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CHAPTER XVII.

OF OFFENCES AGAINST PRIVATE PROPERTY.

THE next and last species of offences against private subjects, are such as more immediately affect their property. Of which there are two, which are attended with a breach of the peace; larceny and malicious mischief: and one, that is equally injurious to the rights of property, but attended with no act of violence. which is the crime of forgery. Of these three in their order.

I. Larceny, or theft, by contraction for latrociny, lactrocinium, is distinguished by the law into two sorts: the one called simple larceny, or plain theft, unaccompanied with any other atrocious circumstances; and mixed or compound larceny.

And, first, of simple larceny; which, when it is the stealing of goods above the value of twelve-pence, is called grand larceny; when of goods to that value, or under, is petit larceny; offences which are considerably distinguished in their punishment, but not otherwise. I shall, therefore, first consider the nature of simple larceny in general; and then shall observe the different degrees of punishment inflicted on its two several branches.

Simple larceny, then, "is the felonious taking and carrying away of the personal

[*230] goods of another." This "offence certainly commenced then, whenever

it was, that the bounds of property, or laws of meum and tuum, wer? established. How far such an offence can exist in a state of nature, where ali things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seized to his present use seems to be the only offence of this kind incident to such a state. But unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen, (a) any violation of that property is subject to be punished by the laws of society: though how far that punishment should extend, is matter of considerable doubt. At present we will examine the nature of theft, or larceny, as laid down in the foregoing definition. 1. It must be a taking. (2) This implies the consent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust,

(a) See book II, p. 8, &c.

(1) The punishment for this offence is now provided for by statute 24 and 25 Vic. c. 96. That statute abolishes the distinction between grand and petit larceny, and limits the punishment for the first offence of simple larceny to three years' penal servitude, or two years' imprisonment, with or without hard labor, and with or without solitary confinement.

(2) [The cases upon this important requisite of the offence of larceny are so numerous, and the distinctions so subtle, that it will be necessary to go into considerable detail to give a complete view of the law upon the subject. See in general, 3 Chit. Crim. L., 2d. ed. 917 to 924.

1. When the offender lawfully acquired the possession of goods, but under a bare charge, the owner still retaining his property in them, the offender will be guilty of larceny in common law in embezzling them. Thus, in addition to the instances put by the learned author, of the butler, the shepherd, and guest at an inn, if a master deliver property into the hands of a servant for a special purpose, as to leave it at the house of a friend, or to get change, or deposit with a banker, the servant will be guilty of felony in applying it to his own use, for it still remains in the constructive possession of its owner. 2 Leach, 870, 942; and see 2 East. P. C. 563, sed vide 2 East, P. C. 562; R. and R. C. C. 215; 4 Taunt. 258, S. C. If a banker's clerk is sent to the money-room to bring cash for a particular purpose, and he takes the opportunity of secreting some for his own use, (1 Leach, 344) he is guilty of larceny and see 1 Leach, 251; Kel. 33; Cowp. 294. And if several persons play together at cards, and deposit money for that purpose, not parting with their property therein, and one sweep it all away, and take it to himselt, he will be guilty of theft, if the jury find that he acted with a felonious design. 1 Leach, 270; Cal. 395. So if there be a plan to cheat a man of his property, under color of a bet, and he parts with the possession only, to deposit as a stake with one of the confederates; the taking by such confederate is felonious. Russ. and Ry. C. C. 413. And if a bag of wheat be delivered to a warehouseman for safe custody, and he take the wheat out of the bag, and dispose of it, it is larceny. Russ. and Ry. C. C. 337. And where a banker's clerk took notes from the till. under color of a check from a third person, which check he obtained by having entered

can ground a larceny. As if A lends B a horse, and he rides away with him: or, if I send goods by a carrier, and he carries them away; these are no larcenies. (b) But if the carrier opens a bale or pack of goods, or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, these are larcenies; (c) for here the animus furandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. But bare non-delivery shall not of course be intended to arise from a felonious

