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portavit was the old law-latin. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carrying away. As if a man be leading another's horse out of a close, and be apprehended in the fact ; or if a guest, stealing goods out of an inn, has removed them from his chamber down stairs : these have been adjudged sufficient carryings away, to constitute a larceny (g). Or if a thief, intending to steal plate, takes it out of a chest in which it was, and lays it down upon the floor, but is surprised before he can make his escape with it; this is larceny (n).
*3. This taking, and carrying away, must also be felonious ; [*232] that is, done animo furandi: or, as the civil law expresses it, lucri causa (s) (8). This requisite, besides excusing those who labour under in
nies, and where prisoner had lifted up bag 307. 3 Burn J. 24th edit. 209. (See a late from the bottom of a boot of a coach, but case, Rus. & Ry. C. C. 118. under very partiwas detected before he had got it out, it did cular circumstances.) It is sufficient if the not appear that it was entirely removed from prisoner intend to appropriate the value of the the space it at first occupied in the boot, but chattel and not the chattel itself to his own use, the raising it from the bottom had completely as where the owner of goods steals them from removed each part of it from the space that his own servant or bailee in order to charge specific part occupied, this was held a com- him with the amount. 7 Hen. VI. f. 43. The plete asportation. I Ry. and Moody, C. C. intention must exist at the time of the taking, 14. Bui if the defendant merely change the and no subsequent felonious intention will position of a package from lying end ways to render the previous taking felonious. lengthways, for the greater convenience of tak. We have seen that a taking by finding, and ing out its contents, and cuts the outside of it a subsequent conversion, will not amount to a for that purpose, but is detected before he has felony. Inst. 108. Hawk. c. 33, s. 2. 2 taken any thing, there will be no larceny com- Russ. 1041. But if the goods are found in the mitted. Id. ibid. in notes. Where it is one place where they are usually suffered to lie, continuing transaction, though there be seve. as a horse on a common, cattle in the owner's ral distinct asportations in law by several per. fields, or money in a place where it clearly apsons, yet all may be indicted as principals who pears the thief knew the owner to have conconcur in the felony before the final carrying cealed it, 1 Hale, 507,508. 2 East P. C. 664; away of the goods from the virtual custody of or if the finder in any way know the owner, the owner, 2 East P. C. 557; but two cannot or if there be any mark on the goods by which be convicted upon an indictment charging a the owner can be ascertained, see 3 Burn J. joint larceny, unless there be evidence to sa- 24th edit. 213, the taking will be selonious. tisfy a jury that they were concerned in a joint So if a parcel be left in a hackney coach, and taking. 2 Stark. on Evidence, 840. If one the driver open it, not merely from curiosity, steal another man's goods, and afterwards but with a view to appropriate part of its conanother stealeth from him, the owner may pro- tents to his own use, or if the prosecutor order secute the first or the second felon at his him to deliver the package to the servant, and choice. Dalt. c. 162. There is no occasions he omits so to do, he will be guilty of felony. that the carrying away be by the hand of the 2 East P. C. 664. 1 Leach, 413, 15, and in party accused, for if he procured an innocent notis. agent, as a child or a lunatic, to take the
pro. Where the taking exists, but without fraud, perty, or if he obtained it from the sheriff by a it may amount only to a trespass. This is also replevin, without the slightest colour of title, a point frequently depending on circumstantial and with a felonious design, he will himself be evidence, and to be left for ihe jury's decision. a principal offender. Hawk. b. 1. c. 33. s. 12. Thus, where the prisoners entered another's
(8) The selonious quality consists in the in- stable at night and took out his horses, and tention of the prisoner to defraud the owner, rode them thirty-two miles, and left them at and to apply the thing stolen to his own use; an inn, and were afterwards found pursuing and it is not necessary that the taking should their journey on foot, they were held to have be done lucri causa; taking with an intent to committed only a trespass, and not a felony. destroy will be sufficient to constitute the of- 2 East. P. C. 662. It depends also on circumfence if done to serve the prisoner or another stances what offence it is to force a man in person though not in a pecuniary way. R. & R. the possession of goods to sell them; if the C. C. 292. In a late singular case it was de- defendant takes them, and throws down more termined, that where a servant clandestinely than their value, it will be evidence that it took his master's corn, though to give it to was only trespass ; if less were offered, it his master's horses, he was guilty of larceny, would probably be regarded as felony. I East the servant in some degree being likely to di. Rep. 615. 636. And it seems that the taking minish his labour thereby. R. & R. C. C. may be only a trespass, where the original as.
