MANNING, J.
1. Appellant was indicted for tbe larceny of a sack of coffee. It bad dropped from a wagon-load of goods while being hauled from Eufaula to Clayton, about twenty miles distant, along a highway in Barbour county, and was not long afterwards, on the same day, found, between three and four miles from Eufaula, just over a fence by the) highway, and near some bushes, about fifty yards beyond a) gate at which defendant’s ox-wagon was standing, and! through which he had to pass on his way home with his wagon. Some circumstances were proved tending to show ’ defendant had put the sack where it was found; but he denied that he had seen it or knew anything about it. It was proved that he said he had been “pretty much in sight” of the wagon from which it was dropped, from Eufaula for about a mile or more, where he had turned off to a gin-house to get some cotton-seed, which he had in his wagon; but the driver of the other wagon, who had, after this, seen the sack of coffee in it, testified that he “had not seen defendant since he left Eufaula, that he was not in sight of witness’ wagon, nor did witness ever see or hear defendant, or his wagon, until after the coffee was lost.” There is no evidence in thei record that there was any mark on the sack of coffee, or \ other indicium, by which the owner could be known, or any i other evidence than that mentioned above, that defendant [430]*430knew who the owner was. But it is not expressly said in the bill of exceptions, that it contains all the evidence given, and, therefore, we cannot, according to the decisions of this court, hold that it does.
2. There is no error in the charge that was given by the judge to the jury. If the defendant feloniously took and carried away the sack of coffee from the public road, and knew when he took it who the owner was, or had immediate means of ascertaining or finding out who the owner was, then .he was guilty of larceny thereof. It seems to have been formerly held in England, and is'still, or lately, was held in one or two of the States of this Union, that the finder of an inanimate chattel that was really lost could not be found guilty of stealing it. “Lord Coeb lays down the law as drawn from the year books, (3 Inst. 107) to be, that if' one lose his goods and another find them, though he convert them, animo furandi, to his own use, yet -it is no larceny.” So, “in 2 East’s P. C. 663, it is expressly stated that where one finds a purse in the highway, which he takes and carries away, it is no felony, although it may be attended with all those circumstances which usually prove a felonious intent, such as denying and secreting it.” In the People v. Anderson (14 Johns. R. 296) from which the, foregoing extracts are taken, the defendant was indicted for stealing a trunk, which (it was believed) had fallen from a stage-coach on the highway and been found by him. The court below instructed the jury that if he took the trunk with intent to steal it, they ought to find him guilty; and that' in determining that question, they had a right to take into consideration the prisoner’s subsequent conduct as well as all the circumstances in the case. The Supreme Court of Nerv York reversed the judgment, and said: “The bona fide finder of a lost article, or of a lost trunk containing goods, cannot be guilty of larceny by any subsequent act of his in concealing or appropriating to his own use, the article or the contents of a trunk thus found. There can be no trespass in taking a chattel found in the highway, and the finder has a right to keep the possession against every one but the true owner. How, then, can it be that a thing found bona fide, and of which the finder has a right to take possession, shall be deemed to be taken feloniously, in consequence of a subsequent conversion, by denying and secreting it with an intention to appropriate it to the use of the finder.” See, also, The People v. Cogsdale, 1 Hill, 46; Lawrence v. The State, 1 Humph. 228; Porter v. The State, Mart. & Yerg. 226. By the words bona fide in the passage above, the court meant really, truly — that is, if the trunk had not been taken from the stage coach, but had truly [431]*431dropped from it in the public road, and been there really found by the prisoner.
8. The idea was, that the finder of an article lost on a highway, has a right to it against every body else than the true owner, and may take it and carry it away. And if he subsequently appropriates it to his own use, he does not thereby subject himself to punishment as a thief, although he may know, when he does so, who the owner is. This is in law a conversion only, very dishonest, it is true, but not larceny. The prevailing doctrine, though, is that if he take it even from a highway, animo furandi, with the intent to steal it, and this intent exists when he takes it, he is in law guilty of larceny.
