Page:Federal Reporter, 1st Series, Volume 8.djvu/258

 214 FEDERAL REI>OBTER. �2 Pars. Ship. & Mm. 288, 292; 1 Abb. Dict. word "Derelict." And if they can ever belong to the first finder, it is only wheu they are both derelict and abandoned. Weyman v. Hurlbut, 13 Ohio, 81. Wreek is not properly so called if the real owner is known, and is not forfeited till a year and a day. Id.; Beg. v. Thwrhorn, 1 Den. 387; 2 Ben. & Heard, Lead. Crim. Cas. 409, 411. The floating goods are sti]l in the constructive possession of the owner or the vessel, more like those in a house on fire, and are not abaudoned because in peril. If one remove them for preservation, intending to keep them for the owner, but afterwards secrete and appropriate them, there is no lar- ceny at commou law, but only a breach of trust. Rex v. Leigh, 2 East, P. C, 694; 2 Bish. Crim. Law, § 837; 2 Ben, & Heard, Lead. Crim. Cas. 426. If, however, the intent at the time of taking had been to appropriate the goods to her own use, the judgment in that case would have been different, nor would the defendant have been excused upon any theory that she entertained a honafide belief that fthen a house was on fire the goods in it or taken from it belong to any one who secured possession of them, or that she did not think it stealing and did not intend to steal, but only to take what she sup- posed she might rightfully take. That would have been trying the act of the accused by her own mental characterization of that act. On that theory, if one takes money from under a pillow at night, and by stealth, he might have his crime excused by showing by his own testimony or otherwise his state of mind on the subject, and that he entertained an honest belief that he could do that thing without any wrong to the owner. This seems to me the resuit of the argument made for the defendant here, when we are asked to hold that, if he believed that he had a right to take these goods for his own use, he is not guilty. �"That there is a prevalent belief along this river that goods float- ing from a wreck may be appropriated by those who "capture" them from the water is, perhaps, true; and it may be that goods so sit- uated are supposed to belong to the first taker by those who know better than to apply the same rule of conduct to goods Ibst or in peril by fire or other disaster on land. But it seems to me plain that this preposterous elaim of right cannot serve to excuse the taking either at common law or under the statute. I do not see how any man whose moral sensibilities are not blunted by the temp- tation always afforded by such disasters, whether on land or sea, and who is not wholly demoralized in the presence of the temptation, can fail to recognize the wrong in it. The duty of restoring the ��� �