Bartlett, J.
The indictment charges the defendant with having feloniously received, knowing the same to be stolen, two silver bars of the value of $1,000 each, which belonged to one John P. Barkley, from whom they had been “feloniously stolen, taken, and carried away” by Edward Buck, Thomas Dugan, John Keenan, and certain other persons to the grand jury unknown. This act is charged as a second offense, it being alleged that the defendant was formerly convicted of grand larceny, and sentenced to a term of imprisonment, which, he served out. The former conviction for grand larceny was admitted upon the trial of the present case. No testimony whatever was introduced in behalf of the defendant, and the main question arising upon this appeal is whether the evidence offered on the part of the prosecution was sufficient to warrant a conviction. On December 20, 1889, John P. Barkley, a truckman, took a truck-load of silver bars from the American Exchange Bank in the city of New York to the Cunard dock on the North river, at the foot of Clarkson street. The load consisted of 101 bars when the truck left the bank, at about 25 minutes before 6 o’clock in the afternoon, "upon arrival at the wharf, about 10 minutes past 6, two of the bars were missing. The bars had been arranged in rows on the floor of the truck in one layer, and completely covered the floor, so as to leave only just room for the feet of the driver. Mr. Barkley and the driver were the only persons upon the truck, so far as appears, during the journey. The driver says it was foggy, but not very dark, when they started from the bank. Mr. Barkley says it was dark when they arrived at the Cunard dock. There he found that the bars had slid down, and that there was a broken space where the bars were missing from the rear of the truck. As I understand his testimony, the construction ■of the truck and its arrangement on this occasion were such as to render it quite easy, in the absence of very watchful care, for some of these silver bars to slide off into the street. “In order to take this heavy load on that day,” he says, “we put the tail-rack back a certain distance,—about six inches from the end of the floor of the truck,—leaving seven and a half inches exposed on either side of our truck, behind the hind wheels, and between the line where the tail-rack goes across and the end of the side-rack.” At the time the two silver bars thus disappeared, one William Gilmartin carried on the business ■of a junk dealer at No. 458 Washington street. He was called as a witness for the prosecution, and testified that about the 20th of December, before half past 6, Thomas Dugan and a man named Bock came into his place bringing two pieces of stuff which he thought was solder, and which he purchased from them for $14. The lumps of stuff “ were dirty, the same as if they were lying in the street.” The next day Gilmartin read some statement in a newspaper which apparently referred to the objects he had bought, whereupon he sent them to a liquor store in the neighborhood, and there put them in a safe. Subsequently Gilmartin, together with Bock and Dugan, all apparently acting together, sold the bars to the defendant for $650.
I do not think there is any serious question in the case as to the identity of [272] the bars. That the bars thus sold to the defendant were the silver bars from Barkley’s truck seems to me to be established beyond a reasonable doubt. I think the evidence also indicates very clearly that the defendant knew that the bars were not the property of the men from whom he purchased them. The difficulty in the way of the prosecution is in the testimony relied upon to show that the property had been stolen. The indictment alleges a felonious taking. Is it sustained by the proof in this respect? I am unable to answer this question in the affirmative. It seems to me not only that there is an entire absence of any proof of theft from the truck while in transit, but that the evidence all tends to show that the silver was lost off the vehicle in the course of the journey. There were two men on the truck,—the driver and Mr. Barkley,—and the driver swears that there was no one else on the truck with him at any time. In the presence of these two persons, presumably exercising some degree of watchfulness over the silver under their charge, it is extremely improbable that any one should have ventured to jump on the wagon, or so approach it as to be able to seize and carry off any portion of the load. On the other hand, there was a place where the bars might well slip off unobserved,—an opening at the side, towards the rear of the truck,—and the probability that they did thus slip off is strengthened by the testimony of Gilmartin as to their dirty condition when brought to him by Bock and Dugan. At that time it is tolerably certain that neither Bovk nor Dugan had any idea that the bars were silver, since they agreed to part with them for @14; and this fact also militates strongly against the theory of a felonious taking from the truck.
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Bartlett, J.
