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' goods, may by writ out of chancery (issued by the advice of the chief jus[*231] tices and chief baron, or any two of them), and proclamation made there upon, 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 se curities 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 Ruзs. 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, 635; 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.(ƒ) 2. There must not only be a taking, but a carrying away; (4) cepit et asportavit (d) 1 Hal. P. C. 503. (e) 1 Hawk. P. C. 90. (f) Fost. 123, 121. 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 suflicient 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.() [*232] *3. This taking, and carrying away, must also be felonious; that is, 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 endways 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. id. 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 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 chatte! 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: 1 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 or morally a crime. 2 Hale, 507, 509.] This requisite, besides excusing those who labor under incapacities of mind or will (of whom we spoke sufficiently at the entrance of this book) () 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 neighbor takes another's plough that is left in the field, and uses it upon his own land, and then returns it: if under cover of arrear of rent where none is due, I distrain another's cattle, or seize them; all these are misdemeanors and trespass, 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 realty, larceny at the common law cannot be committed of them. 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 the subtility 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 absolutely fixed and immovable.(m) And if they were *severed by violence, so as to be changed into movables; and, at the [*233] same time, by one and the same continued act, carried off by the person who severed them: they never could 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 thieves sever 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 take them 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. 32, 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; and to steal, damage, or destroy underwood or hedges, and the like, to rob orchards or gardens of fruit, growing therein, to steal or otherwise destroy any turnips, potatoes, cabbages, parsnips, peas, or carrots, or the roots of madder, when growing, are (o) punishable, criminally, by whipping, small fines, imprisonment, and satisfact on 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 or plant, by day or night, is liable to pecuniary penalties for the two first offences, and for the third is con[*234] stituted a felony, liable to transportation for seven years. Stealing ore out of (k) See page 20. (1) 1 Hal. P. C. 509. (m) See book II, p. 16. (5) Stat. 43 Eliz. c. 7. 15 Car. II, c. 2. 31 Geo. II, c. 35. 6 Geo. III, c. 48. (p) Oak, beech, chestnut, walnut, ash, elm, cedar, fir, asp, lime maple, and hornbeam. (n) 3 Inst. 109. 1 Hal. P. C. 510. VOL. II.-56 441 mines is also no larceny, upon the same principle of adherence to the freehold. with an exception only 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. Upon nearly the same principle the stealing of writings relating to a real estate is no felony; but a trespass: (7) because they concern the land, or (according to our technical language) savour of the realty, 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) (6) Bonds, bills, and notes, which concern mere choses in action, were also, at tho 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 larcenics, as the money they were meant to secure. 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. 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 steal the same out of [*235] 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, or 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. 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 (whether wreck or no wreck) is felony, without benefit of clergy in like manner as, by the civil law, (t) this inhumanity is punished in the same degree as the most atrocious theft. (7) Larceny also cannot be committed of such animals in which there is no property either absolute or qualified: as of beasts that are feræ naturæ 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. (u) 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 patridge in a mew, larceny may be committed. (v) (8) 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. 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, (g) 1 Hal. P. C. 510. Stra. 1137. (u) 1 Hal. P. C. 511. Fost. 366. (r) See book, II, p. 128. (s) 8 Rep. 33. (t) Cod. 6, 2 18. (v) 1 Hawk. P. C. 94. 1 Hal. P. C. 511. (6) The subject of this paragraph is now covered by statute 24 and 25 Vic. c. 96, which provides for the criminal punishment of the various wrongs here enumerated. (7) The subject of this paragraph is also covered by statute 24 and 25 Vic. c. 96. (8) See Reg. v. Cheafor, 2 Den. C. C. 361. The statutes mentioned in this paragraph are now revealed. |