unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen, 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. This implies the consent of the 1. There a See vol. ii., page 8, &c. (2) The cases upon this important requisite of the offense of larceny are so numerous, and the distinctions so subtle, that it will be necessary to go into some detail to give a satisfactory view of the law upon the subject. See, in general, 3 Chit., Crim. L., 2d ed., 917 to 924. to a correspondent, it was held larceny. 1st. Where the offender lawfully acquired the possession of the goods, but under a bare charge, the owner still retaining his property in them, the offender will be guilty of larceny at 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 2dly. Where the offender unlawfully deposite it with a banker, the servant acquired the possession of goods, as by will be guilty of felony in applying it to fraud or force, &c., with intent to steal his own use, for it still remains in the them, the owner still retaining his propconstructive possession of its owner. 2 erty in them, such an offender will be Leach, 870, 942; and see 2 East, P. C., guilty of larceny in embezzling them. 563; [1 Leach, 302; 2 Leach, 699; Russ. Therefore, in addition to the instances & R., C. C., 125; 1 Mood., C. C., 368; mentioned in the text, hiring a horse on 2 Mood., C. C., 32, 33 ; 9 C. & P., 353]. pretense of taking a journey, and immeIf a banker's clerk is sent to the money- diately selling it, was held to be larceny, room to bring cash for a particular pur- because the jury found that the defendpose, and he takes the opportunity of ant acted animo furandi in making the secreting some for his own use, 1 Leach, contract, and the parting with the pos344, he is guilty of larceny; and see 1 session had not changed the nature of Leach, 251; Kel., 33; Cowp., 294. And the property. 2 East. P. C., 685; 1 if a bag of wheat be delivered to a ware- Leach, 212; and see 2 Leach, 420; 2 houseman for safe custody, and he take East, P. C., 691. So, obtaining a horse the wheat out of the bag, and dispose of by pretending that another person wantit, it is larceny. Russ. & Ry., C. C., ed to hire it to go to B., but in truth with 337. And where a banker's clerk took intent to steal it, and not going to B., notes from the till, under color of a check but taking the horse elsewhere and sellfrom a third person, which check he ob- ing it, is larceny. 1 Leach, 409; 2 East, tained by having entered a fictitious P. C., 689. So, where the prisoner, inbalance in the books in favor of that tending to steal the mail bags from a person, it was held he was guilty of post-office, procured them to be let down felony the fraudulent obtaining the to him by a string from the window of check being nothing more than mere the post-office, under pretense that he machinery to effect his purpose. 4 was the mail guard, he was held guilty Taunt., 304; Russ. & Ry., C. C., 221; 2 Leach, 1083. And where one employed as a clerk, in the daytime, but not residing in the house, embezzled a bill of exchange, which he received from his master in the usual course of business, with directions to transmit it by the post of larceny. 2 East, P. C., 603. It is must be a taking. owner to be wanting. Therefore, no delivery of the goods from the owner to the offender, upon trust, can ground a larpair of candlesticks from a silversmith, of the goods, apparently to save them to be paid for on delivery, to be sent to from the flames, and afterward converted his lodgings, whither they were sent ac- them to his own use, it was holden no cordingly, with a bill of parcels, by a felony, because the jury thought the servant, and the prisoner, contriving to original design honest. 1 Leach, 411, send the servant back under some pre- notes. And it is certain that if the tense, kept the goods, it was holden property in effects be given voluntarily, larceny; cited 2 Leach, 420. And if a whatever false pretense has been used sale of goods is not completed, and the to obtain it, no felony can be committed. pretended purchaser absconds with 1 Hale, P. C., 506; Russ. & R., C. C., 225. them, and from the first his intention Thus, obtaining silver on pretense of was to defraud, he is guilty of stealing. sending a half guinea presently in ex1 Leach, 92. To obtain money from an- change is no felony. 2 East, P. C., 672; other by ring-dropping is a similar of [see 9 C. & P., 741]. So, writing a letfense, if there was an original design to ter in the name of a third person to borsteal, 1 Leach, 238; 2 Leach, 572; and row money, which he obtains by that where the owner of goods sends them fraud, is only a misdemeanor, 2 East, P. by a servant, to be delivered to A., and C., 673; and it makes no difference in B., pretending to be A., obtains them these cases that the credit was obtained from him, B. is guilty of larceny. 