294 . It would seem that the rule is recognized in Missouri also. State v. Conway, ubi supra.

We'are satisfied that the property charged to have been stolen by the appellant might have been the subject of larceny, nor do we. understand that this is now, or was, controverted in the court below. The vice in the instruction given for the State is that a subsequent fraudulent conversion of the property was declared to be larceny, although the possession was taken lawfully and in good faith. The instructions asked by the accused and rejected by the court announced the converse proposition.

.If one unlawfully takes possession of the personal property of another, not intending at the time to steal, and subsequently converts it, intending to steal, this is larceny, for there is then both a trespass and a fraudulent conversion with intent to steal. Commonwealth v. White, 11 Cush. 483 ; Regina v. Riley, 14 Eng. L. & Eq. 544; Griggs v. State, 58 Ala. 425 . But if the actual taking is lawful and bona fide, a subsequent fraudulent conversion is not larceny, because there is no trespass, and every larceny includes a trespass. Tanner v. Commonwealth, 14 Gratt. 635 ; 2 Bish. Crim. Law, § 799, and authorities there cited.

The conduct and doings of the appellant with the property subsequent to his taking it into possession are admissible in evidence for the purpose of showing quo animo the possession was taken. He *22 had authority of law to take up the mule as au estray if his intention was to deal with it as such, and if the jury shall believe from all the facts and circumstances that such was his intent, ho subsequent fraudulent conversion would be larceny. If, on the other hand, it shall appear that he professed to take it as an estray, intending at the time to steal it, he is guilty of larceny without regard to the subsequent conversion, for in such case the taking was unlawful and a trespass, and the intent to steal makes the trespass larceny.

Judgment reversed.