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in order to constitute felony, must be a removal of the goods from the place where they were, and the felon must, for the instant at least, have the entire and absolute possession of them. Cherry's case, 2 East, P. C. 556; 1 Leach, 336, (n.) The following case, though nearly resembling the latter, is distinguished by the circumstance that every part of the property was removed. The prisoner sitting on a coach-box, took hold of the upper part of a bag which was in the front boot, and lifted it up from the bottom of the boot on which it rested. He handed the upper part of the bag to a person who stood beside the wheel, and both holding it endeavored to pull it out, but were prevented by the guard. The prisoner being found guilty, the judges, on a case reserved, were of opinion that the conviction was right, thinking that there was a complete asportavit of the bag. Walsh's case, 1 Moody, C. C. 14(a). The prisoner was indicted for robbing the prosecutrix of a diamond ear-ring. It appeared that as she was coming out of the opera-house, the prisoner snatched at her ear-ring, and tore it from her ear, which bled, and she was much hurt. The ear-ring fell into her hair, where it was found on her return home. On a case reserved, the judges were of opinion that this was a sufficient taking to constitute robbery; it being in the possession of the prisoner for a moment, separated from the owner's person, was sufficient, though he could not retain it, but probably lost it again the same instant that it was taken. Lapier's case, 2 East, P. C. 557; 1 Leach, 320.
There must, however, be a possession by the party charged, however temporary. The prisoner stopped the prosecutor as he was carrying a feather bed on his shoulders, and told him to lay it down, or he would shoot him. The prosecutor laid the bed down, but before the prisoner could take it up, he was apprehended. The judges were of opinion that the offence was not completed. Farrel's case, 2 East, P. C. 557.
There must be a severance of the goods from the possession of the owner. The prisoner took a purse out of the pocket of the owner, but the purse being tied to a bunch of keys, and the keys remaining in his pocket, and the party being apprehended while they remained in his pocket, it was held no larceny, on the ground that the owner still reinained in possession of his purse, and that "there was no asportavit. [ *536 ] Wilkinson's case, 1 Hale, P. C. 508. So where goods in a shop were tied to a string, which was fastened to one end of the bottom counter, and the prisoner took up the goods and carried them towards the door as far as the string would permit, and was then stopped, Eyre, B., ruled that there was no severance, and consequently no felony (1). Anon. cited in Cherry's case, 2 East, P. C. 556; 1 Leach, 321, (n.)
Proof of the felonious intent in the taking-goods obtained by false process of law.) Where the possession of goods is obtained from the owner by means of the fraudulent abuse of legal process, the offence will amount to larceny. Thus it is laid down by Lord Hule, that if A. has a design to steal the horse of B. and enters a plaint of replevin in the Sheriff's Court for the horse, and gets him delivered to him and rides him away, this is a taking and stealing, because done in fraudem legis. So
(1) Philips' case, 4 Rogers' Rec. 117.
(a) 2 Eng C. C. 14.
where A. having a mind privately to get the goods of B. into his possession, brings an ejectment and obtains judgment against the casual ejector, and thereby gets into possession, and takes the goods, if it be done animo furandi, it is larceny. 1 Hale, P. C. 507; 2 East, P. C. 660; 2 Russell, 130.
Proof of the felonious intent in the taking--mistake.] The proof that the goods were taken with a felonious intent may be rebutted, by showing that the party charged with the larceny took them by mistake. Thus if the sheep of A. stray from his flock into that of B., and the latter by mistake drives them with his own flock, or shears them, that is not felony; but if he knows the sheep to be another's, and marks them with his own mark, that would be evidence of a felony. i Hale, P. C. 507. So if he appear desirous of concealing the property, or of preventing the inspection of it by the owner, or by any other who might make the discovery, or if, being asked, he deny the having them, although the knowledge be proved; these likewise are circumstances tending to show the felonious intent. 2 East, P. C. 661.
