
    Lawrence vs. The State.
    Lost property cannot be the subject of larceny. Porter vs. The State, M- and Y. 226.
    Muirhead placed-his pocket-book upon the table of a barber’s shop, there to yemain till he could get a bank bill changed, and on leaving the shop he forgot to take hispocket-book, but upon missing it he immediately recollected that he hadleftitatthebarber’sshop: Held, that this pocket-book, at the time it was so left, was not “lost properly” in the sense used in the law books, and was thfc subject of larceny.
    At the June term, 1839, of the circuit court of Wilson county, the grand jury of the county indicted John Lawrence, a free man of color, for stealing bank notes of the yalue of four hundred and eighty dollars, the property of John Muirhead. He pleaded not guilty, and the cause was submitted to a jury, his honor É. A. Keeble, special judge, presiding, when it appeared in proof that the prosecutor, Muirhead, on the 12th March, 1839, walked into the shop of Lawrence, a barber in the town of Lebanon, and having had' his ^air trimmed, took out his pocket-book, and handing a bank bill to the barber, out of which to take his compensation, he placed it on the table. The barber left the shop to get the bill changed, and a fight occurring in the streets, the prosecutor’s attention Was arrested thereat and he left the shop, his pocket-book lying on the table. The prosecutor did not miss the pocket-book till he was undressing for bed, when he immediately recollected that he had left it at the. barber’s shop. He returned to the shop, the pocket-book was gone, and search being instituted it could not be found-
    Lawrence brought the money to Nashville and expended it in the purchase of confections, &c. On being arrested, he gafe contradictory accounts as to the source from which he procured thé money. The money was fully identified.
    Under the charge of his honor, which is set forth in the opinion of the court, the jury found Lawrence guilty of grand larceny, and fixed his term of imprisonment in the jail dnd peñitéiitiary house of the State at eight years, and also returned a verdict against him for the sum of four hundred and eighty-four dollars, the value of property stolen and appropriated, and interest thereupon.
    The defendant moved the court to set aside this verdict, but the motion was overruled, and judgment rendered that he should be confined in the jail and penitentiary house of the State for the term of eight years from the date of the judgment; that he be rendered infamous and incapable of being examined as a witness, and that he be disqualified from holding any office of profit or honor in the State; and that John Muirhead recover of him the sum of four hundred and eighty-four dollars.
    From this judgment of the court defendant prayed and obtained an appeal in the nature of a writ of error to this court.
    
      R. M. Burton, for plaintiff in error.
    In order to constitute a larceny there must have been committed a trespass by the defendant in the taking and carrying away the property of the prosecutor; and to sustain this position he cited Porter vs. The State, M- and Y. 226: 1 Hay. 157, note: State vs. Braden, 2 Tenn. 68: State vs. Wright, 5 Yer. 154: Felter vs. The State, 9 Yer. There can be no trespass without a violation of the possession of the owner at the time of the taking. 1 Haw. 135, note. “There must be an actual severance of the thing from the possession of the owner.” 2 Bast’s P. C. 554. In this act of taking there was no severance of the pocket-book from the possession of the prosecutor. It was not in his personal possession, nor in his house, nor in the hands of his agent. It was not in his custody or control, and the testimony proves that he did not know where it was. It was left in the shop of defendant, yet not entrusted to his care, nor left there for safe custody, and not with the knowledge of the prosecutor. This was a case of actual loss.
    There is no possession violated, no trespass committed, no larceny perpetrated in the seizure and conversion of lost property. 14 Johnson: 3 Inst. 102, 103: Haw. 134, sec. 3. The reason given by Hawkins for this is sound, to wit, “because the party is not much aggrieved where nothing is taken but what he had lost before.” If the act of taking lost property be regarded with an eye to the guilt of the taker it is less than the guilt involved in a larceny, for it requires a greater degree of daring turpitude to seize and carry away property from lawful custody than merely to take possession of that which-is in the custody of no one. If it be regarded with an eye to the owner of lost property, it is still not the policy of the law to aid negligence and protect indiscretion, Paley’s Phil. Ch. on Crimes.
    
