People v. M'Garren — 17 Wend. 460

Majority

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The People vs. Edward M'Garren.

Headnote

Where the personal property of one is, through inadvertence, left in the possession of another, and the latter animo furandi conceals it, he is guilty of larceny ,■ knowing it to be the property of another, his possession will not protect him from the charge of felony.

It seems that where property is found in the highway, and tlie finder knows the owner, or there be any mark upon it by which the owner may be ascertained, and the finder, instead of restoring it, converts it to his own use, such-conversion will constitute a felonious taking.

A person not believing in the existence of a Supreme Being who will punish false swearing, is not a competent witness, but the objection to’his competency must be taken before he is sworn. After he has testified, his disbelief may be shown, to affect his credibility.

Error from the Oneida general sessions. The defendant was indicted for petit larceny for stealing a whip of the value of two dollars, the property of one Stephen Northrop. The defendant was a merchant in Utica, and Northrop came to his store to purchase cloth. After spending some time in looking at cloths, he went off without making a purchase, leaving his whip in the store. The defendant concealed it. Within a few minutes Northrop returned and inquired for it, and was told by the defendant he had not seen

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it. Northrop returned repeatedly in the course of the day, and always received the same answer. One Decker, who was a clerk of the defendant, testified that when Northrop first left the’ store the defendant expressed his dissatisfaction that he had not made a purchase, but observed he has left his whip and I will keep it, and accordingly put it away; that previous to Northrop calling the last time, the defendant had ascertained that he had purchased the cloth he wanted elsewhere, and then told him if he had purchased of him he would not have lost his whip. Two other.clerks testified that after Northrop called the last time, the defendant directed the whip to be delivered to him on his calling again; and even Decker, in a part of his testimony, stated that the defendant said he intended to return the whip. After the public prosecutor rested, the defendant offered to prove that Decker [461] did not believe in a Supreme Being, who will punish false swearing; which proof was offered for the purpose of having the testimony of Decker struck out and excluded .from the consideration of the jury. The court decided that the evidence was inadmissible for that purpose; that the objection to the competency of the witness should have been made before he was sworn, but that the evidence might be given to impeach his credibility. A witness was then sworn and testified on the subject, and the character of Decker for truth was also impeached. . The court charged the jury that the whip, though left in the defendant’s store, was not so in the defendant’s possession as not to be the subject of larceny by him, but was, in contemplation of law, in the possession of the owner and not lost, and that a larceny of it could be committed by the defendant or any one else; and if they believed that the defendant took the whip from the place where it was laid by the owner, with the intention of appropriating it to his own use and defrauding the owner, they should find the defendant guilty. The jury found a verdict of guilty, and the defendant was sentenced to pay a fine of $75. The defendant having excepted to the decisions of the court and the charge to the jury, sued out a writ of error.

W. C. Noyes, for the defendant.

J. C. Baker (district attorney of Oneida), for the people.

By the Court,

Had the objection to the competency of Decker been made before he was sworn, he would have been rejected (2 R. S. 408, § 87). But it was not taken until after he had been sworn and given his evidence. If it was not then too late to entertain the question, it was addressed to the discretion of the court, and upon the facts disclosed in the bill of exceptions, it is impossible to say that there was error in refusing to strike out the testimony.

Whether the defendant took the whip animo furandi, or whether he took it at all, were questions of .fact for the jury, and their verdict can not [462] be reviewed on a bill of exceptions. Was the case properly submitted to the jury by the court? This is the only question for our consideration. It is insisted that the whip was in the possession of the defendant by finding, and could not be the subject of larceny by him. In The People v. Anderson (14 Johns. R. 294), the defendant was the bona fide finder of a trunk which had been lost from a stage coach in the highway; and it was held that no subsequent act, in concealing or appropriating the trunk to his ,own use, would make it a case of larceny. The decision proceeded on the ground that the property was lost by the owner/ so that it no longer remained, either actually or constructively in his possession, and that it after-wards came lawfully to the hands of the defendant by finding. But in this case the whip was not lost. It remained where the owner had placed it, until it was taken up and concealed by the defendant. When Northrop left the store his mind was upon another matter, and the whip was forgotten for the moment; but he knew whesre he had placed it. and it was not lost to him

p. 261

until it was removed and converted by the defendant. In the case of Anderson, the property was dropped in the highway without the knowledge of the owner, and stress was laid on the fact that the defendant was the bona fide finder. But here, the defendant knew that the property was not lost, and it- is impossible for him to maintain that it came to his possession in good faith by finding. Many of the cases on this subject are collected in 2 Russell on Crimes (100, 103). He says, the doctrine of taking by finding must be admitted with great limitation, and must be understood to apply only where the finder really believes the goods to have been lost by the owner, and does not color a felonious taking under such a pretence. He cites two manuscript cases, the one before Lawrence, J. and the other before Gibbs, J. In the first, it appeared that the defendant found a pocket-book containing bank notes in the highway, and afterwards converted the property to his own use. The judge, held, 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 the property, converts it to his own use, such conversion will constitute a felonious taking. [463] In the case before Gibbs, J., two defendants were convicted of stealing a bill of exchange, upon evidence of their having found and converted it to their own use. The judge told 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. In The State v. Weston, et al (9 Conn. R. 527), the defendants found a pocket-book in the highway containing bank bills, and converted the property to their own use. The name of the owner was legibly' written in the pocket-book, and it was proved that the defendants could read. They were convicted of larceny, and a motion for a new trial was denied. Peters, J., who delivered the opinion of the court, said it was well settled that the finder of personal property on the highway, knowing, or having the means of knowing the owner, and not restoring it to him, but converting it to his own use, is a thief, and ought to be punished accordingly. The contrary' doctrine was laid down by the supreme court of Tennessee, in Porter v. The State, Martin & Yerger, 226. In The People v. Anderson, it did not appear that the defendant knew, or had the means of knowing who was the owner of the property. Where that fact appears, the weight of authority seems to be that the finder of the property will be guilty of larceny, if he conceal and convert it to his own use. But it is unnecessary to pass upon that question in this case. The defendant was not, in any proper sense of the terms, the finder of lost property.

The fact that Northrop went out of the store and was absent some fifteen minutes before he returned to take the property, did not change the possession. In judgment of law, the gossession still remained in him. There was no error in the charge to the jury, and the judgment must be affirmed.

Judgment affirmed