State v. . England , 53 N.C. 399 ( 1861 )

The jury found the following facts as a special verdict viz: "The defendant is indicted for stealing a shirt; the article alleged to have been stolen was with other articles in a carpetbag which was lost by the prosecutor on the highway leading from Morganton to Marion; the defendant resided on the highway, and the prosecutor, in passing his residence, informed the defendant that between his house and that of one William Murphy, who lived on the same road about a mile (400) and a half from the defendant's, he had lost his carpetbag, and requested him to get it and give it to one Halliburton, who lived in the village of Marion; the defendant found the carpetbag and took it into possession, and on application to him for it stated that he did not have it and had not found it; on search being made, it was found concealed in a bag, which was tied up and secreted on his premises; some of the articles contained in the carpetbag were missing, but whether they were taken out by the defendant did not appear."

His Honor being of opinion on the special verdict that the defendant was not guilty of larceny, gave judgment that he be discharged, from which the solicitor for the State appeared. It is conceded, and, as we think, properly, by the Attorney-General, upon the facts found by the special verdict, the defendant is not guilty of stealing the shirt of the prosecutor, as charged in the bill of indictment. The taking of the carpetbag in which the shirt and other articles were contained was not a trespass, because it was done by the express directions of the owner, and the defendant, instead of being a trespasser by such taking, became a bailee of the article for the purpose of carrying and delivering it to a certain person in the village of Marion. The subsequent concealment of the carpetbag before the trust created by the bailment was performed, even if done animo furandi, was not a larceny, but only a breach of trust. This doctrine has been established by many decision, of which a collection may be found in Roscoe's Criminal Evidence, beginning at page 596 (3 Am. Ed.).

We have assumed that the carpetbag was taken by the defendant under a bailment because the special verdict finds such to have been the fact, and no intendment can be raised that the defendant formed the (401) design before he found the article to take and appropriate it to his own use. Whether the testimony would have justified the jury in taking the latter view, and finding accordingly, and if so, what would have been the legal consequences of it, is not our province to decide.

The terms of the special verdict preclude another view of the case which might have been adverse to the defendant: It seems that the carpetbag, when found concealed on the defendant's premises, had been rifled, and a part of its contents taken out and carried away; but whether the shirt was one of the missing articles is not stated, thought it is stated as a part of the verdict that it did not appear that the missing articles were taken by the defendant. Had the jury found that they were taken animo furandi by him, it might have been contended that he was guilty of larceny, upon the distinction thus stated by Lord Hale: "If a man deliver goods to a carrier to carry to Dover and he carry them away, it is no felony; but if the carrier have a bale or a trunk with goods in it delivered to him, and he break the bale or trunk and carry the goods away animo furandi, it is felonious taking" ; see 1 Hale's P. C., 504, 505; Ros. Crim. Ev., 598. The grounds upon which this distinction is based, and many of the cases given in illustration of it, may be found cited and commented upon in the latter work, but it is unnecessary for us to pursue and inquire here, for the reason already stated that the terms of the special verdict prevent the question from being presented.

There is no error in the judgment from which the appeal is taken.

PER CURIAM. Affirmed.

Cited: S. v. Fann, 65 N.C. 319; S. v. McRae, 111 N.C. 666.

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