
    Brooks v. The State.
    1. On a charge of larceny it is not necessary to the conviction of the accused that he should, at the time of taking the property, have known, or have had reason to believe he knew, the particular person who owned it, or that he should have had the means of identifying him insianter.
    
    2. Lost property which has not been abandoned by the owner, is the subject of larceny by the finder.
    3. The finder is not hound to make search for the owner. His belief, or grounds of belief, in regard to finding the owner, is not to be determined by the degree of diligence that he may be able to use to accomplish that purpose; but by the circumstances apparent to him at the time of finding the property.
    4. Where, at the time of finding the property, he has reasonable ground to , believe, from the nature of the property, or the circumstances under which it is found, that, if he does not conceal but deals honestly with it, the owner will appear or be ascertained, he will be guilty of larceny, if at the time of taking the property into his possession, he intends to steal it.
    Error to the Court of ^Common Pleas of Trumbull ■county.
    The plaintiff in error, George Brooks, at the February term, 1879, of the Court of Common Pleas of Trumbull ■county, was convicted of larceny in stealing $200 in bank bills, tbe property of Charles B. Newton. It appears from the evidence, that Newton resided at Newton Falls, in the ■county of Trumbull, and that, on the 24th of October, 1878, he came to the city of "Warren in a buggy to attend to some business. He fastened his horse to a hitching post on Market street. On his way home, in the forenoon of the same day, he discovered that he had lost the package of bank bills in question. He made search for it in various places where he had been, but failed to find it. He looked where he hitched his horse on Market street, but he states that he did not look there very carefully, as there was a team of horses hitched there at the time. Notice of the loss was published in the two newspapers printed in Warren, and in one printed in Leavittsburgh, which also had a circulation in Warren.
    On Wednesday, the 20th of November following, the defendant, who resided in Warren, while working on Market street, near the post at which Newton hitched his horse, found the roll or package of bank bills. The package was found “ five or six feet from the hitching post.” He was, at the time, working in company with several other laborers. At the time he found the money one of these laborers was within ten feet and another within twenty feet of him, but he did not let any of them know that he had found the money. He states, in his testimony, that he put it in his pocket as soon as he found it. Just after finding the package, he picked up a one dollar bill, which he did show to them. This bill was wet and muddy, and he sold it to one of them for twenty-five cents, saying if none of them' bought it he' would keep it himself. He testifies the reason he sold it was that he did not want them to know at the time that he had found the other money. This bill was shown to several persons at the time, and was put on the hitching post to dry. Within a half hour after finding the money, at the time of stopping for dinner, he quit work, and, at his request, was paid off. He spent part of the money, the same day, for a pair of boots, and for other purposes, and let a Mrs. Lease have fifty dollars of it the same day, with which to purchase furniture for his wife, •and for other purposes. Mrs. Lease saw him have the money at his house the afternoon of the same day. At the time of receiving the money she told him that she did not want to take the money if it was stolen or was counterfeit. He told her he received it from an uncle, and, a' another time, on being asked by her about it, said, “ what if I found it?”
    Evidence was also given that the defendant, with his wife, shortly afterward left Warren, and that he attempted to secrete himself before he left. The evidence did not .show that the defendant saw any of the notices of the loss of the money published in the newspapers, or that he had any notice of the loss by Newton at the time it was found. Much other evidence was given, but the foregoing is sufficient to show the character of the legal questions raised.
    The evidence being closed, the defendant’s counsel asked the court to instruct the jury as follows : “ To render the finder of lost property guilty of larceny, he must know who the owner is at the time he acquires possession, or have the means of identifying him instanter, or have reason to believe that he knows who the owner is.” This instruction was refused.
    The defendant’s counsel also, among other things, asked the court to instruct the jury as follows : “ That it is not enough to render the finder of lost property guilty of larceny, that he has the general means of discovering the owner by honest diligence. In order to convict the finder of lost property of larceny, the jury must be satisfied that the taking of the property was with a felonious intent. It is not sufficient that, after finding .The money, it was converted to the owner’s use with a felonious intent.” This instruction was refused in the form asked; but, in the general charge, the court instructed the jury on the subject as follows: “ But though the money was actually lost, and the defendant found it, and at the time of finding supposed it to be lost, and appropriated it with intent to take entire dominion over it, yet really believing that the owner could not be found, that was not larceny and he can not be convicted. The intent to steal must have existed at the time of the taking. . . . It is not enough that he had the general means of discovering the owner by honest diligence. He was not bound to inquire on the streets or at the printing offices for the owner, though if at the time of the taking he knew he had reasonable means of ascertaining that fact, that might be taken as showing a belief that the owner of the money could be found. In order to convict, it must be shown that the taking of the property was. with felonious intent, that is with intent to steal, under the definition I have given you; and it is not sufficient that afterward, after finding the money, it was converted to his-own use with felonious intent. The intent must have existed at the time of the finding.”
    To the refusal to charge as asked exceptions were taken..
    
