CASES

DETERMINED BY THE

COURT FOR CROWN CASES RESERVED

IN

TRINITY TERM, XXXI VICTORIA.

THE QUEEN v. GLYDE.

Larceny-Lost Property.

The prisoner found a sovereign on a highway, believing at the time that it had been accidentally lost; but, nevertheless, with a knowledge that he was doing wrong, he at once determined to appropriate it, notwithstanding it should afterwards become known to him who the owner was. There was no evidence to shew that the prisoner believed he could ascertain who the true owner was at the time he found the sovereign :

Held, on the authority of Reg. v. Thurborn (1 Den. C. C. 387; 18 L. J. (M.C.) 140), that the prisoner was not guilty of larceny.

The following case was stated by COCKBURN, C.J.:—

William Glyde was convicted before me, at the last assizes for the county of Sussex, on an indictment, in which he was charged with having stolen a sovereign, the property of Jane Austin. It appeared that, on the evening of the 16th of January last, the prosecutrix, being on her way from Robertsbridge to her home at Brightling, and having some money loose in her hand, had occasion, owing to the dirty state of a part of the road, to hold up her dress, and in doing so let fall a sovereign. It being then dark, she did not stop to look for the sovereign; but on the following morning she started to go to the spot, in the hope of finding the lost coin. In the meantime, the prisoner, coming from Robertsbridge towards Brightling, in company with a man named Hilder and his son, and seeing, at the spot where the pro

1868

May 30.

1868

v.

GLYDE.

secutrix had dropped her sovereign, a sovereign lying in the road, THE QUEEN picked it up and put it in his pocket, observing that it was a good sovereign, and would just make his week up. Proceeding onwards, the men soon afterwards met the prosecutrix, then on her way to the spot where the sovereign had been dropped. According to her statement, on meeting the men, she addressed Hilder, whom she knew, and asked, in the hearing of the prisoner, "if he had stumbled on a sovereign," stating that she had lost one and was going to look for it, to which inquiry Hilder answered in the negative. She was, however, contradicted by Hilder and his son, who were called as witnesses for the prosecution, as to any such conversation having taken place. But it was clear that the fact of the sovereign thus picked up by the prisoner being one which had been lost by the prosecutrix was speedily brought to the prisoner's knowledge. The fact of the prosecutrix having lost a sovereign, and of the prisoner having found one, having come to his master's ears, the master asked him if he had found a sovereign, to which he answered that he "was not bound to say." The master further asked, if he had not heard that Mrs. Austin had lost one, to which the prisoner made the same reply. On the master asking whether it would not be more honest to give the sovereign up to her, he answered that "he could just manage to live without honesty." Being asked by a police constable whether he remembered going up the Brightling road and picking up a sovereign, he answered, "I don't know that I did." On the officer saying, "I have been informed by witnesses that you did so; and, if you did, it did not belong to you-more particularly as you know to whom it belonged," the prisoner said he did not want to have anything more to say to the officer, and went into his house. On a subsequent occasion, however, he admitted to the same witness that he had picked up the sovereign. The witness Hilder also stated that the prisoner afterwards came to him, and asked him if he could say that he (prisoner) had picked up a sovereign, and on receiving an answer in the affirmative, said that if that was so he must go to and see the prosecutrix, who had applied to him several times. about it

In summing up to the jury on this state of facts, I told them that where property was cast away or abandoned, any one finding

1868

v.

GLYDE.

and taking it acquired a right to it, which would be good even as against the former owner, if the latter should be minded to THE QUEEN resume it, but that, when a thing was accidentally lost, the property was not divested, but remained in the owner who had lost it, and that such owner might recover it in an action against the finder. As to how far larceny might be committed by a person finding a thing accidentally lost, it depended on how far the party finding believed that the thing found had been abandoned by its owner or not; that, where the thing found was of no value, or of so small value that the finder was warranted in assuming that the owner had abandoned it, he would not be guilty of larceny in appropriating it; or if, not knowing, or not having the means of discovering, the owner, the finder, from the inferior value of the thing found, might fairly infer that the owner would not take the trouble to come forward and assert his right, so that practically there would be an abandonment, and so believing appropriated the thing found as virtually abandoned by the owner, he would not be guilty of larceny. So, although the value of the article might render it impossible in the first instance to presume abandonment by the owner, yet, if, from the fact of no owner coming forward within a sufficient time, the finder might reasonably infer that the owner had abandoned and given up the thing as lost, there would be no criminality in an appropriation of it by the latter. On the other hand, I pointed out that there were things as to which it could not be supposed that they had been intentionally abandoned, or the owner be supposed to have given up his property. Thus, for example, a purse of gold, or a pocket-book containing banknotes, found in the road, could not possibly be supposed to have been intentionally placed there; or a diamond ornament, found outside the door of an assembly room, to have been intentionally dropped by the lady who had worn it; or a box or parcel left in a public conveyance or a hack cabriolet, to have been left with the intention of abandoning the property. In all these cases, as the property remained in the owner, and the presumption of abandonment was plainly negatived by the circumstances, a person finding such an article and appropriating it to himself with an intention of wronging the owner, if he knew who the owner was, or had the means of finding the owner-as where the name and address of

