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 (h). *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 (i) (8). This requisite, besides excusing those who labour under in (g) 3 Inst. 108, 109. (h) 1 Hawk. P. C. 93. nies, and where prisoner had lifted up a bag from the bottom of a boot of a coach, but was detected before he had got it out, it did not appear that it was entirely removed from the space it at first occupied in the boot, but the raising it from the bottom had completely removed each part of it from the space that specific part occupied, this was held a complete asportation. 1 Ry. and Moody, C. C. 14. But if the defendant merely change the position of a package from lying end ways to lengthways, for the greater convenience of tak ing out its contents, and cuts the outside of it for that purpose, but is detected before he has taken any thing, there will be no larceny committed. Id. ibid. in notes. Where it is one continuing transaction, though there be several distinct asportations in law by several persons, yet all may be indicted as principals who concur in the felony before the final carrying away of the goods from the virtual custody of the owner, 2 East P. C. 557; but two cannot be convicted upon an indictinent charging a joint larceny, unless there be evidence to satisfy a jury that they were concerned in a joint taking. 2 Stark. on Evidence, 840. If one steal another man's goods, and afterwards another stealeth from him, the owner may prosecute the first or the second felon at his choice. Dalt. c. 162. There is no occasion that the carrying away be by the hand of the party accused, for if he procured an innocent agent, as a child or a lunatic, to take the property, or if he obtained it from the sheriff by a replevin, without the slightest colour of title, and with a felonious design, he will himself be a principal offender. Hawk. b. 1. c. 33. s. 12. (8) The felonious quality consists in the intention of the prisoner to defraud the owner, and to apply the thing stolen to his own use; and it is not necessary that the taking should be done lucri causa; taking with an intent to destroy will be sufficient to constitute the of fence if done to serve the prisoner or another person though not in a pecuniary way. R. & R. C. C. 292. In a late singular case it was determined, that where a servant clandestinely took his master's corn, though to give it to his master's horses, he was guilty of larceny, the servant in some degree being likely to diminish his labour thereby. R. & R. C. C. (i) Inst. 4. 1. 1. 307. 3 Burn J. 24th edit. 209. (See a late case, Rus. & Ry. C. C. 118. under very particular circumstances.) It is sufficient if the prisoner intend to appropriate the value of the chattel and not the chattel itself to his own use, as where the owner of goods steals them from his own servant or bailee in order to charge him with the amount. 7 Hen. VI. f. 43. The intention must exist at the time of the taking, and no subsequent felonious intention will render the previous taking felonious. We have seen that a taking by finding, and a subsequent conversion, will not amount to a felony. 3 Inst. 108. 1 Hawk. c. 33, s. 2. 2 Russ. 1041. But if the goods are found in the place where they are usually suffered to lie, as a horse on a common, cattle in the owner's fields, or money in a place where it clearly appears the thief knew the owner to have concealed it, I Hale, 507, 508. 2 East P. C. 664; or if the finder in any way know the owner, or if there be any mark on the goods by which the owner can be ascertained, see 3 Burn J. 24th edit. 213, the taking will be felonious. So if a parcel be left in a hackney coach, and the driver open it, not merely from curiosity, but with a view to appropriate part of its contents to his own use, or if the prosecutor order him to deliver the package to the servant, and he omits so to do, he will be guilty of felony. 2 East P. C. 664. 1 Leach, 413, 15, and in notis. Where the taking exists, but without fraud, it may amount only to a trespass. This is also a point frequently depending on circumstantial evidence, and to be left for the jury's decision. Thus, where the prisoners entered another's stable at night and took out his horses, and rode them thirty-two miles, and left them at an inn, and were afterwards found pursuing their journey on foot, they were held to have committed only a trespass, and not a felony. 2 East, P. C. 662. It depends also on circumstances what offence it is to force a man in the possession of goods to sell them; if the defendant takes them, and throws down more than their value, it will be evidence that it was only trespass; if less were offered, it would probably be regarded as felony. 1 East Rep. 615. 636. And it seems that the taking 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 (1). The ordinary discovery of a felonious intent is where the party doth it clandestinely; or, being charged with the fact, denies it. But this 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 felonious 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 (k) See page 20. sault was felonious. Thus, if a man searches the pockets of another for money, and finds none, and afterwards throws the saddle from his horse on the ground, and scatters bread from his packages, he will not be guilty of robbery, 2 East P. C. 662, though he might certainly have been indicted for feloniously assaulting with intent to steal, for that offence was complete. The openness and notoriety of the taking, where possession has not been obtained by force or stratagem, is a strong circumstance to rebut the inference of a felonious intention, 1 Hale, 507. East P. C. 661, 662.; but this alone will not make it the less a felony. Kel. (m) See Book II. p. 16. 82. 2 Raym. 276. 2 Vent. 94. A taking by mere accident, or in joke, or mistaking another's property for one's own, is neither legally nor morally a crime. 2 Hale, 507. 