
    HAMP. MAYE v. STATE.
    Nashville,
    December Term, 1886.
    1. LARCENY. Finder of lost property not guilty of larceny for refusing- to surrender it to- subsequently ascertained owner.
    Under the statute (Shannon’s Code, sec. 6551), providing that “if any person come, by finding, to the possession of any personal property of which he knows the owner, and unlawfully appropriates the same, or any part thereof, to his own use, he is guilty of larceny, and shall be punished accordingly,” it is reversible error in the charge of the court, wherein it is said, after a correct statement of the law: “But if, after finding it, he” [the accused] “afterwards ascertained that it was the property of the prosecutor, and still concealed it, and fraudulently kept it, intending to deprive the true owner of his property, he would then be guilty.” [The finder of lost personal property, the owner of which is unknown to him at the time, is not guilty of larceny, because he refuses to surrender it to the subsequently ascertained owner. See Morehead v. State, 9 Hum., 637; 2 Bishop Crim. Law, sees. 877-883.]
    Cited and construed: Code (1858 and T. & S.), sec. 4685; M. & V. Code, see. 5451; Shannon’s Code, sec. 6551.
    
      2. SAME. Conviction under indictment tor larceny not alleging a, loss and finding under statute.
    It is not necessary that the indictment should charge a loss and finding under the statute (Shannon’s Code, sec. 6551) providing that “if any person come by finding to the possession of any personal property of which he knows the owner, and unlawfully appropriates the same, or any part thereof, to his own use, he is guilty of larceny, and should be punished accordingly.” A conviction can be had on an ordinary indictment for larceny, upon proof of facts that bring the case within said slatute.
    Cited and construed: Code (1858 and T. & S.), sec. 4685; M. & V. Code, sec. 5451; Shannon’s Code, sec. 6551.
    Appeal from circuit court of Warren county.
   Folkes, J.,

delivered tbe opinion of tlie court;

This case is reversed for error in the charge of the court, wherein it was said, after a correct statement of the law: “But if, after finding it, he afterwards ascertained that it was the property of the prosecutor, and still concealed it, and fraudulently kept it, intending to deprive the true owner of his property, he would then be guilty.” This is manifest error, under the well-established rule in this state, whatever may be the holding by the English and some of the American states. It may have misled the jury, as there was evidence in the case to which such charge might well have been applied by the jury; in consequence of which we reverse, notwithstanding the fact that on the first count the verdict might very well have rested under the proof in the cause. It is not necessary that the indictment .should charge a loss and finding under sec. 5451 of the Code A conviction can be had on an ordinary indictment for larceny, such as is contained in the first count, upon proof of facts that bring the case within said section of the Code.  