Page:Federal Reporter, 1st Series, Volume 8.djvu/259

 UNITED STATES V. BTONE. 245 �goods is enjoined by the oldest rules of the moral law. Deut. xxii : 1-3. Every instinct of right and fair dealing suggests their return, and this statute was enacted to enforce that duty. Ignorance of a fact may sometimea be taken as evidence of a want of criminal intent, but not ignorance of the law ; nor will any belief, not even a religioua belief, in the right of the act excuse the crime. Reynolds v. U. S. 98 U. S. 145, 167. There is a principle, undoubtedly often misapplied, I think, in the law of larceny that excuses the taking or avoids the criminal intent where there is a fair color of claim or right to the property. For example, in the case already put, if one takes money from under a ^iliow at night by stealth, with the inten- tion by that means to recover that which had been before in his be- lief wrongfully taken from him, there would be no larceny, although the money was not in fact the same, nor was there in truth any wrong done to him. Merry v. Green, 7 Mees. & W. 627; State v. Homes, 17 Mo. 379; State v. Conway, 18 Mo. 321; State v. Deal, 64 N. G. 272; Herher v. State, 7 Tex. 69; Bex v. Hall, 3 G. & P. 409; 1 Whart. Grim. Law, § 83; 2 Whart. Crim. Law, §§ 1770, 1785; 2 Bish. Crim. Law, § 851, This color of right, however, must come from some daim to the property itself, de hors this act of taking, and not, as I apprehend, be solely predicated upon an erroneous belief that what is known to belong to another may be appropriated to one's own use without his consent, or without compensation, because of the situa- tion in which it is found. Nor will any usage or custom justify the taking. 3 Bish. Crim. Law, § 852; 1 Whart. Crim. Law, § 83e. Mr. Eussell mentions the taking of corn by gleaning, under an erroneous notion which universally prevails among the lower classes that they have a right to glean, and differs with Woodfall on his statement that it was larceny. 2 Euss. Grimes, (8th Am. Ed.) 10. In Com. v. Doane, 1 Cush. 5, however, it was held that a custom by officers to appropriate small parts of the cargo would not establish a claim of right. �Buit while I am inclined to the opinion that on the facts of this case a common-law indictment for larceny, pure and simple, might be sustained, if the statute had intended only to declare that offence as applicable to wrecke, as the statute was not so interpreted and the jury was not instructed on that theory, the conviction cannot be sustained on that ground, because it was their province to deter- mine whether the facts constituted larceny. It is, then, still neees- sary to inquire whether the charge has correctly interpreted the stat- ut« as one declaring an offence distinct from larceny, or rather one ��� �