509. (9) By statute 7 and 8 Geo. IV. c. 29, § 23, the stealing any description of writings relat ing to the title of real estates is punishable with transportation for seven years, or with fine and imprisonment at the discretion of the court; and, by § 24, these provisions are not to deprive the party aggrieved of the remedies he now has, at law or in equity. This enactment is new. See 3 Inst. 109; 1 Hale, 110. See note 1, p. 229. 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 5s. is by statute 6 Geo. III. c. 36. made felony in the principals, aiders, and abettors, 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 (n) 3 Inst. 109. 1 Hal. P. C. 510. (0) Stat. 43 Eliz. c. 7. 15 Car. II. c. 2. 31 Geo. II. c. 35. 6 Geo. III. c. 48. 9 Geo. III. c. 41. 13 Geo. III. c. 32. (10) By statute 7 and 8 Geo. IV. c. 29, § 44, stealing, ripping, cutting, or breaking with intent to steal, any glass or woodwork belonging to any building, or any utensil or fixture made of metal or other material fixed in or to any building whatsoever, or metal fixtures in land being private property, or for a fence to any house, garden, or area, or in any square, &c. is a felony punishable as in the case of simple larceny. (11) By statute 7 and 8 Geo. IV. c. 30, 19, persons maliciously destroying or damag ing any trees, shrubs, or underwood, growing in any park, pleasure-ground, garden, orchard, or avenue, (in case the injury exceeds the sum of 1.,) shall be guilty of felony, and be punished with transportation for seven years, or imprisonment not exceeding two years, with public whipping in addition; and committing the offence on trees, &c. growing elsewhere, (where the injury exceeds 51.) is subject to the same punishment. And by 20, destroying such property wheresoever growing, of any value above one shilling, renders the offender liable to a fine of 51. for the first offence; to hard labour and imprisonment not exceeding twelve months for the second offence, with whipping in addition; and to transportation or imprisonment as in the last section, as for a felony, for a third offence. (12) By 7 and 8 Geo. IV. c. 29, § 42, stealing or destroying any plant, root, fruit, or vegetable production, growing in any garden, orchard, nursery-ground, hot-house, greenhouse, or conservatory, is punishable, for a first offence, with imprisonment and hard labour, not exceeding six calendar months, or a fine not exceeding 201., over and above the VOL. II. (p) Oak, beech, chesnut, walnut, ash, elm, cedar, fir, asp, lime, sycamore, birch, poplar, alder, larch, maple, and hornbeam. 73 value of the articles stolen; and the second offence is felony, punishable as in the case of simple larceny. (13) By 7 and 8 Geo. IV. c. 29, 43, the first offence is punishable with hard labour and imprisonment not exceeding one month, or with a fine not exceeding 11., besides the value of the articles stolen, and the second offence with whipping, and imprisonment for a term not exceeding six months. The words of the Act are stealing or destroying "any cultivated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land open or enclosed not being a garden, orchard, or nursery-ground." (14) By 7 and 8 Geo. IV. c. 29, § 38, persons stealing or destroying with intent to steal, any tree, shrub, or underwood, growing in any park, pleasure-ground, garden, or near houses, (where the injury exceeds the sum of 1.) are guilty of felony, and liable to be punished as in cases of simple larceny; and stealing, or damaging with intent to steal, such property elsewhere, above the value of 51. is declared felony, and liable to the same punishment. And, by 39, stealing, or damaging with intent to steal, any trees, shrubs, &c., wheresoever growing, to the value of one shilling, is punishable with a fine of 51. for the first offence; with hard labour, whipping, and imprisonment, not exceeding twelve months, for the second offence; and the third offence is felony, punishable as in case of simple larceny. There seems to be no pu nishment if the property stolen or destroyed be under the value of a shilling. 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 trespass (q) 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. (7) See Book II. page 438. (15) By 7 and 8 Geo. IV. c. 29, 37, stealing or severing with intent to steal, any ore, or other substance, from certain mines, is felony, and punishable as in case of simple larceny. The 25 Geo. II. c. 105, is repealed by 7 and 8 Geo. IV. c. 27. (16) See 2 R. S. 679, § 66, &c. (17) Repealed by 7 and 8 G. IV. c. 27; and by 7 and 8 G. IV. c. 29, ◊ 5, persons stealing any tally, order, or other security, either pub lic or private, relating to this country, or to any foreign state, or any debenture, deed, bond, bill, note, warrant, order, or other security for money, or any order for the delivery of goods, shall be guilty of felony, and punished as though they had stolen any chattel of equal value, according to the interest the parties have in the securities stolen: and all the documents enumerated in the Act shall be deemed to be included in the words "valuable security." A check on a banker, written on unstamped paper, payable to D. F. J., and not made pay (s) 8 Rep. 33. able to bearer, is not a valuable security within the meaning of the Act. Rex v. Yates, Car. C. L. 273, 233. (18) See note 5, p. 231, and the statute there referred to. (19) See 5 Geo. III. c. 25; 42 Geo. III. c. 81; and 52 Geo. III. c. 143, with respect to these offences; by the latter of which sta tutes, the provisions of the former are incorporated, and accessaries before the fact are ousted of clergy, and may be tried before the principal is convicted. In a case under 7 Geo. III. c. 50, where a person was indicted as charger and sorter, and was acquitted on this special count, it was held that he could not be convicted on a general count as a person employed in the post-office, on evidence that he was no otherwise employed than as a sorter. Shaw's case, 2 East, P. C. 580. A bill of exchange may be laid as a warrant for the payment of money within that statute. Willoughby's case, 2 East, P. C. 581. (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 the 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 |