      L. F. Hunter, for plaintiff in error.
    
      Isaiah Pillars, attorney-general, for the state.
   "White, J.

We find no ground in the record for reversing the judgment.

The first instruction asked was properly refused. It was-not necessary to the conviction of the accused that he-should, at the time of taking possession of the property, have known, or have had reason to believe he knew, the particular person who owned it, or have had the means of identifying him instanter. The charge asked was liable to this construction, and there was no error in its refusal.

The second instruction asked was substantially given in the general charge.

Larcen} may be committed of property that is casually lost as well as of that which is not. The title to the property, and its constructive possession, still remains in the owner; and the finder, if he takes possession of it for his own use, and not for the benefit of the owner, would be-guilty of trespass, unless tlie circumstances were such as to-show that it had been abandoned by the owner.

The question is, under what circumstances does such property become the subject of larceny by the finder ?

In Baker v. The State, 29 Ohio St. 184, the rule stated by Baron Park, in Thurborn’s case, was adopted. It was there laid down, that “ when a person finds goods that have actually been lost, and takes possession with intent to appropriate them to his own use, really believing, at the time, or having good ground to believe, that the owner can •be found,- it is larceny.”

It must not be understood from the rule, as thus stated, that the finder is bound to use diligence or to take pains in making search for the owner. His belief, or grounds of belief, in regard to finding the owner, is not to be determined by the degree of diligence that he might be able to use to ¡accomplish that purpose, but by the circumstances apparent to him at the time of finding the property. If the property has not been abandoned by the owner, it is the subject of larceny by the finder, when, at the time he finds it, he has reasonable ground to believe, from the nature of the property, or the circumstances under which it is found, that if he does not conceal but deals honestly with it, the owner will appear or be ascertained. But before the finder can be guilty of larceny, the intent to steal the property must have existed at the time he took it into his possession.

There are cases in conflict with the foregoing view; but we believe it correct in principle, and well supported by authority. The Queen v. Glyde, 1 L. R. (C. C.) 139; Moore's case, Leigh & Cave’s C. C. 1; Regina v. Knight, 12 Cox, 102; Commonwealth v. Titus, 116 Mass. 43; Ransom v. The State, 22 Conn. 153; 2 Russ. Crimes, 9 Am. ed. (4 Eng.) 179, 180, and note there found to Thurborn’s case.

The case was fairly submitted to the jury ; and from an examination of the evidence, we find no ground for interfering with the action of the court below in refusing a new trial.

Judgment affirmed^.

Okey, J.

I do not think the plaintiff was properly convicted. A scavenger, while in the performance of his duties in cleaning the streets, picked up from the mud and water in the gutter, a roll of money, consisting of bank bills of the denominations of five, ten, and twenty dollars, and amounting, in the aggregate, to two hundred dollars. It had lain there several weeks, and the owner had ceased to make search for it. The evidence fails to show that the plaintiff had any information of a loss previous to the finding, and in his testimony he denied such notice. There was no max'k on the money to indicate the owner, nor was there any thing in the attending circumstances pointing to ■one owner more than another. He put the money in his pocket, without calling the attention of his fellow-workmen to the discovery, and afterward, on the same day, commenced applying it to his own use.

No doubt the plaintiff was morally bound to take steps to find the owner. An honest man would not thus appropriate money, before he had made the finding public, and endeavored to find the owner. But in violating the moral obligation, I do not think the plaintiff' incurred ■criminal liability.

Baker’s case, 29 Ohio St. 184, was correctly decided. It is stated in the opinion, not only that when he took the goods he intended to appropriate them to his own use, hut that he had reasonable ground for believing that Alden was the owner. A passage from Regina v. Thurborn, 1 Den. C. C. 387, is cited in that case as containing a correct statement of the law. But a careful examination of Regina v. Thurborn will show that the court which rendered the decision would not have sustained this conviction; aud that case has been repeatedly followed in England and this country. R. v. Preston, 2 Den. C. C. 351; R. v. West, 6 Cox, 415 ; R. v. Dixon, 7 Cox, 35; R. v. Christopher, 5 Jurist, N. S., 24; R. v. Glyde, 11 Cox, 103; R. v. Knight, 12 Cox, 102; Tanner v. Com. 14 Grat. 635 ; People v. Cogdell, 1 Hill (N. Y.), 94; Lane v. The People, 5 Gilman, 305; The State v. Conway, 18 Mo. 321; 2 Lead. Or. Cas. 31; Bailey v. State, 52 Ind. 462.

The obligation, stated in the syllabus, that the finder must deal “ honestly ” with the money, is too indefinite; and the opinion contains no satisfactory explanation of it. This leaves both law and fact to the jury, without any rule to guide them. "What one jury might think was honest •dealing, another jury might think was the reverse. The ■adverb properly or rightfully would have been as certain.

Gilmore, C. J., concurs in the dissenting opinion.  