4. But how shall a jury know whether or not the intent to steal existed at the time of the taking ? The law, in its humanity, requires them to presume any one on trial before them to be innocent. The guilt of the accused must be proved; and it must be proved by evidence showing that the intent to steal accompanied the act of taking, and stamped a larcenous character on his conduct from the beginning. If, at the tim9 of finding it, he does not know, or have the immediate means of knowing whose it is, evidence of a hiding of the article or of a disposing of it, afterwards, though only a very short time afterwards, is evidence of the intent then existing, in a mind that, perhaps, has just yielded to and been overcome by the temptation produced by possession and a reluctance to surrender what had not been dishonestly obtained. But such misconduct, especially after the owner is known, is, in the apprehension of those who have had proper moral training, so little better than larceny, that upon proof of it, a jury would generally be inclined to convict. And yet the defendant might, consistently with all such evi-i deuce, have had no intention to steal the article when he; found it. The law, therefore, requires that it be further! shown that defendant, when he found the article, knew who the owner of it was, or had then and there the means of knowing whose it was. Says Mr. Bishop (in the 6th ed. of his Commentaries on Criminal Law): “A man knowing the owner of goods cannot lawfully pick them up without returning them to him; but a man not knowing the owner can. The doctrine, therefore, is, that if, when one takes goods into his hands he sees about them any marks, or otherwise learns any facts, by which he knows who the owner is, yet with felonious intent appropriates them to his own use, he is guilty of larceny, otherwise not. Some of the cases say if he knows who the owner is or has the means of ascertaining ; but the better doctrine is, as before set down, because every [432]*432man, by advertising and inquiry, can find the owner, if he is to be found, while the guilt of the defendant must attach at the moment, if ever.” — 2 Yol. § 882. The doctrine above laid down is that |of thecase of Regina v. Thurbourn, 1 Denn. C. C. 387; (2 Leading Crim. Cases, 48) in which Baron Parke delivered a long and well considered opinion. A like conclusion was reached in Tanner's case, (14 Grattan), by the Court of Appeals of Yirginia, after a thorough examination of the cases, including those mentioned in the elaborate note to Regina v. Preston, 2 Lead. Crim. Cases, 31. “We have seen,” says Allen, president of the court, “from the authorities, that where there are no indicia,
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MANNING, J.
1. Appellant was indicted for tbe larceny of a sack of coffee. It bad dropped from a wagon-load of goods while being hauled from Eufaula to Clayton, about twenty miles distant, along a highway in Barbour county, and was not long afterwards, on the same day, found, between three and four miles from Eufaula, just over a fence by the) highway, and near some bushes, about fifty yards beyond a) gate at which defendant’s ox-wagon was standing, and! through which he had to pass on his way home with his wagon. Some circumstances were proved tending to show ’ defendant had put the sack where it was found; but he denied that he had seen it or knew anything about it. It was proved that he said he had been “pretty much in sight” of the wagon from which it was dropped, from Eufaula for about a mile or more, where he had turned off to a gin-house to get some cotton-seed, which he had in his wagon; but the driver of the other wagon, who had, after this, seen the sack of coffee in it, testified that he “had not seen defendant since he left Eufaula, that he was not in sight of witness’ wagon, nor did witness ever see or hear defendant, or his wagon, until after the coffee was lost.” There is no evidence in thei record that there was any mark on the sack of coffee, or \ other indicium, by which the owner could be known, or any i other evidence than that mentioned above, that defendant [430]*430knew who the owner was. But it is not expressly said in the bill of exceptions, that it contains all the evidence given, and, therefore, we cannot, according to the decisions of this court, hold that it does.