capacities of mind or will (of whom we spoke sufficiently at the entrance of this book) (k), indemnifies also mere trespassers, and other petty offenders. As if a servant takes his master's horse without his knowledge, and brings him home again: if a neighbour takes another's plough that is left in the field, and uses it upon his own land, and then returns it: if under colour of arrear of rent, where none is due, I distrain another's cattle, or seize them: all these are misdemeanors and trespasses, but no felonies (?). The ordinary discovery of a felonious intent is where the party doth it clandestinely; or, being charged with the fact, denies it. But ihis is by no means the only criterion of criminality : for in cases that may amount to larceny the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those, which may evidence a selonious intent, or animum furandi : wherefore they must be left to the due and attentive consideration of the court and jury.
4. This felonious taking and carrying away must be of the personal goods of another : for if they are things real, or savour of the reality, larceny at the common law cannot be committed of them (9). Lands, tenements, and hereditaments (either corporeal or incorporeal) cannot in their nature be taken and carried away. And of things likewise that adhere to the freehold, as corn, grass, trees, and the like, or lead upon a house, no larceny could be committed by the rules of the common law : but the severance of them was, and in many things is still, merely a trespass which depended on a subtilty in the legal notions of our ancestors. These things were parcel of the real estate ; and therefore, while they continued so,
could not by any possibility be the subject of theft, being ab[*233] solutely fixed and immoveable (m). And if they were severed
by violence, so as to be changed into moveables ; and at the same time, by one and the same continued act, carried off by the person who se. vered them; they could never be said to be taken from the proprietor, in this their newly acquired state of mobility (which is essential to the nature of larceny), being never, as such, in the actual or constructive possession of any one, but of him who committed the trespass. He could not in strictness be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods. But if the thief severs them at one time, whereby the trespass is completed, and they are converted into personal chattels, in the constructive possession of him on whose soil they are left or laid; and come again at another time, when they are so turned into personalty, and takes them
(m) See Book II. p. 16.
(k) See page 20.
sault was selonious. Thus, if a man searches 82. 2 Raym. 276. 2 Vent. 94. A taking by the pockets of another for money, and finds mere accident, or in joke, or mistaking anonone, and afterwards throws the saddle froin ther's property for one's own, is neither legally his horse on the ground, and scatters bread nor morally a crime. 2 Hale, 507. 509. from his packages, he will not be guilty of (9) By statute 7 and 8 Geo. IV. c. 29,9 23, robbery, 2 East P. C. 662, though he might the stealing any description of writings relatcertainly have been indicted for feloniously ing to the title of real estates is punishable assaulting with intent to steal, for that offence with transportation for seven years, or with was complete.
fine and imprisonment at the discretion of the The openness and notoriety of the taking, court; and, by 9 24, these provisions are not where possession has not been obtained by to deprive the party aggrieved of the remedies force or stratagem, is a strong circumstance he now has, at law or in equity. This enactto rebut the inference of a felonious intention, ment is new. See 3 Inst. 109; I Hale, 110. 1 Hale, 507. East P. C. 661, 662. ; but this See note 1, p. 229. alone will not make it the less a felony. Kel.