The indictment charges the defendant with having feloniously received, knowing the same to be stolen, two silver bars of the value of $1,000 each, which belonged to one John P. Barkley, from whom they had been “feloniously stolen, taken, and carried away” by Edward Buck, Thomas Dugan, John Keenan, and certain other persons to the grand jury unknown. This act is charged as a second offense, it being alleged that the defendant was formerly convicted of grand larceny, and sentenced to a term of imprisonment, which, he served out. The former conviction for grand larceny was admitted upon the trial of the present case. No testimony whatever was introduced in behalf of the defendant, and the main question arising upon this appeal is whether the evidence offered on the part of the prosecution was sufficient to warrant a conviction. On December 20, 1889, John P. Barkley, a truckman, took a truck-load of silver bars from the American Exchange Bank in the city of New York to the Cunard dock on the North river, at the foot of Clarkson street. The load consisted of 101 bars when the truck left the bank, at about 25 minutes before 6 o’clock in the afternoon, "upon arrival at the wharf, about 10 minutes past 6, two of the bars were missing. The bars had been arranged in rows on the floor of the truck in one layer, and completely covered the floor, so as to leave only just room for the feet of the driver. Mr. Barkley and the driver were the only persons upon the truck, so far as appears, during the journey. The driver says it was foggy, but not very dark, when they started from the bank. Mr. Barkley says it was dark when they arrived at the Cunard dock. There he found that the bars had slid down, and that there was a broken space where the bars were missing from the rear of the truck. As I understand his testimony, the construction ■of the truck and its arrangement on this occasion were such as to render it quite easy, in the absence of very watchful care, for some of these silver bars to slide off into the street. “In order to take this heavy load on that day,” he says, “we put the tail-rack back a certain distance,—about six inches from the end of the floor of the truck,—leaving seven and a half inches exposed on either side of our truck, behind the hind wheels, and between the line where the tail-rack goes across and the end of the side-rack.” At the time the two silver bars thus disappeared, one William Gilmartin carried on the business ■of a junk dealer at No. 458 Washington street. He was called as a witness for the prosecution, and testified that about the 20th of December, before half past 6, Thomas Dugan and a man named Bock came into his place bringing two pieces of stuff which he thought was solder, and which he purchased from them for $14. The lumps of stuff “ were dirty, the same as if they were lying in the street.” The next day Gilmartin read some statement in a newspaper which apparently referred to the objects he had bought, whereupon he sent them to a liquor store in the neighborhood, and there put them in a safe. Subsequently Gilmartin, together with Bock and Dugan, all apparently acting together, sold the bars to the defendant for $650.
I do not think there is any serious question in the case as to the identity of [272] the bars. That the bars thus sold to the defendant were the silver bars from Barkley’s truck seems to me to be established beyond a reasonable doubt. I think the evidence also indicates very clearly that the defendant knew that the bars were not the property of the men from whom he purchased them. The difficulty in the way of the prosecution is in the testimony relied upon to show that the property had been stolen. The indictment alleges a felonious taking. Is it sustained by the proof in this respect? I am unable to answer this question in the affirmative. It seems to me not only that there is an entire absence of any proof of theft from the truck while in transit, but that the evidence all tends to show that the silver was lost off the vehicle in the course of the journey. There were two men on the truck,—the driver and Mr. Barkley,—and the driver swears that there was no one else on the truck with him at any time. In the presence of these two persons, presumably exercising some degree of watchfulness over the silver under their charge, it is extremely improbable that any one should have ventured to jump on the wagon, or so approach it as to be able to seize and carry off any portion of the load. On the other hand, there was a place where the bars might well slip off unobserved,—an opening at the side, towards the rear of the truck,—and the probability that they did thus slip off is strengthened by the testimony of Gilmartin as to their dirty condition when brought to him by Bock and Dugan. At that time it is tolerably certain that neither Bovk nor Dugan had any idea that the bars were silver, since they agreed to part with them for @14; and this fact also militates strongly against the theory of a felonious taking from the truck.
The trial was conducted, however, on the assumption by the court and the counsel for the prosecution that it was not necessary to prove a felonious taking at all, although that was the only form of larceny alleged in the indictment. The jury were told, in substance, that it would be enough, so far as that branch of the case was concerned, if the proof established the statutory larceny defined in section 539 of the Penal Code, which reads as follows: “A person who finds lost property under circumstances which give him knowledge or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person who is not entitled thereto, without first having made every reasonable effort to find the owner and restore the property to him, is guilty of larceny.” A careful examination of the minutes of .the trial, as set out in the appeal-book, satisfies me that the proof fails to show a misappropriation of the silver bars as lost and found property under this section, just as it fails to show any taking which would have been larceny at common law Assuming, as seems altogether probable, that the bars were lost in the street by sliding off the floor of the truck through one of the side openings, and that they were subsequently found on the pavement by Bock and Dugan, there is no evidence that the finding was under circumstances which would give them knowledge or means of inquiry as to the true owner. It may be said that when they resumed control of the property after Gilmartin had seen some notice in a newspaper, and when they participated with Gilmartin in the sale to defendant Seaton, they brought themselves within the terms of section 539, because circumstances had then occurred which indicated the true ownership of the silver. There would be much force in this argument if the learned assistant district attorney, who conducted the prosecution, had laid before the court and jury the newspaper notice which Gilmartin testified that he had read, and which, according to his testimony, was read by Dugan, Bock, andSeaton, “between them,’’prior to the sale for @650 to Seaton. This notice, however, was not put in evidence. It may very well be that it contained information which, if communicated to Dugan and Bock, rendered them liable for the felonious misappropriation of found property; but, without knowing what were its contents, we cannotsay that such was its legal effect. Convictions in criminal cases must be founded. [273] upon competent proof, not upon guess-work or speculation as to the contents of papers which are shown to a witness on the stand, but not introduced in evidence or exhibited to the jury. Only two theories of the case were presented to the jury for their consideration,—one that the property was feloniously taken; the*other that it was lost, and retained by the finders under such circumstances as to make them guilty of a statutory larceny. In neither view does it seem to me that the proof was sufficient to sustain a conviction, and I am therefore in favor of reversing the judgment and granting a new trial.
All concur.