2. There is no error in the charge that was given by the judge to the jury. If the defendant feloniously took and carried away the sack of coffee from the public road, and knew when he took it who the owner was, or had immediate means of ascertaining or finding out who the owner was, then .he was guilty of larceny thereof. It seems to have been formerly held in England, and is'still, or lately, was held in one or two of the States of this Union, that the finder of an inanimate chattel that was really lost could not be found guilty of stealing it. “Lord Coeb lays down the law as drawn from the year books, (3 Inst. 107) to be, that if' one lose his goods and another find them, though he convert them, animo furandi, to his own use, yet -it is no larceny.” So, “in 2 East’s P. C. 663, it is expressly stated that where one finds a purse in the highway, which he takes and carries away, it is no felony, although it may be attended with all those circumstances which usually prove a felonious intent, such as denying and secreting it.” In the People v. Anderson (14 Johns. R. 296) from which the, foregoing extracts are taken, the defendant was indicted for stealing a trunk, which (it was believed) had fallen from a stage-coach on the highway and been found by him. The court below instructed the jury that if he took the trunk with intent to steal it, they ought to find him guilty; and that' in determining that question, they had a right to take into consideration the prisoner’s subsequent conduct as well as all the circumstances in the case. The Supreme Court of Nerv York reversed the judgment, and said: “The bona fide finder of a lost article, or of a lost trunk containing goods, cannot be guilty of larceny by any subsequent act of his in concealing or appropriating to his own use, the article or the contents of a trunk thus found. There can be no trespass in taking a chattel found in the highway, and the finder has a right to keep the possession against every one but the true owner. How, then, can it be that a thing found bona fide, and of which the finder has a right to take possession, shall be deemed to be taken feloniously, in consequence of a subsequent conversion, by denying and secreting it with an intention to appropriate it to the use of the finder.” See, also, The People v. Cogsdale, 1 Hill, 46; Lawrence v. The State, 1 Humph. 228; Porter v. The State, Mart. & Yerg. 226. By the words bona fide in the passage above, the court meant really, truly — that is, if the trunk had not been taken from the stage coach, but had truly [431]*431dropped from it in the public road, and been there really found by the prisoner.
8. The idea was, that the finder of an article lost on a highway, has a right to it against every body else than the true owner, and may take it and carry it away. And if he subsequently appropriates it to his own use, he does not thereby subject himself to punishment as a thief, although he may know, when he does so, who the owner is. This is in law a conversion only, very dishonest, it is true, but not larceny. The prevailing doctrine, though, is that if he take it even from a highway, animo furandi, with the intent to steal it, and this intent exists when he takes it, he is in law guilty of larceny.
4. But how shall a jury know whether or not the intent to steal existed at the time of the taking ? The law, in its humanity, requires them to presume any one on trial before them to be innocent. The guilt of the accused must be proved; and it must be proved by evidence showing that the intent to steal accompanied the act of taking, and stamped a larcenous character on his conduct from the beginning. If, at the tim9 of finding it, he does not know, or have the immediate means of knowing whose it is, evidence of a hiding of the article or of a disposing of it, afterwards, though only a very short time afterwards, is evidence of the intent then existing, in a mind that, perhaps, has just yielded to and been overcome by the temptation produced by possession and a reluctance to surrender what had not been dishonestly obtained. But such misconduct, especially after the owner is known, is, in the apprehension of those who have had proper moral training, so little better than larceny, that upon proof of it, a jury would generally be inclined to convict. And yet the defendant might, consistently with all such evi-i deuce, have had no intention to steal the article when he; found it. The law, therefore, requires that it be further! shown that defendant, when he found the article, knew who the owner of it was, or had then and there the means of knowing whose it was. Says Mr. Bishop (in the 6th ed. of his Commentaries on Criminal Law): “A man knowing the owner of goods cannot lawfully pick them up without returning them to him; but a man not knowing the owner can. The doctrine, therefore, is, that if, when one takes goods into his hands he sees about them any marks, or otherwise learns any facts, by which he knows who the owner is, yet with felonious intent appropriates them to his own use, he is guilty of larceny, otherwise not. Some of the cases say if he knows who the owner is or has the means of ascertaining ; but the better doctrine is, as before set down, because every [432]*432man, by advertising and inquiry, can find the owner, if he is to be found, while the guilt of the defendant must attach at the moment, if ever.” — 2 Yol. § 882. The doctrine above laid down is that |of thecase of Regina v. Thurbourn, 1 Denn. C. C. 387; (2 Leading Crim. Cases, 48) in which Baron Parke delivered a long and well considered opinion. A like conclusion was reached in Tanner's case, (14 Grattan), by the Court of Appeals of Yirginia, after a thorough examination of the cases, including those mentioned in the elaborate note to Regina v. Preston, 2 Lead. Crim. Cases, 31. “We have seen,” says Allen, president of the court, “from the authorities, that where there are no indicia, by which the owner can be found, the appropriation to the finder’s use does not amount to larceny; for, as it has been held, the finder of a chattel actually lost, is not bound to take any means to discover the owner. He must know him immediately from marks about the property or otherwise.” And in a case like the present, it cannot be held that he is bouud to wait by the lost goods to see whether the owner will not return for them. Peradventure, the person from whose wagon this sack of coffee dropped, might not have discovered the loss of it till his arrival at Clayton. In Commonwealth v. Titus, 16 Mass. 42), the Supreme Judicial Court of Massachusetts recognized a like doctrine, namely, that it should be shown that, when the article was found, it .was taken by the finder, animo furandi, and also that he then knew or had reasonable means of knowing or ascertaining who the owner was. Said Gray, C. J.: “The instruction given did not require the jury to be satisfied merely that the defendant might have reasonably ascertained it, but that at the time of the original taking, he either knew or had reasonable means of knowing or ascertaining who the owner was. Such a finding would clearly imply that he had such means within his own knowledge, as well as within his own possession, or reach, at that time.”
