Page:Federal Reporter, 1st Series, Volume 8.djvu/257

 XJNITED STATES V. STOHB. 243 " (10) In considering the confession testified to by Bennett, you sbould con- sider every part of it together, and should not arbitrarily accept as true one part and discard as false another. And, if such confession relates alone to goods taken from the texas of the steamer Ticksburgh, it can only be con- sidered with reference to those counts which charge plundering and stealing from the vessel, and it would not have a tendency to show that he was guilty of stealing or plundering goods belonging to the Viclisburgh, but which were not upon the boat, and such confession should not be considered under the counts charging a plundering or stealing of goods belonging to said steamer. " (11) If under the proof it appears to you that the defendant, in company with Darnell, Rainey, and" "Westmoreland, went upon the river and caught goods floating from the wreck, and afterwards divided them among them- selves in good faith, supposing they had a right so to do, and the defendant, within a reasonable time thereafter, reported to the agent or representative of the ovyners of the goods his liaving in his possession the goods retained by him as his share, then no conclusion unfavorable to him can be drawn either from the faet of such division having been made, or from his failure to report the goods falling to the share of Rainey, Darnell, and Westmoreland." W. W. Murray, Dist. Att'y, and John B. Clough, Asst. Dist. Att'y, tor the United States. Metcalf & Walker and Luke E. Wright, for defendant. Hammond, D. J. The court is satisfied that the construction put upon the Revised Statutes (section 6358) is the correct one. I can- not consent to emaseulate this statute by whittling it down by con- struction to the paltry proportions of larceny of lost goods on land, as understood at common law ; and certainly not to the once still narrower doctrine of our state that there can be no larceny of lost property, which bas everywhere been repudiated as unsound, and is now changed by statute. T. & S. (Tenn.) Code, 4685; 2 King Dig. (2d Ed.) tit. "Larceny," §§ 1986, 1992; 2 Ben. & Heard, Lead. Crim. Cas. (2d Ed.) 409, 426; 1 Crim. Law Mag. 209, 214; 2 Whart. Crim. Law, (7th Ed.) §§ 1791 et seq.,- la. § 1867; 2 Bish. Crim. Law, (6th Ed.) § 758, note; par. 17, § 838; § 880 et seq. I am of opin- ion, therefore, that the instructions asked by the defendant, defining larceny and the specifie intent necessary to constitute that crime, and applying it to goods "floating in the water, at the time when they had escaped from the custody and control of the crew of the steamer," were properly refused. In the first place, goods so situated are neitherlost nor abandoned, in the circumstances of this case, while floating near a recent wreck to which they belong, with full knowledge on the part of those who take them that they do so belong. Even in the eyes of the common law they are not lost, but certainly not in those of the maritime law.