Wonson v. Sayward , 30 Mass. 402 ( 1832 )

Shaw C. J.

drew up the opinion of the Court. The only question in the present case is, whether there was sufficient evidence to go to the jury, in support of this action of the case for slander ; and this depends upon the question, whether the words spoken imputed to the plaintiff an indictable offence, because if they did, the words are actionable in themselves. It was contended that they did not impute a charge of felony, because a dead man can have no property, and no person can be indicted for larceny upon proof of having taken articles from the body of a dead man.

But the. Court are of opinion, that this position cannot be maintained. The words proved have a tendency to show that the defendant intended to charge the plaintiff with having furtively taken the boots from the body of a dead man, drowned and driven ashore from a wreck, and appropriated them to his own use. Such an act, in point of law, might be a felony, and indictable and punishable as such.

It is contended that the boots could not be averred to be the property of any one, and so in legal contemplation could not be the subject of larceny, but we think it otherwise. The circumstances would have a strong tendency to show that the boots were not derelict and had not been voluntarily abandoned by the owner, and being attached to the body of the deceased, that they were his property at the time of his decease. If an administrator had been already appointed at the time of the taking, the property had vested in him ; and if one should be afterwards appointed, it would be deemed to have vested in him by relation, from the death of the intestate ; and in either case the boots might be averred to be the property of the administrator. The boots therefore were the property of some one, not the plaintiff, at the time of the alleged taking, in respect to which a larceny might be committed; and this rule is important, as it applies to a vast amount of wrecked property, where the owners perish by the same disasters, by which the property is wrecked. If then the plaintiff had in fact taken the boots under such circumstances animo furandi, it would have been a felony ; and if the defendant intended by the words used, to charge this offcnce, which must be judged of by the accompanying words, and the circumstances under which they were spoken, the words would be actionable.

Nonsuit taken off and a new trial granted.