#### *The State vs. James Ferguson.*

Where the prisoner found a sum of money on the highway, which he soon after converted to his own use, with various circumstances of fraud and concealment, — it was held, “ That if the prisoner, at the time of finding the pocket book, and before he removed the money, knew it to be the property of the prosecutor,” the conversion under tírese circumstances would be larceny.

*Tried before*Earle, J. *at*Chester, *Fall Term,*1837, Who reports the facts as follows:

The prosecutor, James W. Key, on the 1st of Dec. 1836, lost, on the highway leading by the prisoner’s house, his pocket book, containing about six hundred dollars in bank bills. Searching for it the next day, he met the prisoner, and informed him he had lost his pocket book with some little money in it. On the-first Monday of Dec. a few days after the loss, it was ascertained that prisoner had a large sum of money, and being searched, it was found he had, including the amount,passed off during the day, three hundred and thirty-two dollars, which was given up. Of that amount a 50 dollar and a 10 dollar bill were positively identified by the prosecutor, as part of. the money he had lost. Before the Justice on his examination, which was regularly reduced to writing, the prisoner said, that the Friday before, he went out into the road near his house, and found a sum of money, rolled up in brown paper, and tied with a string ; that he did not know how much there was ; that he had kept it until that day; that he had spent a considerable part to different persons in the village, and that was the balance which was found on him. When the money was first found on him, and claimed as Key’s, prisoner said, “No, it is money 1 have been laying up for years.” When asked if he had not passed a $50 bill to McKee, he replied, no, I have not. Being taken to McKee’s, the bill was delivered up which he had passed, and which the prosecutor identified asoné of his. On the way to McKee’s the prisoner took Key on one side, and said, I want to make it up with you. Key said, I want my money. Prisoner asked, how much do you lack'? and added he did not like to be carried into the store before all the people. The inducement which was supposed, to make any statement of the prisoner inadmissible, was this ; after they left McKee’s store, and before he was carried to the Justice’s, John A. Bradley said to the prisoner, it was his opinion that Key would show him all the *503indulgence in his power, if he would come out, and say where the rest of the money was. What the prisoner said to Mi. Bradley then, was excluded. But I did not consider so slight a circumstance enough to exclude his statement before the Justice, on his examination officially taken, that he had found the money. He did not disclose where the balance was. The prisoner’s house is the only one between the residence of the prosecutor, Key, and that' of his father, where he went the evening he lost the pocket book, and where he missed it. The name of the prosecutor was written in the pocket book. There was no room to doubt that the prisoner found the prosecutor’s money, and the only defence seriously urged was that larceny could not be committed of money found on the highway. If I had charged the jury as stated in the 3d ground, that they must find a fact which was physically impossible, else they must acquit the prisoner, it would have been morally impossible for them to find him guilty. I in- ’ structed the jury, if the prisoner, at the time of finding the pocket book, and before he removed the money, *i. e.*before he himself removed, carrying it with him, knew it to be the property of the prosecutor; or not knowing it to be the property of the prosecutor, if at the time of removing the money he did it with the intention to convert it to his own use, it Was larceny.

The jury found the prisoner guilty.

*Grounds of Appeal.*— In *arrest of*judgment,

Because the indictment does not charge that the prisoner, at the time of finding the money on the highway, then knew the same to be the property of J. W. Key, the prosecutor.

*And for a nexo*trial,

1. Because larceny cannot be committed by a finder, in taking up bank bills found on the highway.

*2.*Because the confessions of the prisoner, made after promises of favour made to him by John A. Bradley and others, were admitted in evidence. See Bradley and Gooche’s testimony, which show the promises were made before the confessions proven by Key and Wood.

3. Because there is error in the finding of the jury, as the court charged the jury, that they must find that the prisoner, at the very instant he took up the money on the high road, knew the same to be the property of the prosecutor, or they must ac*504quit the prisoner, — which knowledge, from the evidence, was physically impossible.

4. Because the verdict is not only without but against the evidence, the law, and the charge of the court.

*Curia, per*

Earle, J.

The prisoner found a sum of money on the highway, which he soon after converted to his own use, with various circumstances of falsehood and concealment. On his trial for larceny, the Judge instructed the jury “ if the prisoner, at the time of finding the pocket book, and before he removed the money, knew it to be the property of the prosecutor ; or not knowing it to be the property of the prosecutor, if, at the time of removing the money, he did it with the intent to convert *it to*his own use, it was larceny.” It is on the latter paragraph of this instruction, that the doubt of the court arises. Of the correctness of the first part of the instruction, no question exists in the mind of the court. And if the same verdict had been found on that alone, the court might have been entirely satisfied with it. On the other branch of the instruction, the court is divided ; on that point no opinion is expressed. But as it is possible the verdict may have been influenced, in some degree, by that instruction, the court is unwilling that the defendant should suffer on a verdict, when the law is at all doubtful.

A new trial is therefore ordered, without prejudice.

Gawtt, Richardsow, O’Neall and Butler, JJ. concurred.