The State vs. James Ferguson, 2 McMul. 502

Curia, per Earle, J. The prisoner found a sum of money on the highway, which he soon after converted to his own use, with various circumstances of falsehood and concealment.

On his trial for larceny, the Judge instructed the jury “ if the prisoner, at the time of finding the pocket book, and before he removed the money, knew it to be the property of the prosecutor ; or not knowing it to be the property of the prosecutor, if, at the time of removing the money, he did it with the intent to convert it to his own use, it was larceny.” It is on the latter paragraph of this instruction, that the doubt of the court arises. Of the correctness of the first part of the instruction, no question exists in the mind of the court.

And if the same verdict had been found on that alone, the court might have been entirely satisfied with it. On the other branch of the instruction, the court is divided ; on that point no opinion is expressed. But as it is possible the verdict may have been influenced, in some degree, by that instruction, the court is unwilling that the defendant should suffer on a verdict, when the law is at all doubtful. A new trial is therefore ordered, without prejudice. Gawtt, Richardsow, O’Neall and Butler, JJ. concurred.