thing."1

So also, when personal property is defined as "goods and chattels ;" and under statutes which recognize dogs as property by subjecting them to taxation. No such statutes seem to have been enacted in North Carolina or Ohio."

3

(c) Birds, poultry, etc.-In Massachusetts, doves being animals feræ naturæ, are not the subjects of larceny, except when in the care and custody of the owner, as when in a pigeon-house, or when in the nest before they are able to fly." In Arkansas, a reclaimed and tamed mocking-bird is a subject of larceny, and also of trespass by the owner against one taking it, or of replevin against one detaining it." In North Carolina, a turkey is a subject of larceny; andan allegation in the indictment that the turkey stolen was a tame one is not necessary. And the same is true of other kinds of poultry, their young and their eggs."

(d) Wild animals and bees.-At common law, animals feræ naturæ, such as bears, foxes, monkeys, ferrets, cats, etc., are not the subjects of larceny, although there may be a property in them which the law will protect by a civil action. Thus, a sable caught in a trap in the woods is not the subject of larceny.' But beasts feræ naturæ-in this case an otter may be the subject of larceny when they are reclaimed or con

1 Harrington v. Miles, 11 Kansas 480; 15 Am Rep. 355; State v. Brown,

9 Baxt 53; 40 Am Rep 81; Mullaly v People, 86 N. Y. 365.

2 State v. Brown, 9 Baxter 53; 40 Am. Rep 81. Contra State v. Doe, 79 Ind. 9; 41 Am. Rep 599

3

* People v. Maloney, 1 Parker 593; People v. Campbell, 4 Parker, 386.

4 State v. Holder, 81 N. C. 527; State v. Lymus, 26 Ohio St. 400.

Com v. Chace, 9 Pick. 15; 19 Am. Dec. 348.

6 Haywood v. State, 41 Ark. 479.

'State v. Turner, 66 N. C. 618.

* Com. v. Beeman, 8 Gray, 497.

'Norton v. Ladd, 5 N. H. 203; 20 Am. Dec. 573. The prisoner was employed to trap wild rabbits, and it was his duty to take them, when trapped, to the head-keeper. Contrary to his duty he trapped from time to time rabbits, and took them to another part of the land and placed them in a bag with intention of appropriating them to his own use, which another keeper obserrving, went and took some of the rabbits out of the bag during the prisoner's absence, and nicked them and put them into the bag. His reason for nicking them was that he might know them again. The prisoner afterwards took away the bag and rabbits. Held, that the act of the keeper in nicking the rabbits was no reduction of them into the possession of the

fined or when they are dead.' Bees in possession of the owner are the subjects of larceny.'

(e) Oysters and fish.-Oysters are subjects of larceny if planted where they do not naturally grow, and designated by stakes or otherwise so that they can be readily identified; and oyster stealing is as much a subject of indictment as is the stealing of inanimate things or domestic animals. In Rhode Island, however, the wrongful taking of oysters from a private bed is an offense distinct from that of larceny. Fish are not the subject of larceny unless reclaimed, confined or dead, and valuable for food or otherwise. And an indictment for larceny which charges the defendant with having stolen "five fish," and fails to allege any of the conditions which render fish the subject of larceny, is fatally defective."

§ 47. Larceny of one's own property. One may be guilty of larceny in stealing his own property, when done with an intent to charge another with its value." Where, however, property is taken under a fair color of title, a conviction for theft cannot be sustained;' especially when the evidence shows reason to believe the claim well founded. A party cannot be convicted of larceny who takes goods honestly believing they are his own, or another's for whose protection he has the right to take possession. Nor where it is in doubt whether

master, so as to make the prisoner guilty of stealing them.-Reg. v. Petch, 14 Cox Cr. Cas. 116.

1 State v. House, 65 N. C. 315; 6 Am. Rep. 744.

2 State v. Murphy, 5 Blackf. 498.

State v. Taylor, 3 Dutch 117; 72 Am. Dec. 347.

State v. Tayler, 13 R I. 541.

State v. Krider, 78 N C. 481.

• Palmer v. People, 10 Wend. 165; 25 Am. Dec. 551; People v. Thompson,

34 Cal. 671; Tex. Ct. of App., Taylor v. State, 7 Tex. App. 659.

7

Kay v. State, 40 Tex. 29; see also supra § 5; infra § 236. 8 Smith v. State, 42 Tex. 444

Baker v. State, 17 Fla. 406. Where defendant went to a milk wagon, of which he had formerly been driver, in a public street, took from it a bell, which he rang loudly for some time, and, the driver not appearing, left word with a by-stander that he had taken his bell, and that he had bought it while employed as driver, and on his discharge had left it, and his successor had used it, a conviction was reversed.-Causey v. State, 79 Ga. 564. On a trial for larceny of a sewing machine,

1

defendant's claim of ownership may not be true, and where, at any rate, it is apparent that defendant believed it to be true. Nor where the proof fails to establish ownership in another than defendant.' It is not larceny for the owner of an animal that has estrayed to take it into his possession.'

