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": 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 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 master's 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 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. (125) 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 (126). But if he had not the possession, but only the care and oversight of the goods, as the butler of plate, the shepherd of sheep, (c) 3 Inst. 107. wise, as the intention of the party was, at the time of obtaining the goods, felonious or innocent; for there can be no doubt that, if a person hire a horse with the absolute intent never to return him, this would be felony; or indeed in any parallel case where the act was done animo furandi 1. (125) This act was made perpetual by 5 Eliz. c. 10. (126) This exception is made by 12 Ann. stat. 1. c. 7. The 39 Geo. III. c. 85. enacts, that servants or clerks receiving any money, or other effects, upon their master's account, and fraudulently embezzling or secreting any part thereof, shall be deemed to have feloniously stolen the same; and such offenders, their advisers, procurers, aiders, or abettors, shall on conviction be liable to be transported for a period not exceeding fourteen years. See Major Semple's case, Leach, 327. See also Leach, 206, 226. 239. [231] and carrying away, or mere removal, [232] animo furandi, sheep, and the like, the embezzling of them is felony at common law. 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, and so it is declared to be by statute 3 & 4 W. & 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 intent to charge the hundred with the loss according to the statute of Winchester'. 2. THERE must not only be a taking, but a carrying away : cepit et asportavit 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. 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 surprized before he can make his escape with it; this is larceny ". 3. THIS taking, and carrying away, must also be felonious; that is, done animo furandi: or, as the civil law expresses it, lucri causa 1. This requisite, besides excusing those who labour 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 neighbour takes another's (d) 1 Hal. P. C. plough, (f) Foster, (h) 1 Hawk. P. C. 93. 506. plough, that is left in the field, and uses it upon his own land, and then returns it: if, under colour of arrear of rent, where none is due, I distrein another's cattle, or seize them: all these are misdemesnors and trespasses, but no felonies'. 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. : of another. 4. THIS felonious taking and carrying away must be of the personal goods the personal goods of another (127): 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 a subtilty 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 immoveable". And if they were severed severed by violence, so as to be changed into moveables; and at the same time, by one and the same continued act, carried off by the person who severed them; they could never be said to be taken from the proprietor, in this their newlyacquired 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 thief severs 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 comes again at another time, when they are so turned into personalty, and takes them away; it is larceny and so it is, if the owner, or any one else, has severed them ". And now, by the statute 4 Geo. II. c. 82. 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 (128); 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, pease, parsnips, or the roots of madder when growing, are punishable criminally, by whipping, small fines, imprisonment, and satisfaction 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 (n) 3 Inst. 109. 1 Hal. P. C. 510. Car. II. c. 2. 31 Geo. II. c. 35. 13 Geo. III. c. 32. plants (0) Stat. 43 Eliz. c. 7. 15 6 Geo. III. c. 48. 9 Geo. IIL. c. 41. (128) This act is much extended by 21 Geo. III. c. 68, which enacts, that all persons who shall steal, or remove with intent to steal, any copper, brass, bell metal, utensil, or fixture, being fixed to any dwelling-house, or out-house, or in any garden, yard, orchard, or outlet; or any iron rails; shall be deemed guilty of felony, and may be transported for seven years. plants to 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 constituted a felony liable to transportation for seven years (129). Stealing ore out of 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 2: 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. [234] BONDS, bills, and notes, which concern mere choses in action, were also at the common law held not to be such goods whereof larceny might be committed; being of no intrinsic value, 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 (p) Oak, beech, chesnut, walnut, ash, elm, cedar, fir, asp, lime, sycamore, birch, poplar, alder, larch, maple, and hornbeam. P. C. 510. Stra. 1137. (r) See vol. II, page 458. (q)1 Hal. (s) 8 Rep. 33. offence by fine of 40s. for the (129) And by 45 Geo. III. c. 66, persons, without legal title, taking bark from the woods of his majesty, or from those of any of his subjects,gible rogues. are to be punished for the first VOL. IV. R |