#### STATE v. SAMUEL P. ENGLAND.

Where the prosecutor lost a carpet bag on the public highway, and directed ■one to get it for him, and he did so as Ms bailee, but concealed the article, and denied having found it, it was held that this was but a breach of bailment, and not larceny.

This was an indictment for raeoeny, in stealing a shirt, tried before Osbobne, J., at the last Pall Term of McDowell Superior Court.

The jury found the following facts as a special Verdict, viz -: u The defendant is indicted for stealing a shirt; the article alleged to have been stolen, was, with other articles, in a carpet bag, which was lost by the prosecutor on the highway, leading from Morgantón to Marion; the defendant resided on the highway-, and the prosecutor in passing his residence, inform*400ed the defendant that, between his house and that of one William Murphy, who lived on the same road, about a mile and a half from the defendant’s, he had lost his carpet bag, and requested him to get it, and give it to one Halliburton, who lived in the village of Marion ; the defendant found the carpet bag and took it into possession, and on application to him for it, stated that he did not have it, and had not found it; on search being made, it was found concealed in a bag, which was tied up and secreted on his premises ; some of the articles contained in the carpet bag were missing, but whether they were taken out by the defendant, did not appear.”

His Honor being of opinion on the special verdict, that the defendant was not guilty of larcejf, gave judgment that he be discharged, from which the solicitor, for the State, appealed.

Attorney General, for the State.

Gaither, for the defendant.

Battle, J.

It is conceded, and, as we think, properly, by the Attorney General, upon the facts found by the special verdict, the defendant is not guilty of stealing the shirt of the prosecutor, as charged in the bill of indictment. The taking of the carpet bag, in which the shirt and other articles were contained, was not a trespass, because it was done by the express directions of the owner, and the defendant, instead of being a trespasser, by such taking, became a bailee of the article, for the purpose of carrying and delivering it to a certain person in the village of Marion. The subsequent concealment of the carpet bag before the trust created by the bailment, was performed, even if done animo fwcmdi, was not a larceny, but only a breach of trust. This doctrine has been established by many decisions, of which a collection may be found in Roscoe’s Criminal Evidence, beginning at page 596, (3 Am. from 3 Lon. Ed.)

We have assumed that the carpet bag was taken by the defendant, under a bailment, because the special verdict finds *401such to have been the fact, and no intendment can be raised, that the defendant formed the design, before he found the article, to take and appropriate it to his own use. Whether the testimony would have justified the jury in taking the latter view, and finding according^, and if so, what would hhve been the legal consequence of it, is not our province to decide.

The terms of the special verdict preclude another view of the case, which might have been adverse to the defendant: It seems that the carpet bag, when found concealed on the defendant’s' premises, had been rifled, and a part of its contents taken out'and carried away ; .but whether the shirt was one of the missing articles, is not stated ; though it is stated, as a part of the verdict, that it did not appear that the missing articles were taken by the defendant. Ilad the jury found that they were taken, animo furandi, by him, it might have been contended that he was guilty of larceny, upon the distinction thus stated by Lord Hale: “ If a man deliver goods

to a carrier, to carry to Dover, and he carry them away, it is no felony; but if the carrier have abale or a trunk with goods in it, delivered to him, and he break the bale or trunk and carry the goods away, animo fwrandi^ it is a felonious taking ;” see 1 Hale’s P. C. 504, 505, Eos. Grim. Ev. 598. The grounds upon which this distinction is based, and many of the cases given in illustration of it, may be found cited and commented upon in the latter work, but it is unnecessary for us to pursue the enquiry here, for the reason already stated, that the terms of the special verdict prevent the question from being presented.

There is no error in the judgment, from which the appeal is taken, and it must be so certified to the Superior Court,

Per Curiam,

Judgment affirmed.