Proof of the felonious intent in the taking-goods taken by trespass.) Although the party may wrongfully take the goods, yet, unless he intended to assume the property in them, and to convert them to his own use, it will amount to a trespass only, and not to a felony. Thus if A. leaves his harrow in the field, and B. having land in the same field uses the harrow, and having done so returns it to its place, or informs the owner, this is only a trespass. 1 Hale, P. C. 509. In the same manner if A. takes away the goods of B., openly before him or other persons, this carries with it evidence only of a trespass. Ibid. So of a servant riding his master's horse upon his own business. Ibid. The two prisoners were charged with stealing two horses. It appeared that they went in the night to an inn kept by the prosecutor, and took a horse and mare from his stable, and rode about thirty-three miles to a place, where they [ *537 ] left them in the care of the ostler, stating that they *should return. They were apprehended the same day, about fourteen miles from the place. The jury found the prisoners guilty, but added that they were of opinion they mierely meant to ride the horses to this place, and to leave then there ; but that they had no intention either of returning them, or making any further use of them. The judges, upon this finding, (Grose, J., diss. and Lord Alvanley not giving any express opinion,) held it to be a trespass only, and no larceny. They said there was no intent in the prisoners to change the property, or to make it their own, but only to use it for a special purpose, that is, to save their labor in traveling. The judges agreed that it was a question for the jury, and that if they had found the prisoners guilty generally upon this evidence, the verdict could not have been questioned. Philipp's case, 2 East, P. C. 662. So where, upon an indictment for stealing a horse, iwo saddles, &c., it appeared that the prisoner got into the prosecutor's stables, and took away the horse and the other articles all together ; but that when he had got to some distance, he turned the horse loose, and proceeded on foot, and attempted to sell the saddles; Garrow, B., left it to the jury to say, whether the prisoner had any intention of stealing the horse ; for that if he intended to steal the other articles, and only used the horse as a mode of carrying
off the other plunder more conveniently, and, as it were, borrowed the horse for the purpose, he would not, in point of law, be guilty of larceny. Crump's case, 1 C. and P. 658 (a). Upon the same principle the following case was decided. The prisoner was indicted for stealing a straw bonnet. It appeared that he entered the house where the bonnet was, through a window which had been left open, and took the bonnet, which belonged to a young girl whom he had seduced, and carried it to a haymow of his own, where he and the girl had been twice before. The jury thought that the prisoner's intent was to induce the girl to go again to the hay-mow, but that he did not mean to deprive her of the bonnet. On a case reserved, the judges held that this taking was not felonious. Dickinson's case, Russ. and Ry. 420 (b).
The prosecutor met the prisoner, whom he knew to be a poacher, and seized him. The prisoner getting free, wrested a gun from the hands of the prosecutor, and ran away with it. It was proved that the next day the prisoner said he would sell the gun, and it was never found. Vaughan, B., told the jury, upon the trial of the prisoner for stealing the gun, that he might imagine that the prosecutor would use the gun so as to endanger his life, and if so, his taking it under that impression would not be felony ; but if he took it, intending at the time to dispose of it, it would be felony. Holloway's case, 5 C. and P. 524 (c). See Knight's case, 2 East, P. C. 510. Anon. Matth. Dig. C. L. 48; cited post. See Van Muyen’s case, Russ. and Ry. 118 (d); and the observations of the Criminal Law Commissioners, Ist Rep. 17, 18.
Proof of the felonious intent in the taking-goods taken under a fair claim of right. If there be any fair claim of property or right in *the prisoner, or if he be brought into doubt at all, the court [ *533 ) will direct an acquittal. 2 East, P. C. 659. Thus where the owner of land takes a horse damage seasant, or a lord seizes it as an estray, though perhaps without title, yet these circumstances explain the intent, and show that it was not selonious; but these facts may be rebutted, as, by showing that the horse was marked, in order to disguise him. i Hale, P. C. 506, 507; 2 East, P. C. 659. After a seizure of uncustomed goods, several persons broke, at night, into the house where they were deposited, with intent to retake them for the benefit of the former owner; and it was held that this design rebutted the presumption of a felonious intent. Knight's case, 2 East, P. C. 510, 659, stated ante, p. 328.
Whether the taking of corn by gleaners is to be considered as a trespass only, or whether it is to be regarded as a felony, must depend upon the circumstances of the particular case. In some places, a custom, authorizing the practice of gleaning, is said to exist; in others, it is sanctioned by the permission of the tenant of the land ; and even where no right whatever exists, yet if the party carry away the corn under a mistaken idea of right, the act would not amount to larceny, the felonious intent being absent. A conviction, however, is said to have taken place at the Old Bailey, upon an indictment for the exercise of this supposed right; but the circumstances of the case are not stated. Woodfall, Landl. and Ten. 242, (ed. 1814,) 2 Russell, 99. See Price's case, 4 Burr. 1925, 1 H. Bl. 51.
(a) Eng. Com. L. Rep. xi. 516. (b) 1 Eng. C. C. 420. (c) Eng. Com. L. Rep. xxiv.
438. (d) 1 Eng. C. C. 118.
Proof of the felonious intent in the taking-goods procured by finding.] The law respecting the converting of goods found, to the finder's own use, depends upon the question of felonious intention. “If," says Lord Hale, “ A. finds the purse of B. in the highway, and takes and carries it away, and the case has all the circumstances that prove it to be done animo furandi, as denying or secreting it, yet it is not felony.” 1 Hale, P. C. 206. But, he adds, where a man's goods are in such a place, where ordinarily they are or may be lawfully placed, and a person takes them animo furandi, it is felony, and the pretence of finding must not excuse. Id. The distinction, therefore, appears to be, that where the goods are found in such a situation that the owner may be presumed to have abandoned the property in them, the converting of them will not be a larceny; but if, from circumstances, the finder must inser that there has been no such abandonment, it will be felony to convert them without naking due inquiry as to the owner. Thus it is said by Lord Hale, that if a man hides a purse of money in his corn-mow, and his servant, finding it, takes part of it: if, by circumstances, it appear that lie knew his master laid it there, it is felony; but then the circumstances must be pregnant, otherwise it may be reasonably interpreted to be a bare finding, being an unusual place for such a depositum. i Hale, P. C. 507.
