Under Pen. Code, § 528, making guilty of larceny one who takes property with intent to deprive the owner of the same, or of the use and benefit thereof, a taking of property without an intent to so permanently appropriate the same as to deprive the owner of the property itself, or its use and benefit, is not "larceny." There must be something more than an intention to retain possession of property, without an intent to actually appropriate it. People v. Kenny, 119 N. Y. Supp. 854, 855, 135 App. Div. 380.

"Larceny" is the wrongful and fraudulent taking or carrying away of the personal goods of another with felonious intent to convert them to the taker's own use and make them his property without consent of the owner; but the felonious intent is not necessarily an intent to gain an advantage for the taker, it being sufficient that there be an intention to deprive the owner of his property; and, even in those jurisdictions where a lucri causa is required, it is not necessary that the benefit to the defendant be of a pecuniary nature. Canton Nat. Bank v. American Bonding & Trust Co., 73 Atl.

684, 685, 111 Md. 41, 18 Ann. Cas. 820.

* *

"Larceny' is the unlawful taking and carrying away the goods or property of another, secretly or furtively with the felonious intent to appropriate them to the use of the trespasser. * From the foregoing authority we deduce the rule that, under the English common law, and consequently under our statute, which is merely declaratory thereof, one cannot commit the crime of 'larceny' or robbery without a felonious intent, or, in other words, he cannot commit them by inadvertence or through ignorance." Where accused took from the possession of the court's receiver certain cattle belonging to him and taken from him under process in an action against him, he was not guilty of robbery or "larceny," in the absence of evidence of felonious intent. Triplett v. Com., 91 S. W. 281, 282, 283, 122 Ky. 35.

Both at common law and under Pen. Code, § 880, and section 883 as amended by Sess. Laws 1897, p. 247, defining larceny as a taking “with intent to deprive or defraud” the true owner, an indictment charging that defendant "feloniously and with the intent then and there to steal," etc., sufficiently charges a felonious intent, the phrase following the word "feloniously" taking nothing from the effect thereof. State v. Allen, 87 Pac. 177, 178, 34 Mont. 403 (citing Wharton's Precedents, 415; State v. Rechnitz, 52 Pac. 264, 20 Mont. 488).

In an action for slander by a daughter against her father, where it was doubtful whether the father meant to charge his daughter with the crime of larceny, the court should have charged that the crime of larceny is committed where one person takes the property of another with intent to convert it to his own use or that of another, 3 WDS.& P.2D SEB.-2

and that the crime is not committed where the taking is done by a person innocently and without any evil intent, and that unless the words were intended to charge the plaintiff with the crime of larceny, and would be naturally so understood by the person hearing them, they should find for defendant. Beams v. Beams, 129 S. W. 298, 299, 138 Ky. 818.

Same-At time of taking

"Larceny" at common-law was the felonious taking of the property of another against his will, with the intent to convert it to the use of the taker, or, as some authorities hold, the use of the taker or a third person. In "larceny" the felonious in tent must have existed at the time of the taking of the property. Williams v. United States Fidelity & Guaranty Co., 66 Atl. 495, 496, 105 Ind. 490.

"Larceny" consists of an intent to trespass on the personal property of another, coupled with an intent wholly to deprive the owner thereof, and the crime is not committed unless such intents concurrently and contemporaneously exist. State v. Teller, 78 Pac. 980, 45 Or. 571 (citing 1 Bish. Crim. Law [7th Ed.] §§ 207, 342; Rapalje, Larceny, § 20; State v. Hull, 54 Pac. 159, 33 Or. 56, 72 Am. St. Rep. 694; State v. Meldrum, 70 Pac. 526, 41 Or. 380; Johnson v. People, 113 Ill. 99).

A felonious intent at the time of the

taking is essential to "larceny." To make the finder of a check guilty of larceny, he must have had an intent or fraudulent purpose to convert it to his own use at the time he took possession thereof, and that he knew or had reasonable means of knowing the owner is evidence of such intent, if he afterState v. wards converts it to his own use. Hinton, 109 Pac. 24, 27, 56 Or. 428.

In every "larceny" there must be a trespass in the original taking of the property; that is, in larceny the felonious intent must have existed at the time of the taking. State v. Casey, 105 S. W. 645, 647, 207 Mo. 1, 123 Am. St. Rep. 367, 13 Ann. Cas. 878 (citing State v. Shermer, 55 Mo. 83; State v. Ware, 62 Mo. loc. cit. 602).

Defendant took a bull from the range, believing it to be his own, and later, ascertaining that it belonged to another, converted it. There was no willful trespass in the taking. Held, that it was not "larceny," as the felonious intent at the time of taking was absent, and, there being no trespass, the doctrine that a person, taking property by trespass, who subsequently wrongfully converts it, is guilty of larceny, had no application here. Wilson v. State, 131 S. W. 336, 96 Ark. 148, 41 L. R. A. (N. S.) 549, Ann. Cas. 1912B, 339.

