State v. Conway

• Decision Date: 31 March 1853
• Citation: 18 Mo. 321
• Parties: THE STATE, Respondent, v. CONWAY et al., Appellants.
• Court: Missouri Supreme Court

18 Mo. 321

THE STATE, Respondent,

v.CONWAY et al., Appellants.

Supreme Court of Missouri.

March Term, 1853.

1. The finder of lost property, having no marks by which the owner can be ascertained is not guilty of larceny, although he takes it animo furandi.

2. To constitute larceny, the intention to steal must have been formed at the time of the taking.

Appeal from St. Louis Criminal Court.

Blennerhassett & Shreve, for appellants.

I. Under our salvage law, and on general principles, the taking of the safe by the defendants from the river, was not only lawful, but a duty. (R. C 1835, p. 984, sec. 1, tit.) “Salvage.” The doing of this act was open and notorious, in broad day-light, and therefore unattended by any of those badges which are characteristic of a felonious intent.

II. If the original taking was lawful, though the defendants may afterwards appropriate the property to their own use, it is not larceny. (14 J. R. 294; 2 Taylor, 31; 9 Yerg. 198; 5 ib. 154; 1 Hill, 94; State v. Witt, 9 Mo. 671.) If this proposition is correct, the court below erred in the instructions given and refused.

H. A. Clover, (circuit attorney,) for the State.

RYLAND, Judge, delivered the opinion of the court.

The defendants were indicted for grand larceny, in the Criminal Court of St. Louis county, were found guilty and sentenced to two years imprisonment in the penitentiary. A motion was made for a new trial, overruled, and the defendants prayed for an appeal, and bring the case here.

The following are the facts substantially:

In April, 1852, the steamboat Glencoe having arrived at this city from New Orleans, and when about to take her berth at the foot of Chesnut street blew up, and her iron safe, containing about $600 in gold, silver and paper money was thrown into the river, first striking against some barrels on the adjoining boat. From the evidence preserved, the defendant's counsel contended that, in this concussion, the presumption was that the door of the safe was broken. The safe lay in the river until the following July or August. A few days after the loss of the Glencoe, Brookes, one of the owners, learned about where the safe was in the river, and in his testimony says, that he did not try to recover it, in consequence of the high water, but employed a man to recover it when practicable, and that no direct efforts were, at any time, made to find it in the river. He also states that, in the notice of loss served on the Insurance company where the Glencoe was insured, this safe and contents were included. In July or August, 1852, and about ten o'clock in the forenoon, nine or ten men, among whom were the defendants, discovered the safe, and, with the assistance of some of the officers, among whom were some of the officers of an adjoining boat, got the safe out of the river, and put it on a dray and took it to a house on an alley in the northern part of the city, where one of the defendants lived. Brookes, the owner, having learned the fact the same morning, tracked the safe through the streets, by the black water that fell from the dray. He found the men in the room and two women. The money was in a tray on the table, around which the men stood as though counting it. Brookes said the money and safe belonged to the owners of the steamer Glencoe, and told them not to interfere with it, and they would be well paid for their trouble; they, (two of the defendants,) said they found it in the river and claimed that they were entitled to it. Brookes went off for Mr. Finney. He and Mr. F. got some police officers, and on their return ascertained that the men went out on the plank road into the country. They were pursued and were caught in the corn field about three miles from the city, and some of the money, claimed to be taken from the iron safe, found on them. The jury might well find, from the evidence, that they tried to escape and conceal themselves from those in pursuit of them.

Upon the facts in proof, the defendants prayed the court to give the following instructions:

1. If the jury find from the evidence, that the defendants, or either of them, found the iron safe in question in the Mississippi river, and not knowing the owner or owners thereof, and believing it was lost, took it openly in the day-time, without any attempt at concealment, the jury will acquit.

2. If the jury find from the evidence, that the safe in question was blown from the steamer Glencoe into the Mississippi river, in the month of April last, and that the same was in a perishable condition, then the defendants had a right to take such safe and contents out of the river and reduce it to their possession, and their subsequent acts will not make them guilty of a felonious taking.

These instructions the court refused to give. The court then gave the following instructions:

1. If the jury find from the evidence, that the defendants, or either of them, found the iron safe in question in the Mississippi river, and not knowing the owner or owners thereof, and believing it was lost, took it openly in the day-time, without any attempt at concealment or to steal the property found, at the time or subsequently, you will acquit.

2. If the jury find from the evidence, that the safe in question was blown from the steamer Glencoe into the Mississippi river in the month of April last, and that the same was in a perishable condition, then the defendants had a right to take such safe and contents out of the river and reduce it to their possession.

3. If the jury believe from the evidence, that the defendants took and carried away the safe and contents in question, and that the said safe had, by an explosion of the steamer Glencoe, been cast into the river, but not abandoned by the owners or lost to them from want of knowledge of the whereabouts of the same, and if the jury believe that the owner had, by himself or his agents, used efforts for the recovery of the said safe, and at the time of the taking of the same by the defendants, was yet using efforts for its recovery, then the safe was not lost property, in the contemplation of the law respecting salvage; and if the jury also believe from the evidence that, at the time the defendants took the safe, they knew who the owner was, or, on the other hand, had, at the time, readily and instantly the means of knowing who he was, either by marks about the property, or by inquiry from the bystanders, and they took it with the intent to steal it, then the taking of the same, under the circumstances named, renders the defendants liable as for a larceny; but if, after the taking of the safe from the water, the defendants, or either of them, took from the safe any of the money charged in the indictment with the intent to steal it at the time of the taking, and you have no reasonable doubt of it, and to deprive the owner thereof of its use, and that the value of the money so taken was ten dollars or upwards, you will find such defendant or defendants guilty of grand larceny. But if you believe that any of the defendants did not entertain the intention to steal the money at any time, you will acquit such defendant or defendants.

4. Without the jury believe from the evidence in the cause, that the defendants or either of them, took the property in question, and at that time the defendants or either of them, did so take with a felonious intent, you will return a verdict of not guilty in the case.

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