away; it is larceny : and so it is, if the owner, or any one else, has severed them (n). And now by the statute 4 Geo. II. c. 42. to steal, or rip, cut or break with intent to steal, any lead, or iron bar, rail, gate, or palisado, fixed to a dwelling-house or out-house, or in any court or garden thereunto belonging, or to any other building, is made felony, liable to transportation for seven years (10) ; and to steal, damage, or destroy underwood or hedges, and the like(11), to rob orchards or gardens of fruit growing therein (12), to steal or otherwise destroy any turnips, potatoes, cabbages, parsnips, pease, or carrots, or the roots of madder when growing, are (o) punished criminally (13), by whipping, small fines, imprisonment, and satisfaction to the party wronged, according to the nature of the offence. Moreover, the stealing by night of any trees, or of any roots, shrubs, or plants of the value of 58. is by statute 6 Geo. III. c. 36. made felony in the principals, aiders, and abertors, and in the purchasers thereof, knowing the same to be stolen : and by statutes 6 Geo. III. c. 48. and 13 Geo. III. c. 33. the stealing of any timber trees therein specified (p), and of any root, *shrub [*234] or plant, by day or night, is liable to pecuniary penalties for the two first offences, and for the third is constituted a felony liable to transportation for seven years (14). Stealing ore out of mines is also no larceny, upon the same principle of adherence to the freehold ; with an exception only
(p) Oak, beech, chesnut, walnut, ash, elm, cedar, 15 Car. II. c. 2. 31 Geo. fir, asp, lime, sycamore, birch, poplar, alder, larch, II. c. 35. 6 Geo. III. c. 48. 9 Geo. III. c. 41. 13 maple, and hornbeam.
(n) 3 Inst. 109. Hal. P. C. 510. (0) Stat. 43 Eliz. c. 7.
Geo. lll. c. 32.
(10) By statute 7 and 8 Geo. IV.c. 29, 944, value of the articles stolen ; and the second stealing, ripping, cutting, or breaking with offence is felony, punishable as in the case of intent to steal, any glass or woodwork belong. simple larceny. ing to any building, or any utensil or fixture (13) By 7 and 8 Geo. IV. c. 29, 9 43, the made of metal or other material fixed in or to first offence is punishable with hard labour any building whatsoever, or metal fixtures in and imprisonment not exceeding one month, land being private property, or for a fence to or with a fine not exceeding 11., besides the any house, garden, or area, or in any square, value of the articles stolen, and the second &c. is a felony punishable as in the case of offence with whipping, and imprisonment for simple larceny:
a term not exceeding six months. The words (11) By statute 7 and 8 Geo. IV. c. 30, 9 of the Act are stealing or destroying “any 19, persons maliciously destroying or damag. cultivated root or plant used for the food of ing any trees, shrubs, or underwood, grow. man or beast, or for medicine, or for distilling, ing in any park, pleasure-ground, garden, or for dyeing, or for or in the course of any orchard, or avenue, in case the injury exceeds manufacture, and growing in any land open the sum of 11.,) shall be guilty of felony, and or enclosed not being a garden, orchard, or be punished with transportation for seven nursery.ground.” years, or imprisonment not exceeding two (14) By 7 and 8 Geo. IV. c. 29, $ 38, peryears, with public whipping in addition; and sons stealing or destroying with intent to committing the offence on trees, &c. growing steal, any tree, shrub, or underwood, growing elsewhere, (where the injury exceeds 5l.) is in any park, pleasure.ground, garden, or near subject to the same punishment. And by Ø houses, (where the injury exceeds the sum of 20, destroying such property wheresoever Il.) are guilty of felony, and liable to be pugrowing, of any value above one shilling, nished as in cases of simple larceny; and renders the offender liable to a fine of 5l. for stealing, or damaging with intent to steal, the first offence; to hard labour and imprison- such property elsewhere, above the value of ment not exceeding twelve months for the 51. is declared felony, and liable to the same second offence, with whipping in addition; punishment. And, by 0 39, stealing, or daand to transportation or imprisonment as in maging with intent to steal, any trees, shrubs, the last section, as for a felony, for a third of- &c., wheresoever growing, to the value of one fence.