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fictitious balance in the books in favor of that person, it was held he was guilty of felony; tho fraudulent obtaining the check being nothing more than mere machinery to effect his purpose. 4 Taunt. 304: R. and R. C. C. 221, S. C.; 2 Leach, C. C. 1033. And where one employed as a clerk, in the day-time, but not residing in the house, embezzles a bill of exchange, which he received from his master in the usual course of business, with directions to transmit it by the post to a correspondent, it was held to be larceny. 2 East, P. C. 565; and see 2 Chit. C. L. 2d. ed. 917, b. And where goods have not been actually reduced into the owner's possession, yet if ne has entrusted another to deliver them to his servant, and they are delivered accordingly, and the servant embezzles them, he will be guilty of larceny; as where a corn factor having purchased a cargo of oats on board a ship, sent his servant with his barge to receive part of the oats in loose bulk, and the servant ordered some of them to be put into sacks, which he afterwards embezzled, this was holden larceny. 2 East, P. C. 1798; 2 Leach, 825.

2. Where the offender unlawfully acquired the possession of goods, as by fraud or force, &c., with intent to steal them, the owner still retaining his property in them, such an offender will be guilty of larceny in embezzling them. Therefore, in addition to the instances mentioned in the text, hiring a horse on pretence of taking a journey, and immediately selling it, is larceny, because the jury found the defendant acted animo furandi, in making the contract, and the parting with the possession had not changed the nature of the property. 2 East, P. C. 685; 1 Leach, 212; and see 2 Leach, 420; 2 East, P. C. 691. So obtaining a horse by pretending another person wanted to hire it to go to B, but in truth with intent to steal it, and not going to B, but taking the horse elsewhere and selling it, is larceny. 1 Leach, 409; 2 East, P. C. 689. So where the prisoner, intending to steal the mail bags from a post-office, procured them to be let down to him by a string from the window of the post-office, under pretence that he was the mail guard, he was held guilty of larceny. 2 East, P. C. 603. It is farceny for a person hired for the special purpose of driving sheep to a fair to convert them to his own use, he having the intention so to do at the time of receiving them from the owner. 1 Ry. and M. C. C. 87. And where a man ordered a pair of candlesticks from a silversmith, to be paid for on delivery, to be sent to his lodgings, whither they were sent accordingly, with a bill of parcels, by a servant, and the prisoner contriving to send the servant back under some pretence, kept the goods, it was holden larceny. Cited in 2 Leach, 420. And if a sale of goods is not completed, and the pretended purchaser absconds with them, and from the first his intention was to defraud, he is guilty of stealing: 1 Leach, 92; and to obtain money from another by ringdropping, is a similar offence, if there was an original design to steal: 1 Leach, 238; 2 id. 572: and where the owner of goods sends them by a servant, to be delivered to A, and B, pre tending to be A, obtains them from him, B is guilty of larceny. 2 East, P. C. 673. So where the prisoner pretending to be the servant of a person who had bought a chest of tea, deposited at the E. I. company's warehouse, got a request paper and permit for the chest, and took it away with the assent of a person in the company's service who had the charge of it; this was held felony. R. and Ry. C. C. 163. So, to obtain a bill of exchange from an endorsee, under a pretence of getting it discounted, is felony, if the jury find that the party did not intend to leave the bill in the possession of the defendant, previous to receiving the money to be obtained on his credit, and that he undertook to discount with the intent to convert it to his own use: 1 Leach, 294; and it seems that if a person procure possession of a house with an intent to steal the lead affixed to it, he may be indicted on the 4 Geo. II, c. 32, for the statutable larceny. 2 Leach, 850.