5. A distinction is made by the courts, between cases in which an article is dropped in a highway, or other place in which it is manifestly lost, and those in which it is intentionally left or dropped by the owner in other places — as on a table in a barber’s shop, or in a garden of the owner, or in the prisoner's store, or 1qy a departing guest at his hotel. Speaking of such, Parke, Baron, said: “Perhaps these cases might be classed amongst those in which the taker is not justified in concluding that the goods were lost, because there is little doubt he must have believed that the owner would know where to find them again, and he had no pre-tence to consider them abandoned or derelict.” — Regina v. [433]*433Thurbor, supra. But where the goods are found in a highway, (as is said in the note to Regina v. Preston, 2 Leading Grim. Cases, p. 34), “if there are no marks upon the property or other indicia, by which the owner can be found, the appropriation to the finders use does not amount to larceny, although he knew the property was not his own.” See, also, Lane v. The People, 5 Gillman, Ill. 305, in which it is said: “These authorities proceed on the principle that there cannot be a felonious intent in taking a chattel from the highway, which has no marks about it to designate the owner, the finder in such case having the right to take and retain the “possession against every one but the owner.” Perhaps it would be more correct to say, that, without some such evidence indicating to the finder at the time of the taking of the chattel, whose it was, if he did not otherwise know it, the law presumes that he took it, innocently and lawfully, because he might do so. By departing from this rule we should obliterate a well defined boundary, on one side, of the crime of larceny. It is wrong in policy and in law to substitute vague ideas in the place of a clear criterion, to juries that have to consider the evidence in such cases. And if we resolve to do so, it seems to me, that to be consistent, we ought to go yet further, and disregarding precedents, decide that the finder of a lost chattel shall be held to be a bailee of it for the owner, and (like a hirer, who knows the owner of the property he is getting, and by his own act procures it from him, must be held to have obtained it in the first instance with a felonious intent, if he afterwards appropriates it to his own use. But the hirer, in such a case, not only converts the chattel to his own use, but perfidiously ' breaks the plighted faith implied in the contract of bailment/ that he will return it; for which reason he may well be supposed to have gotten it with a felonious intent.
6. The charges asked for defendant, and refused, all are founded on the idea, that to make the defendant guilty of larceny, either he must at the time of taking the sack of coffee, have known w'ho the owner was, or that there must have been marks upon it by which he could then be known. The second condition is too narrowly expressed. The defendant, according to the rule laid down, may be found guilty— other things being sufficiently proved — if he has the present means of knowing who the owner is, “by marks on the goods, or otherwise,” or, according to Bishop, if, when he takes the goods into his hands, he “sees about them any marks, or othenuise learns any facts, by which he knows who the owner is.” It is thus implied that such knowledge may be obtained otherwise than by marks only on the goods. [434]*434Consequently there was no error in refusing those charges.
Let the judgment of the City Court be affirmed.
BRICKELL, 0. J.