shilling, is punishable with a fine of 51. for (12) By 7 and 8 Geo. IV. c. 29, $ 42, steal. the first offence; with hard labour, whipping, ing or destroying any plant, root, fruit, or ve- and imprisonment, not exceeding twelve getable production, growing in any garden, months, for the second offence; and the third orchard, nursery.ground, hot-house, green- offence is felony, punishable as in case of house, or conservatory, is punishable, for a simple larceny. There seems to be no pu. first offence, with imprisonment and hard la- nishment if the property stolen or destroyed be bour, not exceeding six calendar months, or a under the value of a shilling. fine not exceeding 201., over and above the VOL. II.
to mines of black lead, the stealing of ore out of which, or entering the same with intent to steal, is felony, punishable with imprisonment and whipping, or transportation not exceeding seven years; and to escape from such imprisonment, or return from such transportation, is felony without benefit of clergy, by statute 25 Geo. II. c. 10 (15). Upon nearly the same principle the stealing of writings relating to a real estate is no felony; but a tres
pass (7): because they concern the land, or (according to our technical language) savour of the reality, and are considered as part of it by the law : so that they descend to the heir together with the land which they concern (r).
Bonds, bills, and notes, which concern mere choses in action, were also at the common law held not to be such goods whereof larceny might be committed ; being of no intrinsic value (s); and not importing any property in possession of the person from whom they are taken. But by the statute 2 Geo. II. c. 25. they are now put upon the same footing, with respect to larcenies, as the money they were meant to secure (16), (17). By statute 15 Geo. II. c. 13. officers or servants of the bank of England, secreting or embezzling any note, bill, warrant, bond, deed, security, money, or effects intrusted with them or with the company, are guilty of felony without benefit of clergy (18). The same is enacted by statute 24 Geo. II. c. 11. with respect to officers and servants of the south-sea company. And by statute 7 Geo. III. c. 50, if any officer or servant of the post-office shall secrete, embezzle, or destroy any letter or pacquet, containing any bank note
or other valuable paper particularly specified in the act, or shall [*235] steal the same out of any letter or *pacquet, he shall be guilty of
felony without benefit of clergy. Or, if he shall destroy any letter or pacquet with which he has received money for the postage, of shall advance the rate of postage on any letter or pacquet sent by the post, and shall secrete the money received by such advancement, he shall be guilty of single felony (19). Larceny also could not at common law be committed of treasure-trove or wreck, till seized by the king or him who hath the franchise, for till such seizure no one hath a determinate property therein. But, by statute 26 Geo. II. c. 19. plundering or stealing from any ship in distress (q) 1 Hal. P. C. 510. Stra. 1137.
(s) 8 Rep. 33. (T) See Book II. page 438.
(15) By 7 and 8 Geo. IV. c. 29, 9 37, steal. able to bearer, is not a valuable security with. ing or severing with intent to steal, any ore, in the meaning of the Act. Rex v. Yates, or other substance, from certain mines, is fe- Car. C. L. 273, 233. lony, and punishable as in case of simple lar- (18) See note 5, p. 231, and the statute there ceny: The 25 Geo. II. c. 105, is repealed by referred to. 7 and 8 Geo. IV. c. 27.
(19) See 5 Geo. III. c. 25; 42 Geo. III. c. (16) See 2 R. S. 679, $ 66, &c.
81 ; and 52 Geo. III. c. 143, with respect to (17) Repealed by 7 and 8 G. IV. c. 27; and these offences; by the latter of which sta. by 7 and 8 G. IV. c. 29, 95, persons stealing tutes, the provisions of the former are incorpo. any tally, order, or other security, either puh. rated, and accessaries before the fact are oust. lic or private, relating to this country, or to ed of clergy, and may be tried before the princiany foreign state, or any debenture,' deed, pal is convicted. In a case under 7 Geo. III. c. bond, bill, note, warrant, order, or other secu. 50, where a person was indicted as charger rity for money, or any order for the delivery of and sorter, and was acquitted on this special goods, shall be guilty of selony, and punished count, it was held could not be con. as though they had stolen any chattel of equal victed on a general count as a person employ. value, according to the interest the parties ed in the post-office, on evidence that he was have in the securities stolen: and all the docu- no otherwise employed than as a sorter. ments enumerated in the Act shall be deem. Shaw's case, 2 East, P. C. 580. A bill of ex. ed to be included in the words " valuable se. change may be laid as a warrant for the payment curity."
of money within that statute. Willoughby's A check on a banker, written on unstamped case, 2 East, P. C. 581. paper, payable to D. F. J., and not made pay.