2 East, by fraudulently using the name of anP. C., 673. So where the prisoner, pre- other, to whom it was intended to be tending to be the servant of a person given, 1 Leach, 303, notes; 2 East, P. C., who had bought a chest of tea, deposited 673; Russ. & R., C. C., 225. If a horseat the E. I. Company's ware-house, got a dealer delivers a horse to another on his request paper and permit for the chest, promise to return immediately and pay and took it away with the assent of a for it, the party's riding off and not reperson in the company's service who had turning is no felony. 1 Leach, 467; 2 the charge of it; this was held felony. East, P. C., 669. So, if a tradesman sells Russ. & Ry., C. C., 163. So, to obtain goods to a stranger as for ready money, a bill of exchange from an indorsee, un- and sends them to him by a servant, der a pretense of getting it discounted, who delivers them, and takes in payis felony, if the jury find that the party ment for them bills which prove to be did not intend to leave the bill in the mere fabrications, this will be no larceny, possession of the defendant previous to though the party took his lodgings for receiving the money to be obtained on the express purpose of obtaining the his credit, and that he undertook to dis- goods by fraud; because the owner count with intent to convert it to his own parted with his property. 2 Leach, 614; use. 1 Leach, 294. If several persons [and see 1 Mood., C. C., 119]. play together at cards, and deposite fraudulently winning money at gaming, money for that purpose, and one sweep where the injured party really intended it all away, he will be guilty of theft, if to play, is no larceny, though a conspirathe jury find he acted with a felonious design. 1 Leach, 270; Cald., 295. 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 of money, to deposite it as a stake with one of the confederates, the taking by such confederate is felonious. Russ. & Ry., C. C., 413. [See, further, 2 East, P. C., 675; 1 Leach, 294; 4 Taunt., 274; 1 Mood., C. C., 137, 179, 185, 250; 2 C. & P., 423; 5 C. & P., 143; 6 C. & P., 390; 8 C. & P., 46, 111; 9 C. & P.,784.] So, cy 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 at common law, 4 Taunt., 258; 2 Leach, 1054; Russ. & R., C. C., 215; [but see now the stats. 7 & 8 Geo. IV., c. 29, s. 49, and 5 & 6 Vict., c. 39, s. 6, infra]. Thus, in all cases where a voluntary delivering by the prosecutor is the defense to be relied on, two questions arise: first, whether the property was parted with In all these cases, the defendant's by the owner; secondly, supposing it original design in obtaining the goods was not, whether the prisoner, at the was felonious, and the owner never part- time he obtained the possession, conceived with his property therein; for where ed a felonious design. In the first case, either of these is not the case, there can no fraud or breach of trust can make a be no larceny, as will appear from the conversion larceny; in the second, the following instances: thus, where a house complexion of the offense must depend was burning, and a neighbor took some on the felonious design. ceny. 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. 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 afterward 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 b1 Hal., P. C., 504. c 3 Inst., 107. 3dly. Where the offender lawfully ac- owner. 2 East., P. C., 664, 665; 1 Leach, quired the possession of and qualified 413, 415, n. So, also, where there is property in the goods, under color of bail- any mark upon the property whereby ment, but with the intention of stealing the owner may be traced, and the findthem; or where the bailment has been de- er converts it to his own use instead of termined either by the wrongful act of restoring it, such conversion is larceny.] the offender, or by the intention of the If the master and owner of a ship steal parties, if he afterward embezzle such some of the goods delivered to him to goods, he will be guilty of larceny. For carry, it is not larceny in him, unless he after the determination of the special took the goods out of their package. contract by any plain and unequivocal Russ. & Ry., C. C., 92. If corn be sent wrongful act of the bailee, inconsistent to a miller to grind, and he take part of with that contract, the property, as it, he will be guilty of felony. 1 Roll. against the bailee, reverts to the owner, Abr., 73. And where forty bags of although the actual possession remain in wheat were sent to the prisoner, a warethe bailee. 