Commonwealth v. Brigham , 123 Mass. 248 ( 1877 )

Colt, J.

In the prosecution of offences relating to or affecting real or personal property, it is sufficient to prove that the person alleged to be the owner had actual or constructive possession, or had general or special property in the whole or any part thereof. Gen. Sts. c. 172, § 12.

At the time of the alleged larceny, the attaching officer had special property in and possession of the goods stolen, and was correctly described as the owner, unless before that time he had lost his title and possession by an abandonment of his attachment. Whether there has been in any given case an abandonment of an existing attachment, is ordinarily a question of fact to be submitted to the jury with proper instructions. Gordon v. Jenney, 16 Mass. 465, 469. In the case at bar, the facts relied on do not, as matter of law, show an abandonment. The court properly declined to rule that the delivery of one of the keys of the building in which the property was stored, to the owner of other personal property stored in the same building, would be such abandonment. The goods attached remained without objection in the mill where they were attached, but the building was kept locked and the keys were taken by the officer, who occasionally visited the place to look after the property. He afterwards delivered one of the keys to an owner of part of the machinery in the mill, who was in no way connected with the defendants named in the writ on which the property was attached, and who did not carry on business in or otherwise occupy the mill. There was evidence that the officer occupied the mill as a storehouse at the time of the larceny, and that his occupation was exclusive except as above stated.

If the delivery of one of the keys of the mill to a third party under these circumstances had any tendency to show an abandonment, it is enough that the circumstance was submitted to the jury with the other evidence bearing on the question, with instructions which do not appear to have been objected to, Train v. Wellington, 12 Mass. 495. Bagley v. White, 4 Pick. 395. Boynton v. Warren, 99 Mass. 172.

The ruling of the court, “ that the evidence was sufficient to authorize the jury to find that the alleged ownership of the property by Keene had been proved,” made in direct response to a request by the defendant for a contrary ruling, cannot be treated by him as a violation of the statute which forbids the court to charge the jury with respect to matters of fact; with equal propriety it might be claimed that a ruling in favor of the admissibility of any specific item of evidence was such violation. The statute cannot receive such an unreasonable interpretation. Gen. Sts. c. 115, § 5. Exceptions overruled.