1. It seems at one time to have been a generally received opinion that lost goods were not under any circumstances the subject of larceny. Whether a careful and just examination of the older authorities would support the opinion, is not now matter of importance. If it ever prevailed, it must have been admitted with the limitation expressed by Lord Hale, who says: “This taking of treasure-trove, waif, or stray, must be when the party that takes them, really believes them to be such, and colours not a felonious taking under such a pretense, for then every felon would cover his felony with that pretense.” — 1 Hale, Pleas of the Crown, 506; 2 Russ. Crimes, 12. The doctrine has been repudiated in England, and it never found the least countenance, so far as we can discover, in but two cases in this country, the one in Tennessee, (Porter v. The State, M. & Yerg. 226,) and the other in New York, (People v. Anderson, 14 Johns. 293). The decision in Tennessee rests on the reasoning that as a trespass is not committed in taking goods lost they are not the subject of larceny. The same reasoning has led the same court to the anomalous ruling, that if goods are fraudulently obtained under a pretense of hiring, but with the intent of stealing, and selling them, there can be no larceny, as there was no trespass committed in obtaining possession. — Felter v. State, 9 Yerg. 297. The New York case was decided by a divided court, (THOMPSON, C. J., dissenting), and has not been approved by other courts. Tanner v. Commonwealth, 14 Gratt. 635; Ransom v. State, 22 Conn. 153. It is said of this case, in People v. Swan, 1 Park. Cr. Rep., by Willaed, 3., that the particular facts are not detailed, but it is assumed that the owner had lost the goods, and that the defendant was an honest finder. And in People v. McCarren, 17 Wend. 463, it is said of it, that it did not appear that the defendant knew, or had the means of knowing, who was the owner of the property. There can be no other ground on which the case can be supported. The finder can not be honest, if he knew, or from the facts and circumstances attending the finding, or from his previous acquaintance with the goods, or from marks or other indicia on them, he has the immediate means of ascertaining-the owner. It is then his duty, legal and moral, not to appropriate them absolutely to his own use, or to convert them, but to restore them to the rightful owner. This seems to us unquestionably the doctrine in England, since the ca se of Regina v. Thurbourn, 1 Den. C. C. 387, in which Pa eke, B., [435]*435alter referring to tbe older authorities, says: “Tt appears, however, that goods which do fall within the category of lost goods, and which the taker justly believes to have been lost, may be taken out and converted so as to constitute the crime of larceny, when the party finding may be presumed to know the owner, or there is any mark upon them presumably known by him, by which the owner can be ascertained.” In the conclusion of his opinion, it is said: “The result of these authorities is, that the rule of law on this 'subject seems to be, that if a man find goods that have been actually lost, and appropriates them, with intent to take the entire dominion over them, really believing when he takes them that the owner can not be found, it is not larceny. But if he takes them with the like intent, though lost or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny.” Later English cases, while not agreeing with some of the reasoning, and some of the principles stated by the learned Baron, have fully recognized the doctrine that lost property is the subject of larceny. In Regina v. Christopher, Bell, C. C. 22, referred to in 2 Heard’s Lead. Or. Cases, 424, it is said by Hill, J., that “two things must be made out in order to establish a charge of larceny against the finder of a lost article. First, it must be shown that, at the time of finding, he had the felonious intent to appropriate the thing to his own use; and this is founded on the rule laid down by Lord Coke, and referred to and acted upon in Regina v. Thurbourn. The other ingre-1 dient necessary is, that at the time of tbe finding he had j reasonable ground for believing that the owner might be j discovered, and that reasonable belief may be the result of a previous knowledge, or may arise from the nature of the chattel found, or from there being some name or mark upon it, but it is not sufficient that the finder may think that by ; taking pains the owner may be found; there must be the immediate means of finding him.”
2. Before and since these decisions, the courts of this country have made no other distinction between goods lost, and those in any other situation, than that, at tbe time of the! finding the intent to steal must exist, and the finder must! know, or have the reasonable means of knowing or ascertain-' ing the owner. — 3 Creen. Ev. § 159, and authorities referred to in the notes; 2 Heard Lead. Or. Oases, 423-432.; 2 Bish. Or. Law. §§ 878-883; Commonwealth v. Titus, 116 Mass. 42. The place of finding is material only in determining whether the goods fall in the category of lost goods, or of goods merely mislaid, or put down and left by mistake of the owner, under circumstances which enable him to know where [436]*436they were, and at a place to which he would naturally return for them. — Lawrence v. State, 1 Hum. 228; Pritchett v. State, 2 Sneed, 285; Pyland v. State, 4 Sneed, 357; State v. Brick, 2 Harrington, 530; People v. McGarren, 17 Wend. 460; Regina v. Kerr, 8 Carr. & Payne, 176; Regina v. Peters, 1 Carr. & Kir. 245; Cartwright v. Cartwright, 8 Vesey, 406; Merry v. Green, 7 Mees. & Wels. 623.
3. The taker of goods mislaid, or left by mistake, is guilty of larceny by an appropriation or conversion of them to his own use, wh ether the intent to steal was formed at the time of or subsequent to the taking.