1868

v.

GLYDE.

the owner were on the thing found-or had the means of ascerTHE QUEEN taining the owner, as in the case of a cabman who knew the house at which he had taken up or set down a person by whom an article must have been left in the carriage-would clearly be guilty of larceny. And, even where the finder did not know the owner, if the nature of the thing found precluded the presumption of abandonment, and gave every reason to suppose that the owner would come forward and assert his claim, and the finder nevertheless determined to appropriate the chattel and to keep it, though he should afterwards become aware who the owner was-this, too, if done with the intention of wrongfully depriving the unknown owner of property which the finder knew still to belong to him, would be larceny, provided such intention was contemporaneous with the original taking of possession. I told the jury that, while, to constitute larceny in appropriating an article thus found, there must be a guilty intention of taking that which was known to belong to some one else, and which the party appropriating knew he had no right to treat as his own, this intention might be gathered from the value of the article and, the other circumstances of the case, especially the conduct of the party accused as to concealment or otherwise. In this respect I told them they might properly take into account the conduct of the prisoner, in maintaining silence when he heard the question put by the prosecutrix to Hilder, if they believed that portion of her evidence; or, at all events, in refusing to say whether he had found a sovereign or not, and only acknowledging it when Hilder had told him he was prepared to speak to the fact. As the result of this reasoning, I left it to the jury to say whether the prisoner, on finding the sovereign, believed it to have been accidentally lost, and nevertheless with a knowledge that he was doing wrong, at once determined to appropriate it to himself, and to keep it, notwithstanding it should afterwards become known to him who the owner was; and I told the jury, if they were of that opinion, to find the prisoner guilty. But, inasmuch as there was nothing to shew that the prisoner, on appropriating the sovereign on finding it, had any reason to suppose that the owner would afterwards become known to him, I doubted whether an intention on his part of keeping it, even if the owner

should become known to him-he not believing that the latter

1868

V.

event would come to pass-would amount to larceny. I therefore THE QUEEN thought it right to take the opinion of this Court whether the conviction can be sustained on the facts I have stated.

No counsel appeared for the prisoner.

Lumley Smith, for the Crown. The question is whether a person who picks up an article may be found guilty of larceny, although at the time he does not know, and has no means of knowing, who the owner is. There was evidence in this case to shew that the sovereign was not abandoned, although it was not specifically left to the jury to say whether the prisoner had the means of knowing who the owner was. In Reg. v. Moore (1), on an indictment for stealing a 107. note found by the prisoner in his shop, he was convicted of larceny, although the jury found that at the time he picked it up he did not know, nor had he reasonable means of knowing, who the owner was. It must be admitted, however, that the jury also found, which they have not done here, that the prisoner believed, at the time he picked up the note, that the owner could be found, and that in that case the note was not really lost in the sense in which the sovereign was lost in this case.

[BLACKBURN, J. Can a man be held to be guilty of larceny where the original taking by finding is innocent? In Reg. v. Moore (1), Wightman, J., seems to say that three ingredients are necessary to constitute larceny: that the prisoner intended to appropriate the property from the first; that he believed, at the time he took it, that the owner could be found; and that he acquired the knowledge of who that owner was before he converted it to his own use.]

In Reg. v. Thurborn (2) it was held that, if a person find the chattel of another, and instantly appropriate it, animo furandi, that is, with the intent of usurping the entire dominion over it, but under such circumstances as to warrant a jury in finding that at the time of the appropriation he really believed that the owner could neither find the chattel nor be found himself, such appropriation is not larceny. In Reg v. Preston (3), and Reg v. Christo(1) Leigh & Cave, C. C. 1; 30 L. J. (2) 1 Den. C. C. 387; 18 L. J. (M.C.) (M.C.) 77. 140.

(3) 2 Den. C. C. 353; 21 L. J. (M.C.) 41.

GLYDE.