In all these cases the defendant's original design in obtaining the goods was felonious, and the owner never parted with his property therein, for where either is not the case there can be no larceny, as will appear from the following instances: Thus, where a house was burning, and a neighbor took some of the goods, apparently to save them from the flames, and afterwards converted them to his own use, it was holden no felony, because the jury thought the original design honest. 1 Leach. 411, notes. And it is certain, that if the property in effects be given voluntarily, whatever false pretence has been used to obtain it, no felony can be committed. 1 Hale, P. C. 506; R. and R. C. C. 225, S. P. Thus, obtaining silver on pretence of sending a half guinea presently in exchange, is no felony. 2 East, P. C. 672. So, writing a letter in the name of a third person to borrow money, which he obtains by that fraud, is only a misdemeanor: 2 East, P. C. 673; and it makes no difference in these cases that the credit was obtained by fraudulently using the name of another, to whom it was intended to be given: 1 Leach, 303, notes; 2 East, P. C. 673; R. and R. C. C. 225; and if a horse dealer delivers a

design; since that may happen from a variety of other accidents. Neither by the common law was it larceny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But by statute 33 Hen. VI, c. 1, the servants of a person deceased, accused of embezzling their masters' [*231] goods, may by writ out of chancery (issued by the advice of the chief justices and chief baron, or any two of them), and proclamation made thereupon, be summoned to appear personally in the court of king's bench, to answer

horse to another on his promise to return immediately and pay for it, the party's riding off and not returning is no felony. 1 Leach, 467; 2 East, P. C. 669. So, if a tradesman sells goods to a stranger as for ready money, and sends them to him by a servant, who delivers them, and takes in payment for them bills which prove to be mere fabrications, this will be no larceny, though the party took his lodgings for the express purpose of obtaining the goods by fraud, because the owner parted with his property. 2 Leach, 614. So, fraudulently winning money at gaming, where the injured party really intended to play, is no larceny, though a conspiracy to defraud appear in evidence. 2 Leach, 610. So, brokers, bankers, or agents, embezzling securities deposited with them for security or any special purpose, are not guilty of larceny: 4 Taunt. 258; 2 Leach, 1054; R. and R. C. C. 215; S. C.; but this decision occasioned the 52 Geo. III, c. 63, to be passed, making it a misdemeanor in brokers, bankers and others, to embezzle securities deposited with them for safe custody or for any special purpose, in violation of good faith, and contrary to the special purpose for which they were deposited. Thus, in all cases where voluntary delivering by the prosecutor is the defence to be relied on, two questions arise: first, whether the property was parted with by the owner; secondly, whether, supposing it was not, the prisoner at the time he obtained it conceived a felonious design. In the first case, no fraud or breach of trust can make a conversion larceny; in the second, the complexion of the offence must depend on the felonious design.

3. Where the offender lawfully acquired possession and qualified property in goods, under color of bailment. but with intention of stealing them, and privity of the bailment has been determined either by wrongful act of offender or by intention of parties, if he afterwards embezzle such goods, he will be guilty of larceny. For, in the first case, after the determination of the special contract by any plain and unequivocal wrongful act of the bailee, inconsistent with that contract, the property, as against the bailee, reverts, to the owner, although the actual possession remain in the bailee. 2 East, P. C. 691, 627. The most remarkable case of this description is that of a carrier pointed out by the learned commentator. So, the conversion of money with a felonious intent, which was found in a bureau delivered to a carpenter to be repaired, by breaking it open, when there was no necessity for so doing for the purpose of repairs, will amount to a larceny: 8 Ves. 405; 2 Leach, 952; 2 Russ. 1045; and in the same case it was said, that if a pocket-book containing bank notes were left in the pocket of a coat sent to be mended, and the tailor took the pocket-book out of the pocket, and the notes out of the pocket-book with a felonious intent, it would amount to a felony. If the master and owner of a ship steal some of the goods delivered to him to carry, it is not larceny in him, unless he took the goods out of their package: nor if larceny, would it be an offence within 24 Geo. II, c. 45. R. and R. C. C. 92. And if corn be sent to a miller to grind, and he take part of it, he will be guilty of felony: 1 Roll. Abr. 73; but where forty bags of wheat were sent to prisoner, a warehouseman, for safe custody, until sold by prosecutor, and prisoner's servant, by direc tion of prisoner, emptied four of the bags and mixed their contents with other inferior wheat, and part of mixture was disposed of by prisoner, and remainder was placed in prosecutor's bags, which had thus been emptied, and there was no severing of any part of wheat in any one bag with intent to embezzle that part only which was so severed, the prisoner was held guilty of larceny in taking the wheat out of the bag. R. and R. C. C. 337. And where property which prosecutors had bought was weighed out in the presence of their clerk, and delivered to their carter's servant to cart, who let other persons take away the cart and dispose of the property for his benefit, jointly with that of the other persons, it was held that the carter's servant was not guilty of a mere breach of trust, but that he as well as the other persons were guilty of larceny at common-law. Russ. and Ry. C. C. 125; and see 2 East, P. C. 568 to 574, 695 to 698. But in all these cases the defendant must have had an intention of stealing the property at the time it was delivered to him. R. and R. C. C. 441, overruling 2 East, P. C. 690, 694; 2 Russ. 1089, 1090; 1 R. and M. C. C. 87.

