niary advantage. Thus, in the following case, where the object was to destroy the property, the offence was still held to be larceny. The prisoner, in conjunction with the wife of a man, who was charged with stealing a horse, went to the stable of the owner, took the horse out, and backed it into a coal pit. It was objected for the prisoner, on an indictment for stealing the horse, that it was not taken animo furandi, and lucri causa. The prisoner being convicted, the opinion of the judges was taken, who thought the conviction right. Six of the judges held it not to be essential to constitute the offence of larceny, that the taking should be lucri causa. They thought that a taking fraudulently, with an intent wholly to deprive the owner of the property was sufficient; but some of the six thought, that in this case the object of protecting the party charged with stealing the horse might be deemed a benefit, or lucri causa. Two of the judges held the conviction wrong. Cabbage's case, Russ. and Ry. 292 (a). Upon this case it is observed in the report of the criminal law commissioners, (p. 17,) that where the removal is merely nominal, and the motive is that of injury to the owner, and not of benefit to the taker, the offence is scarcely distinguishable from that of malicious mischief.

In the following case, the lucri causa appears not to have been considered as a necessary ingredient of larceny. The prisoners were charged with stealing a quantity of beans. They were servants of the prosecutor, and took care of his horses, for which the prosecutor made an allowance of beans. The prisoners had entered the granary by a false key, and carried away a quantity of the beans which they gave to the prosecutor's horses. Bayley, J., had directed an acquittal in a similar case; but Abbott, J., being informed that several judges had, under the same circumstances, held the offence to be larceny, reserved the point. Eleven of the judges having met, eight were of opinion that it was felony; that the purpose to which the prisoners intended to apply the beans did not vary the case. It was, however, alleged by some of the judges, that the additional quantity of beans would diminish the work of the men who had to look after the horses, so that the master not only lost the beans, or had them applied to the injury of his horses, but the men's labor was lessened, so that the lucri causa, to give themselves ease, was an ingredient in the case. Three of the judges thought it no felony. Morfit's case, Russ. and Ry. 307 (b).

But it has been held by Lord Abinger, C. B., that where a person from idle curiosity, either personal or political, opens a letter, addressed to another person, and keeps it, this is no larceny, even though. [ *534 ] part of his object may be to prevent the letter from reaching its destination. Godfrey's case, 8 C. and P. 563 (c).

The rule with regard to the lucri causa is stated by the criminal law commissioners in the following terms: "The ulterior motive by which the taker is influenced in depriving the owner of his property altogether, whether it be to benefit himself or another, or to injure any one by the taking, is immaterial." 1st Rep. p. 17.

Proof of the taking.] The following is the definition of a felonious taking given by the criminal law commissioners. The taking and carry

(a) 1 Eng. C. C. 292. (b) Id. 307. (c) Eng. Com. L. Rep. xxxiv. 525.

ing away are felonious, where the goods are taken against the will of the owner, either in his absence, or in a clandestine manner, or where possession is obtained either by force or surprise, or by any trick, device, or fraudulent expedient, the owner not voluntarily parting with his entire interest in the goods, and where the taker intends in any such case fraudulently to deprive the owner of his entire interest in the property against his will. 1st Rep. p. 16.

Where goods are once taken with a felonious intent, the offence cannot be purged by a restoration of them to the owner. Thus, the prisoner having robbed the prosecutor of a purse, returned it to him again, saying, if you value the purse take it, and give me the contents, but before the prosecutor could do this the prisoner was apprehended; the offence was held to be complete by the first taking. Peat's case, 2 East, P. C. 557.

Proof of the taking—what manual taking is required.] In order to constitute the offence of larceny, there must be an actual taking, or severance of the thing, from the possession of the owner, for as every larceny includes a trespass, if the party be not guilty of a trespass in taking the goods, he cannot be guilty of a felony in carrying them away. Still, though there must be a taking, in fact, from the actual or constructive possession of the owner, yet it need not be by the very hand of the party accused. For if he fraudulently procure another, who is himself innocent of any felonious intent, to take the goods for him, it will be the same as if he had taken them himself; as if one procure an infant, within the age of discretion, to steal the goods for him, or if, by fraud or perjury, he get possession of the goods by legal process without title. 2 East, P. C. 555; 2 Russell, 95.

The least removing of the thing taken, from the place where it was before, though it is not quite carried off, is a sufficient taking and carrying away to constitute larceny (1); and upon this ground a guest, who had taken the sheets from his bed with an intent to steal them, and carried them into the hall where he was apprehended, was adjudged guilty of larceny. Hawk. P. C. b. 1, c. 35, s. 25; 3 Inst. 108; 2 East, P. C. 555; 1 Leach, 323. So where a person takes a horse in a close, with intent to steal him, and is apprehended before he can get him out of the close. 3 Inst. 109; see further as to Cattle, William's case, 1 Moody, C. C. 107 (a), [*535 ] stated post. The *prisoner got into a wagon, and taking a parcel of goods which lay in the forepart, had removed it to near the tail of the wagon, when he was apprehended. The twelve judges were unanimously of opinion that, as the prisoner had removed the property from the spot where it was originally placed, with an intent to steal, it was a sufficient taking and carrying away to constitute the offence (2). Coslet's case, 1 Leach, 236; 2 East, P. C. 556. But where the prisoner had set up a parcel containing linen, which was lying lengthways in a wagon, on one end, for the greater convenience of taking the linen out, and cut the wrapper all the way down for that purpose, but was apprehended before he had taken any thing, all the judges agreed that this was no larceny, although the intention to steal was manifest. For a carrying away,

(1) Case of Scott & al., 5 Rogers' Rec. 169. (2) State v. Wilson, 1 Coxe, 441.

(a) 2 Eng. C. C, 107,

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, 236, (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 remained 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 Hale, 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. 1 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 merely meant to ride the horses to this place, and to leave them 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, two 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, 1st 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 [*538] will direct an acquittal. 2 East, P. C. 659. Thus where the owner of land takes a horse damage feasant, or a lord seizes it as an estray, though perhaps without title, yet these circumstances explain the intent, and show that it was not felonious; but these facts may be rebutted, as, by showing that the horse was marked, in order to disguise him. 1 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

(a) Eng. Com. L. Rep. xi. 516. 438.

(b) 1 Eng. C. C. 420. (e) Eng. Com. L. Rep. xxiv. (d) 1 Eng. C. C. 118.