2 East, P. C., 627, 691. The houseman, for safe custody until sold by most remarkable case of this description the prosecutor, and the prisoner's servis that of a carrier, pointed out by the ant, by direction of the prisoner, emptied learned commentator. So, the conver- four of the bags, and mixed their consion of money with a felonious intent, tents with other inferior wheat, and part which was found in a bureau delivered of the mixture was disposed of by the to a carpenter to be repaired, by break- prisoner, and the remainder was placed ing it open, when there was no neces- in the prosecutor's bags, which had thus sity for so doing for the purpose of re- been emptied, and there was no severing pairs, will amount to a larceny, 8 Ves., of any part of the wheat in any one bag 405; 2 Leach, 952; 2 Russ., 1045; and with intent to embezzle that part only in the same case it was said, that if a which was so severed, the prisoner was pocket-book containing bank-notes were held guilty of larceny in taking the wheat left in the pocket of a coat sent to be out of the bag. Russ. & Ry., C. C., 337. mended, and the tailor took the pocket- And where property which the prosebook out of the pocket, and the notes out cutors had bought was weighed out in of the pocket-book, with a felonious in- the presence of their clerk, and delivertent, it would amount to a felony. [See ed to their carter's servant to cart, who 7 M. & W., 623.-If a man lose goods, let other persons take away the cart and and another find them, and, not knowing dispose of the property for his benefit the owner, convert them to his own use, jointly with that of the other persons, it this has been said not to be larceny; 2 was held that the carter's servant was Inst., 108; 1 Hawk., c. 33, s. 2; 1 Hale, not guilty of a mere breach of trust, but 506. But this doctrine can apply only that he as well as the other persons were to a case where the finder bona fide sup- guilty of larceny at common law. Russ. poses the goods to have been lost, and & Ry., C. C., 125; and see 2 East, P.C., not to a case where he colors a felonious 568 to 574, 695 to 698. But in all such taking under that pretense. Id. ; 2 East, cases the defendant must have had an P. C., 664; 8 C. & P., 176; 1 C. & Mar., intention of stealing the property at the 306. Thus, if a hackney-coachman con- time it was delivered to him. Russ. & vert to his own use a parcel left in his Ry., C. C., 441 (overruling 2 East, P. C., coach by a passenger, it is a felony, if he 690, 694). See 1 Mood., C. C., 87.know or have means of finding out the [CHITTY.] * In New York, the carrier is held guilty as well when he embezzles the property in bulk as when he opens a bale and takes away part of the goods.-(2 R. S., 679, § 62.) trust was determined, the delivery having taken its effect. But bare non-delivery shall not, of course, be intended to arise from a felonious 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 persons deceased, accused of embezzling their masters' goods, may, by writ out of Chancery [231] (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 their master's 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 master's goods to the value of forty shillings, it is made felony, except in apprentices, and servants under eighteen years old. But if he had not the possession, but only the care and (3) [By the stat. 7 & 8 Geo. IV., c. 29, s. 46, "for the punishment of depredations committed by clerks and servants in cases not punishable capitally," if any clerk or servant shall steal any chattel, money, or valuable security (see the 5th section of the same statute, post, p. 234, n. 12) belonging to, or in the possession or power of, his master, the offender shall be liable, on conviction, to be transported for any term not exceed ing fourteen nor less than seven years, or to be imprisoned for any term not exceeding three years, and, if a male, to be whipped. It will be observed that it is not required by this statute that the goods, &c., stolen should be the actual property of the master; it is sufficient if they were in his possession or power. And if they be in the master's possession by the hands of another servant, that will satisfy the statute. 1 Mood., C. C., 276. As to who is a "clerk or servant," see the cases collected, infra.] But 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; 2 Hale, 668; 2 East, P. C., 570, 1; and see 4 Taunt., 258; Russ. & Ry., C. C., 215; 2 Leach, C. C., 1054. [So where the servant, being sent by his master for change for a bank-note, got silver for it, with which he absconded, this was held not to be larceny. 1 Mood., C. C., 129.] So a cashier of the Bank could not be guilty of felony in embezzling an India bond which he had received from the Court of Chancery, and 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, 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 the 39 Geo. III., c. 85, against such embezzlements by servants or clerks, ren dering the offense punishable with trans The statute punishing embezzlement in New York embraces not only the clerks or servants of individuals and copartnerships, but the officers and agents of incorporated companies, and extends to property received by the servant for the use of the master, although the master never had possession of it, other than the possession of the servant.