#### The State *v.*Solomon Roper.

Where a shawl was droped in an exhibition room, and picked up by the defendant, placed in a conspicuous situation and afterwards appro' printed to llis own use; it was held that he was not guilty of larceny. San larceny be committed of goods that are lgst ? Q.tr.

The défendant was indicted for petit larceny in stealing a shawl. Upon the trial before SwaiN Judge, 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, formed by 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 4i *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 tliat the defendant had it, and that then, for the first time, she ascertained that it was lost.

For the defendant it was insisted, 1st. That the shawl, being lost, and the owner unknown, it was not the subject of larceny.

2d. 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 injten.t'Having *474entered his mind at the instant he discovered the shawl. That if at th,e time he took the shawl from the chain, ho 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 thc chain, the owner was within the ring, and within the sound of his, the defendant’s, voice, although she was unknown to him, if lie took it with an intent to appropriate it to bis own use, he was guilty of larceny. The defendant ivas convicted and appealed.

*Gaslon*for the defendant.

The *Attorney General, contra.*

Daniel, Judge.

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. c.*16 *s.*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. c.*33 *s.*1. 1 *Russell*95.) It is a general maxim, that the ownership of goods draws after it the possession. But if the owner or person whose property is alleged to be stolen, he 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 was *bona fide,*and not under a mere pretence of finding, and the finder afterwards, fe-loniously 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 *475a felonious intent, would be evidence to be left to the jury, from which they might infer, that the original taking was with a felonious intent. *(East. P. C.*664, *Lear’s case,*215, *n.*1 *Hale*506. 2 Ib. 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 by-stander 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, ivas ignorant of the owner ; he continued thus ignorant until some time after he left the ring. The circumstance 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 aivay 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 ¡dace, (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.

Hebderson, Chief-Justice

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, *476done *clam et*secrete,but *openly*and *publicly.*The fraudulent and secret conversion of it afterwards to the defendant’s use, could not impress a larcenous character on the original taking *;*at most it would only be evidence 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 no *after-thought,*or after-act can .convert it into a felony. For my own part, thinking that there must be an *unlawful*taking from the possession of the owner, to constitute a larceny, Í am of opinion, that lost goods are not the object of Jarceny. Some of my reasons, given in a much more forcible manner than I can give them, are to be found in Judge *Spencer’s*opinion, in the case of the *People*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 in *losing*his property, and therefore does not protect it, when lost, by *high*penal 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 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 an *477
      *abandonment*of 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 Jaw, 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 tiien 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 tlieJaw can draw the inference. The *quo animo*with which the defendant placed thesliawi 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 ail 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 of intent applicable to all cases, and each case must be left tobe decided according to its own particular and minute circumstances, that is, according to the *actual*intent in each particular case. I am of opinion therefore, that the defendant is entitled to a new tidal, because the intention with which be 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 chair;— 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 bad been an *abandonment*of 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 abandoment by hanging it on the chain, if it was an abandonment, restore the possession to the owner, *toitliout her knowledge?*— and did it merely cease to be lost property ? — or did it only restore it to its *siiualioii*when it was first discovered on the ground ?

*478These are questions I leave to future discussion, if the occasion should require it, for as I said before *I*am not prepared to decide them.

Per Curiam — Judgment reversed»