
    
      State v. Davis.
    
    The defendant was indicted under the act of 1779, Cap. , “ to prevent the stealing of slaves, &c.” The indictment charged the negro stolen to be the property of John Murrell, dec. Upon the trial in Northampton Superior Court, the jury found a special verdict, the material statements in which were, that on or about the 15th December, 1814, the negro Luke, the property of John Murrell, was in his possession in the County of Northampton; soon after which the negro ran away from him, and whilst he was so runaway, the defendant knowing the fact, and that the slave was the property of Murrell, feloniously did steal, &c. and afterwards did sell him for his own benefit. The case was referred to the decision of this Court, whether, upon the whole matter, judgment could be awarded under the act of Assembly.
    
      Daniel, for the prisoner,
    cited 1 Hale 506-1 Hawk. C. 33, §1.
   Taylor, C. J.

delivered the opinion of the Court.

The two questions to be decided are, whether the facts found amount to felony in point of law—and if they do, whether they are set forth in the indictment in a sufficient manner to warrant the Court in pronouncing judgment against the prisoner?

1. The finding of the jury fixes upon the prisoner all the essential circumstances to constitute a felony, and excepts this case from the operation of the principle relied upon in his behalf. It not only comes within the reason of the exception to the general rule but is one of the very cases put in the books, to illustrate the rule and define its extent. The prisoner knew that the slave was run away, and that he belonged to Murrell, and, with this knowledge, took him into his possession, and, in less than a month afterwards, sold him. We lay no stress upon the jury having found that the taking was felonious, for we understand that the law is to be found upon the whole case, and that it is to be decided whether the jury have correctly drawn that inference.

The reason why felony cannot be committed in taking treasure trove waifs, or estray is, that the owner is unknown; the first, becoming the property of the finder, if no owner appears; no property in the second vesting before seisure, nor in estrays until the expiration of the year from the time of appraisement—and in these, it is always understood, that the owner is unknown to the person who takes them up. The rule applies, also, to finding a purse in the highway, which a person takes and carries away,—it is no felony, although the usual proofs of a felonious intent follow the act. “ If one lose his goods and another find them, though he convert them animo. furandi to his own use, yet it is no larceny, for the first taking is lawful.”-3 Inst. 107. But, in all these cases, the person taking the property must really believe it to be lost, for if he do not, and take it with the intent to steal, he will not be excused by the pretext of finding, otherwise every felony would be so excused. This is expressly laid down in Hale and other writers. If a man’s horse, is grazing at large on his neighbor’s ground, and it be taken with a felonious intent, the crime is complete. In shorty this principle will be found to pervade all these cases, and ascertains every taking to be a felony, if the intent be such, provided there was no reasonable cause for believing that the thing was lost.

2. But judgment cannot be pronounced on this indictment, because it lays the negro as the property of John Murrell, dec. The indictment speaks in the imperfect tense, and relates to the 6th January, 1814, confining the stealing to that period. To whom did the property then belong, which was thus stolen? The indictment answers, to John Murrell, deceased. This is the only way in which the charge itself can be understood, without interposing an advent of time present, between the name and “ deceased.” We learn, indeed, from the special verdict, that Murrell did not die till the March following; but if the indictment be not legal and certain, in itself, it cannot be aided by the finding of the jury. And that it is defective, in this particular, seems almost too plain to require argument or authority. If the owner of goods be really unknown, it may be so stated in the indictment; but if it be proved on the trial, who the owner is no conviction can ensue, upon such a charge. If the goods which belonged to a deceased person are stolen, they must be laid as the property of the executors or administrators, for on them the law casts the title. Judgment arrested.  