-(2 R. S., 678, § 59.) The act makes the clerk or officer punishable for taking or secreting, with intent to convert to his own use. without the assent of his master or employer, any money, &c., belonging to any other person, which shall have come into his possession. Upon the words "be longing to any other person" a question has been raised, whether the taking or secreting the money of the master or employer was an offense within the act; and it was held that it was within the act, the words any other person being held to mean any person other than the individual charged with embezzlement.-(15 Wendell, 147.) CHAP. XVII.] LARCENY.-WHAT IS A TAKING. oversight of the goods, as the butler of plate, the shepherd of sheep, and the like, the embezzling of them is felony at com [The orders, and to collect debts, is a clerk portation for fourteen years. remedy given thereby has been enlarg- within the act, though he is employed ed by the stat. 7 & 8 Geo. IV., c. 29, s. by many different houses on each jour47, which declares and enacts, that if ney, and pays his own expenses out of any clerk or servant, or any person em- his commission on each journey, and ployed for the purpose or in the capaci- does not live with any of his employers, ty of a clerk or servant, shall by virtue nor act in any of their counting-houses. of such employment receive or take into Russ. & Ry., C. C., 198. So a servant his possession any chattel, money, or in the employment of A. & B., who are valuable security (see the 5th section of partners, is the servant of each, and if he the same statute, post, p. 234, n. 12) for embezzle the private money of one, or in the name or on the account of his may be charged under the act as the master, and shall fraudulently embezzle servant of that individual partner. 3 the same, or any part thereof, every such Stark., N. P. C., 70. [See 2 Mood., C. offender shall be deemed to have felo- C., 91; 8 C. & P., 742.] A man is suffiniously stolen the same from his master, ciently a servant within the act, although although it was not received into the he is only occasionally employed when possession of the master otherwise than he has nothing else to do; and it is suffiby actual possession of his clerk, servant, cient if he was employed to receive the or other person so employed, and shall money he embezzled, though receiving be liable, on conviction, to any of the pun- money may not be in his usual employishments which may be awarded under ment, and although it was the only inthe 46th section (supra). And the 48th stance in which he was so employed. section, for the purpose of preventing Russ. & Ry., C. C., 299. [Id., 316; 1 the difficulties that had been experienced Mood., C. C., 370.] A clerk intrusted in the prosecution of such offenders, em- to receive money at home from out-door powers the prosecutor to charge in the collectors, receives it abroad from outindictment and proceed for any number door customers; it was held, that such of distinct acts of embezzlement, not ex- receipt of money may be considered ceeding three, committed by the defend- "by virtue of his employment," though ant against the same master, within the it is beyond the limits in which he is auspace of six calendar months from the thorized to receive money for his emAnd it pro- ployers. Russ. & Ry., C. C., 319. So first to the last of such acts. vides that, except where the offense if a servant, generally employed by his shall relate to any chattel, it shall be master to receive sums of one descripsufficient to allege the embezzlement to tion, and at one place only, is employed be of money, without specifying any particular coin or valuable security; and that such allegation shall be sustained, if the offender be proved to have embezzled any amount, though the particular species of coin, &c., of which it was composed shall not be proved, or if he be proved to have embezzled any piece of coin or valuable security, or any portion of the value thereof; although it may have been delivered to him in order that some part of the value should be returned to the party delivering it, and such part should have been returned accordingly.] This act extends only to such servants as are employed to receive money, and to instances in which they receive money by virtue of their employment. [See Russ. & Ry., C. C., 80; 1 Mood., C. C., 259, 343; 4 C. & P., 390; Moo. & Mal., 21; 7 C. & P., 281.] It seems an apprentice, though under the age of eighteen, is within the act, Russ. & Ry., C. C., 80; so is a female servant, Russ. & Ry., C. C., 267. A person employed upon commission to travel for by him in a particular instance to receive |