4. Larceny may be committed in any place, public or private, in a highway, or in the dwelling of the owner. In Ransom v. State, 22 Conn. 156, the court quotes, with approbation, the definition of larceny, as given in 2 East, P. C. 553, which Professor Greenleaf says, is the most approved definition : “The wrongful or fraudulent taking and carrying away, by any person, of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker’s) own use, and make them his own property, without the consent of the owner.”- — 3 Green. Ev. § 150. The court proceed to say, each branch of this definition is strictly, and according t-o the meaning which has been uniformly attached to it by judicial construction, applicable as well to goods lost, as to any other.” And further, the court say: “It is certainly not impossible, from the nature of the case, for a person who discovers the goods of another which have been lost in a highway, or any other place, to form a fraudulent intention to appropriate them to his own use, and to take them with that intention. The place where they are found is immaterial, as it respects the offense of larceny, because the definition of it extends to the taking and carrying away of goods “from any place.” There is nothing in the circunF^ stance, that they were there, because they were accidentally lost, which any more precludes the possibility of forming such a fraudulent intention, than if they had been placed there designedly by the owner. This is so far from being true, that the very fact, that they were apparently thus lost, and that their location is therefore unknown to the owner as well as others, and also that he is unknown, or the loss undiscovered, may and often does constitute a motive, on the part of the finder, arising from the difficulty of detection, and hope of impunity, which induces him to take possession of the property, and convert it to his own use.” Nor does the finder acquire any other or greater right, nor are his duties in any respect changed, because the goods are lost and found in a highway. He may lawfully take possession of them, [437]*437when they are lost, wherever they may be found. And when found, his duty is to keep them for the owner. The owner is not by the loss at any place divested of the right of property, and that right draws to it constructively the possession. The finder, it is true, may retain them against all the world but the owner. So may every other possessor of personal property retain it, however tortiously, or criminally, the possession was obtained, against all but the owner, or some person connecting himself with the title of the owner. 1 Chit. PI. 170; 1 Waterman on Trespass, 507; Tarry v. Brown, 34 Ala. 159.
5. The finder of lost goods does not commit a trespass in taking possession of them — he does merely a lawful act, though he may know the owner or have the immediate means of ascertaining him. There is no violation of the owner’s right of property, nor invasion of his possession. Larceny generally includes a trespass; yet every trespass is not larceny. Whether it is larceny, depends on the intent at the time of its commission, or on the subsequent fraudulent appropriation and conversion of the goods. If possession is obtained by a trespass, it is not material whether the animo furandi then existed, or was subsequently formed. Commonwealth v. White, 11 Cush. 483; State v. Coombs, 55 Maine, 477. A distinction arises between the taking of lost goods, and a taking by a trespass — the intention to steal must exist at the time of the finding — no subsequent formation of that intention will convert the taking into a felony, though the owner be known. — 2 Heard’s Lead. Cr. Cases, 425.
6. If at the time of the finding the felonious intent did not exist, though there may be a subsequent concealment of the goods, or a denial of all knowledge of them, and a fraudulent appropriation of them, the offense is not larceny. Whether the criminal intent coexisted with the finding, is a question for the jury. It may be a question of difficulty, but it is to be ascertained by the jury just as the intent with which any act is done is ascertained — by a careful examination of the facts and circumstances attending and immediately following the finding. We quote again from the case of Ransom v. State, supra, “for the purpose of showing such intention, inquiries as to his” (the finder’s) “conduct, and all the circumstances preceding, accompanying, or following such taking, so far as they are relevant, are, as in all other cases of a similar accusation, admissible; and when the goods were obtained by finding, it is from the nature of the case, very important to ascertain, whether the accused knew, or had the means of knowing, the owner, or endeavored to discover him, or made known or concealed his acquisition; [438]*438and, generally, how he conducted with the goods, in order to determine whether he intended originally to convert them to his own use, or to restore them to the owner." No arbitrary or artificial importance or effect is attached to these circumstances, when they are disclosed by the evidence; they are only evidential of the intention of the accused, and, as such, to be weighed by the jury.”
"We all concur in affirming the judgment of conviction; but a majority of the court do not concur in the reasoning employed, or in the principles of law stated by our brother MANNING, so far as they are variant from this opinion.