Rex v. Patch, 206. Rex v. Horner, Sect. 20. So also to obtain the delivery of money with a design feloniously to take it away, under the false pretence of having found a diamond ring of great value, or, as it is called, by the practice of ring-dropping, has been determined to be a taking from the possession of the owner. + Sect. 21. So also where the prisoner decoyed the prosecutor Cald. Rep. 295. into a public-house, and introduced the play of cutting cards, and then, under pretence of having won, swept the prosecutor's money into his hand, and ran away with it. Wilkins's Case, 1789, on a case (a) Charlewood's Case, Cases C. L. 317. (b) Pepper's Case, O. B. Oct. Sess. 1793. (c) Rex v. Nicholson, Jones, and Chapple, O. B. Jan. Sess. 1794, + Sect. 22. So where a tradesman delivered a parcel of goods to his servant to carry to a customer, and the prisoner contrived to meet the servant on his way, and on pretence that he was going, by the desire of the customer, to the master's shop, to fetch this parcel in lieu of another, obtained the delivery of it, by exchanging it for a parcel of old rags of no value, which he had purposely with him, it was determined to be a felonious taking of the property from the possession of the master. Sect. 23. But if it appear that the horse, chaise, or other property was fairly and bona fide hired, (a) or that the goods were really sold, and a credit given to the party, (b) or that the person actually played at cards on his own account, and lost the money, (c) the property in such cases is changed, and the possession of it out of the first owner, and therefore the fraudulent conversion of it afterwards cannot be felony; for to constitute larceny, the felonious design must exist at the time the property is obtained. (4) coram MACDONALD, Chief Baron, present GROSE and ROOKE, Justices. See the case of 1 Show. 50. where in Tri nity Term, 1 this question was argued on a special ver dict, and deter mined to be no felony. Sect. 24. It seems not to have been clearly settled at common Rex v. Meers, law, whether a lodger who stole the furniture of his lodgings, were indictable as a felon, inasmuch as he had a kind of special property in the goods, and was to pay the greater rent in consiWill. and Mary, deration of them; but if it had appeared clearly, from the whole circumstances of the case, that the first intention of the party in coming to the house was not to have the conveniency of lodging in it, but only, under the colour thereof, to have the better opportunity of rifling it, and to elude the justice of the law, by endeavouring to keep out of the letter of it, by gaining a possession of the goods with the consent of the owner, I cannot see any good reason why such a person should not be esteemed as much a felon as a mere stranger, inasmuch as his whole design was to defraud the law, and the consent of the owner was grounded on a supposition of his coming as a lodger, and could never have been gained if the truth had appeared, which the party shall get no advantage by falsifying; and it brings a contempt upon the justice of the nation to suffer its laws to be evaded by such little contrivances. Kely. 24.81. (4) The result and principle of these cases when a delivery is obtained by fraud is this; that when the delivery is obtained from the owner by fraud and falsehood, with an intent at the time to steal the article delivered, it is a felony, and the delivery in fact by the owners will not pass the legal possession. But if a credit was given by the owner, and he intended to part with his goods absolutely, and not merely the possession, then it is not a felony, although the person receiving them intended never to pay for or return them. contrivances. However, this question is now settled by the statute 3 and 4 Will, and Mary, c. 9. As to THE SECOND POINT, viz. What shall be said to be such a carrying away of the thing stolen, as will bring the case within the word asportavit. Sect. 25. The word " asportavit" is necessary in every indictment of larceny; and it seems, that any the least removing (5) of the thing taken from the place where it was before, is sufficient for this purpose, though it be not quite carried off; and upon this ground the guest, who, having taken off the sheets from his bed