In the following cases, although in strictness, the goods were acquired [ *539 ] by finding, yet the converting of them was held to be *larceny. A gentleman left a trunk in a hackney coach, and the coachman, taking it, converted it to his own use, this was held to be larceny ; for the coachman must have known where he took the gentleman up, and where he set him down, and ought to have restored his trunk to him. Lamb's case, 2 East, P. C. 664. In a similar case, where a box had been left in a coach, and was found at the house of a Jew, where the coachman had uncorded it, and taken out several articles, some of which were missing ; the coachman being indicted for larceny, the judge directed the jury that, if they thought that the prisoner had detained the box merely in the hope that a reward would be offered for it, and that he meant then to return it to the owner, they ought to acquit him; but if they thought that he had uncorded the box not merely from curiosity, but with an intention to embezzle any part of its contents, and that he had actually taken any of the goods mentioned in the indictment, it would be matter of legal consideration, whether a person so guilty should not be reached as a felon. The jury having found the prisoner guilty ; upon a case reserved, the verdict was approved of by the judges. Wynne's case, 1 Leach, 413; 2 East, P. C. 664, 697 ; and see Sears's case, I Leach, 415, (n.) The prosecutor, having had his hat knocked off in a quarrel with a third person, the prisoner picked it up, and carried it home. Being indicted for larceny, Park, J., said, “If a person picks up a thing and knows that he can immediately find the owner, but, instead of restoring it to the owner, converts it to his own use, this is felony” (1). Pope's case, 6 C. and P. 346 (a).
(1) State v. Weston, 9 Conn. 527. People v. M'Gowen, 17 Wend. 460. Contra, People 0. Anderson, 14 Johns. 294. See Penn. o. Becomb & al., Addis. 386. Tyler v. People, 1 Bree. 227. Porter v. State, Martin & Yerg. 226. State o. Jenkins, 2 Tyler, 379.
(a) Eng. Com. L. Rep. xxv. 346.
A pocket-book, containing bank-notes, was found by the prisoner in the highway, and converted by him to his own use ; upon which Lawrence, J., observed, that if the party finding property in such manner knows the owner of it, or if there be any mark upon it, by which the owner can be ascertained, and the party instead of restoring it, converts it to his own use, such converting will constitute a felonious taking. Anon. 2 Russell, 102. And in a similar case, Gibbs, C. J., stated to the jury that it was the duty, of every man, who found the property of another, to use all diligence to find the owner, and not to conceal the property, (which was actually stealing it,) and appropriate it to his own use. "James's case, 2 Russell, 102.
The doctrine relating to the finding of property was much discussed in a case which arose in the Court of Chancery. Ann Cartwright died possessed of a bureau, in-a secret part of which she had concealed 900 guineas. After her death, Richard Cartwright, her representative, lent the bureau to his brother Henry, who took it to the East Indies, and brought it back without the contents being discovered. It was then sold to a person named Dick, for three guineas, who delivered it to one Green, a carpenter to repair it. Green employed a person named Hillingworth, who discovered the money. He only received a guinea for his trouble, and the guineas were secreted by Green, by his wife, and one Mrs. Sharpe. Cartwright hereupon filed his bill against Mr. and Mrs. Green, and Mrs. Sharpe ; in which bill Dick joined, not claiming the money on *his own [ *540 ] account. The defendants denjurred to the bill, on the ground that an answer to the discovery sought might subject them to criminal punishment. Lord Eldon, after taking time to look into the cases, and consult the judges, said, “ I have looked into the books, and talked with some of the judges and others, and I have not found any one person to doubt that this is a felony. To constitute felony, there must of course be a felonious taking; breach of trust will not do. But, from all the cases in Hawkins, there is no doubt that this bureau, being delivered to Green for no other purpose than to repair, if he broke open any part which it was not necessary to touch for the purpose of repair, with an intention to take and appropriate to his own use what he should find, that is a felonious taking within the principle of all the modern cases, as not being warranted by the purpose for which it was delivered. If a pocket-book containing banknotes, were found 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, there is not the least doubt that it is a felony. So if a pocket-book was left in a hackney-coach, if ten people were in the coach in the course of the day, and the coachman did not know to which of them it belonged, he acquired it by finding, certainly, but not being intrusted with it for the purpose of opening it, this is felony according to the modern cases. There is a vast number of other cases, and those with whom I have conversed upon this point, who are of very high authority, have no doubt upon it.” Cartwright v. Green, 3 Ves. 435; 2 Leach, 952.
Evidence to show that the finder endeavored to discover the true owner, and kept the goods till it might be reasonably supposed that he could not be found; or that he made known his acquisition so that he might make himself responsible for the value, in case he should be called upon by the owner, are circumstances to rebut the presumption of a felonious taking and conversion. 2 East, P. C. 665. “ The intention of a person taking property by finding will be felonious or not, according as his conduct, in