State v. Clifford

14 Nev. 72

• Court: Nevada Supreme Court
• Decided: January 15, 1879
• Docket: No. 937
• Status: Published

Opinion

By the Court,

Hawley, J.:

Appellant questions the correctness of several instructions given by the court as to the facts necessary to justify a conviction of the finder of lost property of the crime of larceny.

The rules of law relating to this subject and applicable to the facts of this case, as gleaned from the authorities, wbicli are very numerous, may be stated in general terms as follows: When property is found, in the highway, and the finder knows the .owner, or there be any mark upon it by which the owner may be ascertained, and the finder instead of restoring it converts it to his own use, such conversion will constitute a felonious taking. If there be no notice of the owner at the time of finding, 3'et if there be a felonious intention to appropriate the property, coupled with a reasonable belief that the owner could be found, it would be larceny. But the finder of lost property who takes possession of it not intending to steal it at the time of the original taking, is not rendered guilty of larceny by any subsequent felonious intention to convert it to his own use. (People v. McGarren, 17 Wend. 460; Wilson v. The People, 39 N. Y. 461; State v. Weston, 9 Conn. 526; Ransom v. The State, 22 Id. 153; Baker v. The State, 29 Ohio St. 184; Bailey v. The State, 52 Ind. 462; Wolfington v. State, 53 Ind. 343; Commonwealth v. Titus, 116 Mass. 42; Reg.v. Thurborn, 2 Car. & Kir. 832; Reg. v. Moore, 8 Cox, C. C. 416; 2 Bish. Cr. Law, sec. 882, and other authorities there cited; 2 Wharton Cr. Law, sec. 1800.)

All portions of the charge of the court or instructions given to the jury at variance with these rules are erroneous, especially those portions which convey an intimation to the jury that any subsequent felonious intention of defendant to convert the property to his own use is sufficient to authorize a conviction.

The court also erred in refusing to give the sixth instruction asked by defendant.

When property recently stolen is found in the possession of a person accused of the theft the accused person is bound to explain the possession in-order to remove its effect as a circumstance indicative of guilt. (State v. I. En. 10 Nev. 279.) But if there is no other evidence tending to establish the guilt of the defendant, and the jury are satisfied that he gives a reasonable account of his possession of the property, then it would be their duty to acquit.

Appellant claims that the evidence, under any theory of the prosecution, is insufficient to support a conviction of larceny; that if the defendant is guilty of any offense it could only be that of receiving stolen goods. In our opinion there is ample testimony tending to show that the defendant was guilty of the offense of grand larceny, either in stealing the bar of bullion from the stage or finding it upon the highway, knowing the owner, or, it having marks upon it by which the owner might readily be ascertained, intending at the time to convert it to his own use. If the jury believed the testimony given by the defendant, in his own behalf, to be true, he was not guilty of larceny or any other offense (unless it be that of compounding a felony).

The judgment of the district court is reversed, and the cause remanded for a new trial.