
    Reece Porter vs. The State.
    If the finder of bank notes, convert them to his own use, with a full knowledge 0f the owner> ft jg not larceny, there being no trespass committed in obtaining the possession — it is a civil injury only.
    The defendant was indicted in the circuit court of Fayette county, for larceny. The cause was removed for trial, by change of venue, to Hardeman county, in which county a trial was had.
    The prosecutor had lost his pocket book, on the Memphis road; which was found by the defendant, who attempted to pass two of the bank notes, described .in the indictment, and which were in the pocket book, with full knowledge of the owner.
    The circuit court charged the jury, “that if they believed, from the evidence detailed to them in the cause, that the prisoner, after finding the pocket book and its contents, corruptly, feloniously and fraudulently converted the bank notes to his own use, knowing at the time of such conversion, the true owner of them, and with a view to deprive him of them, that it would be a felonious conversion, and they would be authorized to find the prisoner guilty.” This opinion was excepted to; and the jury having found the prisoner guilty, an appeal in error was prosecuted to this court.
    
      Miller and Hunter for the plaintiffin error.
    
      Hugh W. Dunlap (attorney general) for the state.
   Whyte, J.

To complete the crime of larceny, there must be a trespass in the original taking; finding the pocket book and its contents, and taking them into possession, was not a trespass; and subsequently converting the contents to the use of the finder, with a knowledge of the owner, although a breach of good faith and honesty, is not sufficient to constitute the offence of larceny.

The common law, as it stood in 1775, was adopted in this state. What that common law was in this case, may be seen by reference to 1 Haywood’s Rep. 157, in note, and the case of the State vs. Braden, (2 Tenn. Rep. 68.)

Two cases, recently determined in England, the one in 1804, the other in 1812, cited in Russell on Crimes 1044, and relied on in this case, make the finding and converting money or notes, in a case like the present, larceny. But it it is observable, that in the first of these cases, it was held to be larceny, because converted with a knowledge of the owner; in the second case, for an attempt to convert, with such knowledge.

These cases go beyond all former precedent. In 2 Leach Crown Cases, 835, Chitty Cr. Law 918, 1 Hawkins P. C. ch. 31, sec. 1, 2, the correct rule is laid down, to wit, that there must be a trespass completed at the time of taking, to constitute it larceny.

The act committed in this case, is a civil injury, for which an action would lie, but is not a crime.

Peck and Catron, judges, concurred; absentjudge Crabb.

Judgment reversed. 
      
       Vide People vs. Anderson, 14 John. Rep. 294.
     