(whether wreck or no wreck) is felony without benefit of clergy: in like manner, as, by the civil law (s), this inhumanity is punished in the same degree as the most atrocious theft (20).
Larceny also cannot be committed of such animals, in which there is no property either absolute or qualified ; as of beasts that are ferae naturae, and unreclaimed, such as deer, hares, and conies, in a forest, chase, or warren ; fish, in an open river or pond : or wild fowls at their natural liberty (t.) But if they are reclaimed or confined, and may serve for food, it is otherwise even at common law : for of deer so inclosed in a park that they may be taken at pleasure, fish in a trunk, and pheasants or partridges in a mew, larceny may be committed (u). And now, by statute 9 Geo. I. c. 22. to hunt, wound, kill, or steal any deer; to rob a warren ; or to steal fish from a river or pond (being in these cases armed and disguised); also to hunt, wound, kill, or steal any deer, in the king's forests or chases inclosed, or in any other inclosed place where deer have been usually kept; or by gift or promise of reward to procure any person to join them in such unlawful act; all these are felonies without benefit of clergy (21). And the statute 16 Geo. III. c. 30. enacts that every unauthorized person, his aiders and abettors, who shall course, hunt, shoot at, or otherwise attempt to kill, wound, or destroy any red or fallow deer in any forest, chase, purlieu, or ancient walk, or in any inclosed park, paddock, wood, or other ground, where deer are usually kept, shall forfeit the sum of 201., or for [*236] every deer actually killed, wounded, destroyed, taken in any toil or snare, or carried away, the sum of 301., or double those sums in case
tho offender be a keeper : and upon a second offence (whether of the same or a different species), shall be guilty of felony, and transportable for seven years. Which latter punishment is likewise inflicted on all persons armed with offensive weapons, who shall come into such places with an intent to commit any of the said offences, and shall there unlawfully beat or wound any of the keepers in the execution of their offices, or shall attempt to rescue any person from their custody. Also by statute 5 Geo. III. c. 14. the penalty of transportation for seven years is inflicted on persons stealing or taking fish in any water within a park, paddock, garden, orchard, or yard : and on the receivers, aiders, and abettors : and the like punishment, or whipping, fine, or imprisonment, is provided for the taking or killing of conies (v) by night in open warrens : and a forfeiture of five pounds to the owner of the fishery, is made payable by persons taking or destroying (or attempting so to do) any fish in any river or other water within any inclosed ground, being private property (22). Stealing hawks, in disobedience to the rules prescribed by the statute 37 Edw. III. c. 19, is also felony (w) (23). It is also said (x) that, if swans be lawfully marked, it is felony to steal them, though at large in a public river ; and that it is likewise felony to steal them, though unmarked, if in any private river or pond; otherwise it is
(3) Cod. 6. 2. 18.
(u) See stat. 22 & 23 Car. IJ. c. 25.
(20) Repealed by 7 and 8 Geo. IV. c. 27; ers in addition. and by 7 and 8 Geo. IV. c. 29, 017, stealing (21) Repealed by 7 and 8 Geo. IV. c. 27, goods or merchandise from any vessel, barge, vide note (3) ante, page 144. or boat, in any port, river, or canal, or from (22) These are also repealed. See note (3), any dock, wharf, or quay adjacent, is punish- ante 144. able with transportation for life, or not less (23) Repealed by 7 and 8 Geo. IV. c. 27, than seven years, or imprisonment not exceed- see post, note (25). ing four years, with whipping to male offend