#### John Tyler, Plaintiff in Error, v. The People, Defendant in Error.

ERROR TO JEFFERSON.

Larceny can not be committed of goods and chattels found in the highway, where there are no marks by which the owner can be ascertained; one ingredient of larceny is wanted in such case, to wit: a felonious taking.

Opinion of the Court by

Justice Browne.

This was an indictment against John Tyler, for a supposed larceny. He was tried and a verdict of guilty found against him in the court below, upon which judgment was rendered; to reverse which, he has brought this writ of error.

The whole of the evidence establishes clearly that the article of property for which he is charged with stealing, was found in the highway, and was a pair of saddle-bags. It was further proven, that there were no marks by which the owner could be ascertained.

The question then is, can an individual commit larceny at all, where the property is found on the highway, and no marks or brands by which the owner could be distinguished.

Larceny is defined by the books to be “ the felonious taking, and carrying away of the personal goods of another.” The original taking then, in this case, can not by any possible construction that can be given to it, be construed to be with a felonious intent.

*294 Gatewood, for plaintiff in error.

Eddy, state’s attorney, for defendant in error.

The court is therefore of opinion that the judgment of the court below be reversed, and the prisoner set at liberty, (a) , (1)

Judgment reversed.

(a)

A bona fide finder of an article lost, as a trunk containing goods, lost from a stage coach, and found on the highway, is not guilty of larceny by any subsequent act in secreting, or appropriating to his own use the article found. The People v. Anderson, 14 Johns., 294.

To constitute larceny, the possession of the goods must have been acquired animo furandi in the first instance; an intention afterwards formed, of converting them to the party’s own use, is not felonious. Ib.

If a man lose goods, and another find them, and not knowing the owner, convert them to his own use, this is no larceny, even although he deny the finding of them or secrete them. Archbold’s Crim. Pl., 119.

Where the defendant saved some of the prosecutor’s goods from a fire which happened in his house, and took them home to her own lodgings, but the next morning she concealed them and denied having them in her possession, the jury finding that she took them originally from a desire of saving them from the fire, and that she had no evil intention until afterwards, the judges held, it was a mere breach of trust, and not felony. Rex v. Leigh, 2 East. P. C., 694.

(1)

If a person find an article of personal property in the highway, and converts the same to his own use, not knowing the owner, he is not guilty of larceny. It is otherwise if he knows the owner when he acquires the possession, or has the means of identifying him instanter, by marks he understands. Lane v. The People, 5 Gilm., 305.

If the owner of goods, alleged to have been stolen, voluntarily parts with the possession and title, then neither the taking or conversion is felonious. But if he parts with the possession, expecting that the identical thing will be returned, or that it shall be disposed of on his account, or in a particular way, then the thing may be feloniously converted, and the bailee be guilty of a larceny. Welch v. The People, 17 Ill., 339.

Where a bill is put into the hands of a person to procure change, and he appropriates it, it is larceny. Farrell v. The People, 16 Ill., 506.