with an intent to steal them, carried them into the hall, and was apprehended before he could get them out of the house, was adjudged guilty of larceny. Sect. 26. So also was he who having taken a horse in a close Dalt. p. 501. with an intent to steal him, was apprehended before he could get Kely. 31. him out of the close. Sect. 27. Neither is he less guilty who pulls off the wool from (a) See Maranother's sheep, or (a) strips their skins, with an intent to steal tin's Case, them. Sect. 28. So also is he who intending to steal plate, takes it out of a trunk wherein it was, and lays it on the floor, and is surprised before he can carry it off. Cases C. L. 2d edit. 158. Kely. 31. 1 Hale, 508. + Sect. 29. So also where a man, with a felonious intention, Coslet's Case, had removed goods from the head to the tail of a waggon, it held a sufficient removal to constitute a carrying away. was Cases C. L. 204. + Sect. 30. So also where a diamond ear-ring was snatched Lapier's Case, from a lady's ear, but lodged in the curls of her hair, it was held Cases C. L. to be a sufficient asportation, although it was not taken away by the thief. 264. Sect. 31. But where a man was indicted for stealing the Cases C. L. contents of a bale of goods in a waggon, and it appeared that 204. notis. the bale lay horizontally, and that he had set it on its end, but had not removed it from the spot, it was held, upon a case reserved, not to be a sufficient carrying away. As to THE THIRD POINT, viz. By whom larceny may be committed. (6) Pult. 127. Sect. 32. It is certain, that a feme covert may be guilty thereof 1 Hale, 514. by stealing the goods of a stranger, but not by stealing her hus- 637, 638. band's, because a husband and wife are considered as one person B. Cor. 14. 77. in law; and the husband, by endowing his wife at the marriage Dalt. c. 104. with all his worldly goods, gives her a kind of interest in them; 18 Ed. 3. 32. for which cause, even a stranger cannot commit larceny in taking S. P. C. 94. the goods of the husband by the delivery of his wife; as he Crom. 35. (5) The civil law and the law of England agree on this point," Quum ergo furtum sit contrectatio, i.e. rei motio a loco." Heinec. Elem. Jur. § 1041. may 13 Ass. 5. (6) Joint tenant or tenant in common of a chattel cannot be guilty of stealing the same from each other, for the property and possession is in both. (1 Hale, 513.) Grotius de c. 2. s. 6, 7. Puffend, b. 2. c. 6. may by taking away the wife by force and against her will, together with the goods of the husband. (7) Sect. 33. It is said to be no felony for one reduced to extreme necessity, to take so much of another's victuals as will save him from starving; but if such his necessity be owing to his unthriftiness, surely it is far from being any excuse. And this seems to be an unwarranted doctrine, borrowed from the notions of 1 Hale, 54. 565. some civilians; at least it is now antiquated, the law of England admitting no such excuse at present. But a judge ought to be tender in these cases, and use much discretion and moderation. Britton, c. 10. 4 Comm. 31.. 1 Mod. 89. Allen, 83. 1 Vent. 187. S. P. C. 25. 2 Comm. 16. As to THE FOURTH POINT, viz. What are such goods, (8) the stealing whereof may amount to felony. Sect. 34. FIRST, They ought to be no way annexed to the 1 Hale, 509. freehold. And therefore it is no larceny, but a bare trespass, to steal corn or grass, growing, or apples on a tree, or lead on a church or house; but it is larceny to take them being severed from the freehold, whether by the owner, or even by the thief Strange, 1137. himself, if he sever them at one time, and then come again at another time and take them.-And the general reason of this distinction between chattels fixed to a freehold and those lying loose, perhaps may be this; because the former, not being to be removed without trouble and difficulty, are not so liable to be stolen, and therefore need not to be secured by so severe laws as the other require. But many of the descriptions of property which come within this notion of an adherence to the freehold, being thereby placed in a situation extremely precarious and unprotected, the legislature has from time to time imposed various penalties upon the stealing of them; which will be fully considered in a subsequent part of this chapter. Strange, 1133. 