§ 48. Larceny of property jointly owned. To make a joint owner or tenant in common guilty of larceny by taking and disposing of the whole property to his own use, he must have taken it out of the hands of a bailee with whom it was left for safe keeping; or from some one who was entitled to the exclusive possession of it. Thus one of two or more joint owners of a growing or outstanding crop cannot be guilty of larceny by taking any part of it while thus held. But when a tenant of lands lets another person have an interest in his contract, under an agreement between them to cultivate the land and divide the crops equally, after paying the rent, and the latter ceases to work, and abandons the crop before maturity, giving as a reason that he did not think they could make it appeared that defendant once owned it, and claimed it as exempt property; that a judgment creditor seized and sold it on execution; and afterwards, having obtained it from the purchaser at the sale, placed it with a person desiring to purchase, on trial, when defendant peaceably took it away under advice of his attorney, telling the person under what right he claimed it, and giving a receipt for it, stating his name and residence. Held, no larceny.-People v.Schultz, 71 Mich. 315. On a trial for stealing a yearling, which defendant had previously sold, where he disclaimed all knowledge of such previous sale, it was proper to charge that if he did not know he had executed a bill of sale to the yearling, and if he believed at the time that it was his own property, and that he had the right to sell it, then he would not be guilty-Britt v. State, 21 Tex. App 215 On an indictment for larceny of fence rails the evidence showed that defendant took the rails from a cow-pen openly, in the daytime,in the presence of several witnesses; that defendant had the previous year leased and occupied the place from which he took the rails, and had repaired the pen, using more rails than he was charged with taking Held, that if defendant placed his own rails in the pen for a temporary purpose they remained his property, and he did not commit larceny in taking them.-Wilson v. State, 27 Tex. App. 577.

Owens v. State, 21 Tex. App. 579; Evans v. State, 15 Tex. App. 31. * Benton v. State, 21 Tex. App 554.

* Burton v. State, 21 Tex. App. 554.

Kirsey v. Fike, 29 Ala. 206. See, also, supra § 36.

'Fairy v. State, 18 Tex. App

314; Bell v. State, 7 Tex. App. 25.

anything, he is guilty of a breach of contract, and forfeits all interest in the crop, the entire property in the matured crop vesting in the original tenant; and whatever may be his rights or remedy against the original tenant, he may be convicted of the subsequent larceny of a part of the growing or outstanding crop.'

CHAPTER VII.

LARCENY BY FINDER OF LOST PROPERTY.

§ 49. What is deemed lost property, and when subject to larceny.

50 Finder, when guilty.

51. Finder, when not guilty.

52. Time when intent to steal must be formed.

53 Duty to search for owner.

49. What is deemed lost property, and when subject to larceny. The better opinion is that lost property which has not been abandoned by the owner is the subject of larceny by the finder. The contrary is held in Tennessee, for the reason that to constitute larceny there must be a trespass in taking the property from the actual or constructive possession of some one. The owner is in constructive possession of property so that it is not lost, and is the subject of larceny, when he knows where the property is, so that he would be able to recover the actual possession when he desired, if it were not removed by the thief. Thus, a watch left with a

1 Bonham v. State, 65 Ala 356.

2 Brooks v. State, 35 Ohio St 46.

Pritchett v. State, 2 Sneed 285; 62 Am. Dec 469. The owner of a ring in the District of Columbia, left it by accident in a tub where she had been washing. In ten or fifteen minutes, knowing where it was, she went to get it; but meanwhile it had been taken by the prisoner, who denied the taking of it, concealed it, carried it to Connecticut, and offered it for sale as her own. Held, larceny at common law. -State v. Cummings, 33 Conn.

watchsmith for repair is in the constructive possession of the owner, and the subject of larceny, though thrown upon the pavement by an explosion of gunpowder.' So the placing of a pocket-book upon a table, and neglecting or forgetting to take it away, is not losing it in the sense in which the authorities speak of lost property.'

50. Finder, when guilty. The finder of personal property on the highway, or elsewhere, who knows, or has the means of knowing, the owner, and converts it to his own use, is a thief. If at the time of finding, he has reasonable ground to believe, from the nature of the property or the circumstances under which it is found, that, if he does not conceal but deals honestly with it, the owner will appear or be ascertained, he will be guilty of larceny, if at the time of taking the property into his possession he intends to steal it. Thus, a person who with a felonious intent, takes a purse from a store, where it has been accidentally left, is guilty of larceny.' And so is a servant who picks up a lost ring in the house of her mistress,

1 Pritchett v. State, supra.

* Mayor v. Beasly, 21 Ala. 240.

State v. Weston, 9 Conn. 527; 25 Am. Dec. 46; Com. v. Titus, 116 Mass:42; 17 Am. Rep. 138; State v. Levy, 23 Minn. 104; 23 Am. Rep. 678; Baker v.. State, 29 Ohio 184; Griggs v. State, 58 Ala. 425; 29 Am. Rep. 762; State v.. Clifford, 14 Nev. 72; State v. Pratt, 20 Iowa 267; State v. Bolander, 71 Iowa 706; People v. McGarren, 17 Wend. 460; State v. Ferguson, 2 McMullan 502; Pritchett v. State, 2 Sneed 285; Pyland v. State, 4 Id. 357. Contra, Porter v. State, 1 Mart & Y. 226. The place of finding is material only in determining whether the goods were lost or mislaid or left by mistake of the owner under circumstances which would enable him to return for them. So held, as to a sack of coffee dropped from a wagon in the highway-Griggs v. State, 58 Ala. 425; and as to a bale of compressed cotton, found on a railroad track where there was no crossing.-Rountree v. State, 58 Ala. 381.

+ Brooks v. State, 35 Ohio St. 46; State v. Levy, 23 Minn. 104; Reed v. State, 8 Tex. App. 40; Neely v. State, Id. 64; Tex. Ct. of App. Statum v. State, 9 Tex. App. 273.

'State v. McCann, 19 Mo 249. A person in changing his clothes in the office of his livery stable, unintentionally left his purse containing money lying on an old saddle behind the door, and while he was gone to dinner, the purse and its contents were picked up by a boy in the presence of the defendant, and by his direction, and handed to him. Held, larceny.-Pyland v. State, 4 Sneed, 357; approving Pritchett v. State, 2 Id. 285.