4. Where the offender has the qualified property and actual possession of goods at the time of the embezzlement, he will not be guilty of larceny at common-law. Thus, where a servant or clerk had received property for the use of his master, and the master never had any other possession than such possession by his servant or clerk, it was doubted whether the latter was guilty of felony in stealing such property, or was guilty merely of a breach of trust. 2 Leach, 835; Hale, 668; 2 East, P. C. 570, 571; and see 4 Taunt. 258; Russ. and Ry. C. C. 215, S. C.; 2 Leach, C. C. 1054. So, a cashier of the bank could not be guilty of a felony in embezzling an India bond which he had received from the court of chancery, and which was in his actual as well as constructive possession. 1 Leach, 28, So, if a clerk received money of a customer, and, without at all putting it in the till, converted it to his own use, he was guilty only of a breach of trust,

their masters' executors in any civil suit for such goods; and shall, on default of appearance, be attainted of felony. And by statute 21 Hen. VIII, c. 7, if any servant embezzles his masters' goods to the value of forty shillings, it is made felony; except in apprentices, and servants under eighteen years old.(3) But if he had not the possession, but only the care and oversight of the goods, as the butler of the plate, the shepherd of the sheep, and the like, the embezzling of them is felony at common law.(d) So, if a guest robs his inn or tavern of a piece of plate, it is larceny: for he hath not the possession delivered to him, but merely the use, (e) and so it is declared to be by statute 3 and 4 W. and M. c. 9, if a lodger runs away with the goods from his ready furnished lodgings. Under some circumstances, also, a man may be guilty of felony in taking his own goods: as if he steals them from a pawnbroker, or any one to whom he hath delivered and entrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with an intent to charge the hundred with the loss according to the statute of Winchester.(f)

2. There must not only be a taking, but a carrying away; (4) cepit et asportavit

(d) 1 Hal. P. C. 506.

(e) 1 Hawk. P. C. 90.

(f) Fost. 123, 124.

though, had he once deposited it, and then taken it again, he would have been guilty of felony. 2 Leach, 835. The dangers resulting from this doctrine occasioned the enactment of 39 Geo. III, c. 85, against such embezzlements by servants, or clerks, rendering the offence punishable with transportation for fourteen years.