3 Inst. 109. B. Cor. 155. Sect. 35. SECONDLY, They ought to have some worth in themselves, and not to derive their whole value from the relation they bear to some other thing, which cannot be stolen, as paper or parchment on which are written assurances concerning lands, or obligations, or covenants, or other securities for a debt or other chose in action. And the reason wherefore there can be no felony in taking away any such thing seems to be, because, generally speaking, they being of no manner of use to any one but the owner, are not supposed to be so much in danger of being stolen, and therefore need not to be provided for in so strict a manner as those things which are of a known price, and every body's (7) If a wife commit larceny in the company of her husband, both of them may be indicted, and if the husband be convicted the wife shall be acquitted. But if the husband be acquitted, and it appear that the felony was her own voluntary act, (by which must be understood that the husband if present had no knowledge of or participation in the fact,) she may, upon the same indictment, be convicted, for the charge is joint and several. And if a woman insist that she is the wife of the man in whose company the felony was done, she may be indicted by her husband's name and her own with an alias and the addition of spinster, and it will lie upon her to prove her coverture, or else she may be found guilty. (2 East, p. 560.) (8) There can be no property in the human body, either living or dead. In the case of Dr. Handasyde, trover was brought against him for a lusus naturæ, the bodies of two children which grew together. Lord Chan. Willes held the action would not lie, as no person had any property in corpses. It is usual, however, to indict those who steal dead bodies, as offenders against public decency. A late statute has also passed, 54 Geo. 3. c. 101. making it felony to steal any child under 10 years of age. Vide ante, p. 128. the statute. body's money; and for the like reason it is no felony to take away a villein, or an infant in ward, &c. 3 Н. 8. 3. Sect. 36. THIRDLY, They ought not to be things of a base S Inst. 102. nature, as dogs, cats, bears, foxes, monkeys, ferrets, and the like, 7 Co. 18. which, howsoever they may be valued by the owner, shall never Crom. 36. be so highly regarded by the law, that for their sakes a man shall Dalt. c. 103. die; as he may for stealing a hawk, known to him to be re- 1 Hale, 512. claimed, not only by force of the statute of 37 Ed. 3. c. 19. but also at common law, in respect of that very high value which was formerly set upon that bird. Sect. 37. But by the 10 Geo. 3. c. 18. stealing any dog or dogs of any kind or sort whatsoever from the owner thereof, or from any person entrusted by the owner therewith, or knowingly selling, buying, receiving, harbouring, keeping, or detaining any such dog or dogs, is a misdemeanor. As to the FIFTH POINT, viz. How far the goods taken away ought to belong to another. 2 Comm. 393. 22 Ass. 99. Sect. 38. It seems agreed, that the taking of goods whereof no 1 Hale, 512. one had a property at the time, cannot be felony; and therefore, B. Cor. 190. that he who takes away treasure-trove, or a wreck, waif, or stray, 3 Inst. 108. before they have been seized by the persons who have a right S. P. C. 25. thereto, is not guilty of felony, and shall be only punished by fine, &c. Sect. 39. Neither shall he who takes a fish in a river or other great water, wherein they are at their natural liberty, be guilty of felony, as he may be who takes them out of a trunk or pond, &c. Sect. 40. Upon the like ground it seems clear, that a man Vide post, cannot commit a felony by taking deer, hares, or conies, in a in this chapter. forest, chase, or warren, or old pigeons being out of the house, &c. 22 H. 6. 59. 164. Sect. 41. But it is agreed, that one may commit larceny in taking 7 Co. 18. such or any other creatures feræ naturæ, if they be fit for food, 22 Ass. 95. and reduced to tameness, and known by him to be so; and it 18 Ed. 4. 8. seems the most plausible opinion, that it is felony to steal wild B. Cor. 92, 155. pigeons in a dove-house shut up, or hares or deer in a house, or S. P. C. 25. even in a park, inclosed in such a manner that the owner may 3 Inst. 109. take them whenever he pleases, without the least danger of their 18 H. 8. 