      Attorney General, for the State,
    cited Mite vs .-The State, 9 Yer. 206, and contended that the pocket-book and money therein contained were within the control of the prosecutor at any moment when his mind should recur to them, if they had been left where he intentionally placed them, and that they were, consequently, at the time of the seizure of them, within the constructive possession of the prosecutor, and the, subject of larceny.
   Reese, J.

delivered the opinion of the court.

This is an indictment for grand larceny. The plaintiff in error was a barber, and had a shop in the town of Lebanon. Muirhead, the prosecutor, went to the shop of Lawrence late in the evening for the purpose of having his hair trimmed. This operation having been performed, prosecutor took out his pocket-book in order to pay the plaintiff in error, and gave him a one dollar bill, but the latter, not having the change, left the shop for the purpose of procuring it, and prosecutor remained. When the prosecutor took out his pocket-book, which contained four hundred and eighty dollars, he laid it upon a table in the shop. On the retan of the plaintiff prosecutor met him without the door, received his change and departed. On retiring to bed that night at nine or ten o’clock he missed his pocket-book, and remembered that he had left it on the table in the shop. He then went to the shop, where he found the plaintiff, who denied all knowledge of the pocket-book. The foregoing is a sufficient statement of the evidence with reference to the question discussed before us. Upon this part of the testimony, his honor, the circuit judge, charged the jury, that if the prosecutor took out his pocket-book in the shop of the and laid it upon the table, and the defendant took it, unknown to the prosecutor, with the intention of converting it to his own use, against the will and knowledge of the prosecutor, and whilst the prosecutor was in the shop, that he would be guilty of larceny. The court further charged, that if the prosecutor had taken out his pocket-book and laid it upon the table at defendant’s shop and left it there and went away out of the house, it would still be a sufficient constructive possession in the prosecutor to make the taking and convert-ingit to defendant’s use a larceny, if such taking was accompanied with the intention of appropriating the bank notes to his own use without the knowledge, consent or will of the prosecutor. The defendant having been convicted by the verdict of the jury, and having moved the court for a new trial, which was refused, he brings his writ of error before this court; and here it has been argued with much zeal and ingenuity by his counsel upon the authority of Long’s case, 1 Hay. 157, note, State vs. Braden, 2 Tenn. Rep. 68, State vs. Wright, 5 Yer. Rep. 155, and Felter vs. The State, 9 Yerger, that to constitute larceny there must be at least a constructive possession in the owner of the goods and a trespass in the taking; and this is certainly so, upon the authority of the cases referred to. But the question before us is, had not the prosecutor, under the circumstances proved, a constructive possession, so as to make a taking, with the intention to appropriate, a trespass, and therefore a larceny? The defendant’s counsel answers the question in the negative, and strenuously contends that the prosecutor, having gone away from the shop without remembering that he had left his pocket-book behind him, the same, during the time his mind remained in that state, may be said to have been lost; and that it has been determined in the case of Porter vs. The State, Martin and Yer. 226, that the fraudulent appropriation of lost goods, even where the finder knows the owner, is not larceny. We answer that the pocket book, under the circumstances proved, was not lost, nor could the defendant be called a finder. The pocket book was left, not The loss of goods, lost .. , . . it -depends upon something more than the knowledge or lgnor-in legal and common intendment, anee, the memory or want of memory, of the owner, as to their locality at any given moment. If I place my watch or pocket-book under my pillow in a bed chamber, or upon a table or bureau, I may leave them behind me indeed, but if that be all, I cannot be said with propriety to have lost them. {To lose is not to place or put any thing carefully and voluntarily in the place you intend and then forget it, it is casually and involuntarily to part from the possession; and the thing is then usually found in a place or under circumstances to prove to the finder that the owner’s will, was not employed in placing it thereof To place a pocket book, therefore, upon a table, and to omit or forget to take it away, is not to lose it in the sense in which the authorities referred to speak of lost property; and wé are of opinion, therefore, that there was no error in the charge of the court in reference to the facts in this case, and we affirm the judgment.  