5. Party stealing his own goods, &c. Besides the cases already mentioned in the text, if a man steals his own goods from his own bailee, though he has no intent to charge the bailee, but his intent is to defraud the king, yet, if the bailee had an interest in the possession, and could have withheld it from the owner, the taking is a larceny. R. and R. C. C. 470 3 Burn, J, 24th ed. 240 S. C. And a man may be accessory after the fact to a larceny committed on himself, by receiving and harboring the thief, instead of bringing him to justice. Fost. 123; but a joint tenant or tenant in common of effects cannot be guilty of larceny in appropriating the whole to his own purpose 1 Hale, 513, but if a part owner of property steal it from the person in whose custody it is, and who is responsible for its safety, he is guilty of larceny. R. and R. C. C. 478. Nor can a wite commit larceny of her husband's goods, because his custody is, in law, her's, and they are considered as one person. 1 Hale, 514. On the same ground no third person can be guilty of larceny by receiving the husband's goods from the wife, and if she keep the key of the place where the property is kept, her privity will be presumed, and the defendant must be acquitted. 1 Leach, 47. See 1 Hale, 45, 516; Kel. 37.

6. The taking must always be against the will of the owner: 1 Leach, 47; but if the owner, in order to detect a number of men in the act of stealing, directs a servant to appear to encourage the design, and lead them on till the offence is complete, so long as he did not induce the original intent, but only provided for its discovery after it was formed, the criminality of the thieves will not be destroyed. 2 Leach, 913. So, if a man be suspected of an intent to steal, and another, to try him, leaves property in his way, which he takes, he is guilty of larceny. 2 Leach, 21. And if, on thieves breaking in to plunder a house, a servant, by desire of his master, show them where the plate is kept, which they remove, this circumstance will not affect the crime. 2 Leach, 922.]

(3) This subject is also covered by statute 24 and 25 Vic. c. 96, which imposes the punishment of penal servitude for not more than fourteen and not less than three years, or imprisonment not more than two years.

(4) [If a thief cut a belt on which a purse is hung, and it drops to the ground where he leaves it, or if he compel a man to lay down goods, which he is carrying, and is apprehended before he raises them from the ground, the crime is incomplete. 1 Leach, 322, n. b.; 1 Hale, 533. And if goods are tied to a string, which is fastened at one end to a counter, and a person, intending to steal them, takes hold of the other, and removes them towards the door, as far as the string will permit him, this will be no felony. So, where the prosecutor had his keys tied to the strings of his purse in his pocket, which the prisoner endeavored to take from him, and was detected with the purse in his hand, but the strings still hung to the pocket by the keys, this was holden to be no asportation, and therefore no larceny was committed 1 Leach. 321. n. a. ; 1 Hale, 508. But a very slight asporation will suffice. Thus, to snatch & diamond from a lady's ear, which is instantly dropped among the curls of her hair: 1 Leach, 320; 2 East, P. C. 557; to remove sheets from a bed, and carry them into an adjoining room. (1 Leach. 222, in notes), to take plate from a trunk, and lay it on the floor, with intent to carry it away (id.), and to remove a package from one part of a wagon to another, with a view to steal it, (1 Leach, 236), have respectively been holden to be felonies: and where a prisoner had lifted up a bag from the bottom of a boot of a coach, but was detected before he had got it out, and 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

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.() *3. This taking, and carrying away, must also be felonious; that is, [*232] done animo furandi: or, as the civil law expresses it, lucri causa.(i) (5)

(g) 3 Inst. 108, 109.

(h) 1 Hawk. P. C. 93.

(i) 1 Inst. 4, 1, 1.

But if the defendant merely change the position of a package from lying end ways to lengthways, for the greater convenience of taking 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. Îd. 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. Č. 557; but two cannot be convicted upon an indictment 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 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 color of title, and with a felonious design, he will himself be a principal offender. Hawk. b. 1, c. 33, s. 12.]

(5) 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 offence, if done to serve the prisoner or another person, though not in a pecuniary way. R. and 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 labor thereby. R. and R. C. C. 307; 3 Burn, J., 24th ed. 209. (See a late case, Rus. and 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 1 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, 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, 413-415, and in notes.

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 assault 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: I Hale, 507; 2 East. P. C. 661, 662; but this alone will not make it the less a felony. Kel. 82; 2 Raym. 266 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.]

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