2. escaping, in which case they are as much in his power as fish in Dalt. c. 92. a pond, or young pigeons, or hawks in a nest, &c. in taking of which, for the like reason, it seems to be agreed that felony may be committed. Dalt. c 103. 3 Inst. 98. 109. Sect. 42. Also it seems clear, that one may commit felony by 1 Hale, 511. taking away swans marked or pinioned, or those which are 7 Co. 17. 18. unmarked, if they be kept in a pond or private river; neither do I see why it is not as much felony to steal the eggs of such swans By 31 Hen 8. c. or hawks, as it is to steal their young ones, unless it be because 12. it is felony 11 Hen. 7. c. 17. has appointed a less punishment for this to take hawks' offence. eggs out of any nests in the king's lands. This is repealed by the general words of 1 Mary, c. 1. Sect. 43. However, there is no doubt but that the taking of domestic beasts, as horses, mares, colts, &c. or of any crea tures 2 Hale, 290. 7 Ed. 4. 14, 15. 3 Inst. 110. B. Indict. 33. C. Eliz. 145. 179. 1 Hale, 512. tures whatsoever, which are domita natura, and fit for food, as ducks, hens, geese, turkeys, peacocks, or their eggs, or young ones, may be felony. Sect. 44. Also it is said, that there may be felony in taking goods the owner whereof is unknown, in which case the king shall have the goods, and the offender shall be indicted for taking bona cujusdam hominis ignoti. Sect. 45. And it seems, that in some cases the law will rather feign a property, where in strictness there is none, than suffer an offender to escape; and therefore it is said, that he who takes away the goods of a chapel, or abbey, in time of vacation, may be indicted, in the first case, for stealing bona capella, being in the custody of such and such; and in the second, for stealing bona domus vel ecclesiæ, &c.; and à fortiori, therefore, it follows, that he who steals goods belonging to a parish-church, may be indicted for stealing bona parochianorum. Sect. 46. And it hath been adjudged, that he who takes off a (b) 3 Inst. 110. shrowd (b) from a dead corpse, may be indicted as having stolen it from him who was the owner thereof when it was put on; for It is said, 2Hale, a dead man can have no property. 12 Co. 113. 1 Hale, 515. 290. and 8 Mod. 249. that a property must be proved in somebody at the trial, or it shall be presumed in the prisoner, from his plea of not guilty. (e) 7 Hen. 6. 43. B. Cor. 45. 160. 5 Hen. 7. 18. C. Eliz. 536. Sect. 47. And there is a special case wherein it is said, that a man may commit larceny by the taking of things whereof the absolute property is in himself; as if A. (c) deliver goods to B. being a tailor, or carrier, &c. and afterwards, with an intent to make him answer for them, fraudulently and secretly take them away; for B. had a special kind of property in the goods so delivered to him, in respect whereof, if a stranger (d) had stolen them, (d) Keilw. 70. he might have been indicted generally as having stolen B.'s goods, and the injury is altogether as great, and the fraud as base, where they are taken away by the very owner. 3 Inst. 110. Dalt. c. 103. 22 Ass. 39. B. Cor. 84. 85. As to THE SIXTH POINT, viz. Of what value the goods stolen must be. Sect. 48. If they be but of the value of twelve pence, or under, the offence can be but petit larceny. S. P. C. 24. 2 Roll. 78. Dalt. c. 101. Inst. 189. Kely. 68. 4 Com. 238. S. P. C. 24. S. P. C. 24. Dalt. c. 101. Petrie's Case, Sect. 49. Yet if two persons, or more, together, steal goods above the value of twelve pence, every one of them is guilty of grand larceny, for each person is as much an offender as if he had been alone. Sect. 50. Also it seems the current opinion of all the old books, that if one at several times steal several parcels of goods, each under the value of twelve pence, but amounting in the whole to more, from the same person, and be found guilty thereof on the same indictment, he shall have judgment of death, as for grand lar ceny. Sect. 51. But the severity of this rule of law is now obsolete; and it seems to be settled, that the value of the property stolen must not only be, in the whole, of such an amount as the law |