¶1charging the jury:
¶2Gentlemen of the jury:—John Stevens, the defendant, the prisoner at the bar, is charged with larceny, which is the felonious taking and carrying away of the goods and chattels of another with intent to convert the same to the taker's use without the consent of the owner.
¶3The counsel for the defendant has asked us to charge you that the finder of lost property comes into the possession of the property lawfully, and that he makes no trespass in taking the property into his possession, and the finder of lost property cannot commit larceny by the simple act of finding and taking into his possession.
¶4Clark’s Criminal Law, 255 and 266.
¶5That if the finder of lost property does not know who the property belongs to at the time of finding it and takes it innocently as a simple finder, that no subsequent change of mind and fraudulent appropriation can make him guilty of larceny.
¶6Clark’s Criminal Law, 255-6 and 266-7; People vs. Cogvell, 1 Hill(N. Y.), 94. People vs. Anderson, 14 Johns (N. Y.), 294; Reg. vs. Preston, 5 Cox Crim. Cases, 390; State vs. Roper, 3 Devereux (N. C.), 473; Ransom vs. State, 22 Connecticut, 153; State vs. Conway, 18 Mo., 321; Mayor vs. State (Tenn.) 4 S. W. Rep., 659; Lane vs. People, 5 Gilman, 305.
¶7That if there were no marks upon the lost goods by which the finder could discover the owner of them, or if the finder had no *488knowledge of the owner of them, the finding and retention of them could not constitute the crime of larceny, and that if the jury discovered the same from the facts in evidence, they were to acquit.
¶8That proof must be given of the genuineness of the notes.
¶9State vs. Dobson, 5 Harr., 563.
¶10That lost goods cannot be the subject of larceny.
¶11State vs. Roper, 3 Devereux’s Rep. (N. C.), 473, 476; 14 Johnston (N Y.) 294 (296), People vs. Henderson.
¶12That unless the felonious intent was formed at the time of the finding, the jury are to acquit.
¶13Starck vs. State, 63, Ind., 287.
¶14Gentlemen, these prayers contain, in the main, a correct statement of the law, if the case be a simple finding. But not every one who finds and keeps goods that are lost or laid down is innocent. The general rule governing such cases is this: if the finder knows who the owner of the lost chattel is, from any -marks upon it, or if from the circumstances under which it was found, the owner could have reasonably been ascertained, then the fraudulent conversion to the finder’s use is sufficient evidence to justify the jury in finding a felonious intent.
¶15Should it be found, therefore, when a person picks up goods that have been laid down or lost, that he conceals them, that at the time he discloses a knowledge of the owner, and states that if they were the goods of a certain one, he would give them to him, and if they were the goods of anyone else they would have to prove it —if it should be found that the articles so found when asked for were not disclosed, but concealed, and that the party taking the goods is actually talking to the owner of them and denies the possession of the goods, we charge you that in such a case it would not be a case of ordinary finding, but you should take into consideration all such circumstances attending the finding of the goods and say whether or not at the time of the alleged finding he intended to convert them to his own use. Such circumstances would be evidence from which you might reasonably infer felonious intent.
¶16*489The rule is well stated in 3 Greenleaf on Evidence, Sec. 159, as follows: “If the finder knows who is the owner of the lost chattel, or if, from any mark upon it, or from the circumstances under which it was found, the owner could reasonably have been ascertained, then the fraudulent conversion of it to the finder’s use is sufficient evidence to justify the jury in finding the felonious intent constituting a larceny.”
¶17You must determine from the evidence in this case whether this was an innocent taking of the goods; a finding of the same without any reasonable means of knowing the owner and under circumstances such as would not amount to a felonious taking.
¶18Verdict, not guilty.