The crime of "larceny," under the statute defining "larceny" as the taking of personal property accomplished by fraud or stealth, with intent to deprive another there

of, may be shown by proof that at the time of the taking of the property it was taken with the felonious intent to convert it to the taker's own use, and to deprive the owner thereof, regardless of the fact as to whether the taking was accomplished by fraud or stealth. To constitute larceny the criminal intent must exist at the time of the taking, and the taking may be by stealth with such criminal intent, or the taking may be with the owner's knowledge through fraudulent practice. Flohr v. Territory, 78 Pac. 565, 570, 14 Okl. 477.

Asportation

Any felonious taking or asportation of personal property may be "larceny"; therefore the omission of the word "away" from a charge as to "the felonious taking and carrying of the personal property of another" is not per se error. Presley v. State, 57 South. 605, 607, 63 Fla. 37.

In a trial under an indictment charging defendant with larceny of a suit case and its contents from a railroad depot the court, after defining larceny as the felonious stealing, taking and carrying away of the personal property of another, charged that if defendant actually took into his hands the property named in the indictment and lifted it from the place where the owner had put it, so as to entirely remove it from the place where it was put defendant was guilty of larceny, and that if the jury did not find that defendant took the property from the depot, but did find that he took and carried it away from a place outside of any building, the verdict should be guilty of larceny, fixing therein the value of the property stolen. Held

that, in the absence of a request by defendant for instructions, the instructions were as specific as the case demanded. State v. McDermet, 115 N. W. 884, 885, 138 Iowa, 86. Asportation to new jurisdiction as new offense

Where defendant induced R., who had previously been employed by a dray company authorized to receive goods for a consignee of certain shoes, and who was known to the servants of the carrier holding such goods for delivery, to go to the freight depot of the carrier in Illinois after his employment by the dray company had terminated, and procure a load of shoes from the carrier, and R. obtained such shoes, and delivered them to a person other than the consignee in Missouri, such act constituted "larceny," and not "false pretenses," and was therefore punishable under Rev. St. 1899, § 2362, providing that every person who shall steal the property of another in any other state and shall bring the same into Missouri may be convicted and punished for larceny as though the property was stolen in Missouri. State v. Mintz, 88 S. W. 12, 16, 189 Mo. 268.

Under section 285, Crimes Act (Gen. St. 1901, § 2286), providing that every person

who shall steal or obtain by robbery the property of another in any other state, territory, or country, and shall bring the same into this state, may be convicted and punished for larceny in the same manner as if such property had been feloniously stolen or taken within this state, and section 83, Crimes Act (Gen. St. 1901, § 2076), making the alteration of brands with intent to steal or convert the branded animal "larceny," one who in another state marks or brands, or alters the mark or brand of, any animal, the subject of larceny and the property of another, with intent to steal it or convert it to his own use, so that if the marking, branding, or alteration were done in this state he would be guilty of the larceny as defined by section 83, may be convicted and punished for larceny under section 285, whether or not the original taking may have been a crime against the laws of the state or country where it was committed. State v. White, 92 Pac. 829, 831, 76 Kan. 654, 14 L. R. A. (N. S.) 556.

Confidence game distinguished
See Confidence Game.
Consent of owner

As used in Cr. Code, § 114, making it criminal to steal money or other property, the word "steal" includes all the elements of larceny at common law. If the original taking of the property is with the consent of the owner, the crime of "larceny" is not committed. Cohoe v. State, 113 N. W. 532, 533, 79 Neb. 811.

Where the owner of personalty voluntarily parts with its possession for a particusion for that purpose has at the time a fraudlar purpose, and the person receiving possesulent intent to make use of such possession as a means of converting the property to his own use, the crime is larceny. Bivens v. State, 120 Pac. 1033, 1036, 6 Okl. Cr. 521.

Where one by fraud, trick, or false pretense induced the owner to part merely with the possession of his property, there being no intent to pass title, and the party receiving takes it with intent fraudulent to convert it to his own use, the crime is "larceny." State v. Loser, 104 N. W. 337, 340, 132 Iowa, 419 (citing State v. Edwards, 41 S. E. 429, 51 W. Va. 220, 59 L. R. A. 465; State v. Hall, 40 N. W. 107, 76 Iowa, 85, 14 Am. St. Rep. 204; People v. Morse, 2 N. E. 45, 99 N. Y. State v. Anderson, 47 Iowa, 142; People v. Rae, 6 Pac. 1, 66 Cal. 423, 56 Am. Rep. 102; Loomis v. People, 67 N. Y. 329, 23 Am. Rep. 123; 1 Whart. Cr. Law, § 1179).

662;

Where it appeared that the whole scheme by which a person obtained money was a fraud from the beginning and that possession obtained by mere trickery with a present intent to convert it to his own use that he had no rightful possession, and that delivery was made to him without any intent to pass the title, but merely to enable

Converting or claiming property found Where accused, as agent of prosecutor, had an interest in certain rent collected by him, he could not be convicted of larceny by embezzlement of such rent, under Hurd's Rev. St. 1909, c. 38, § 75, providing that, if an agent fraudulently embezzles or converts property in his hands belonging to his employer, he shall be guilty of larceny. People v. O'Farrell, 93 N. E. 136, 139, 247 Ill. 44.

On an information drawn under Comp. Laws 1909, § 2591, defining larceny generally, a conviction may be had under section 2592 on proof that accused found lost property with means of inquiry as to the owner, and appropriated the same to his own use without a reasonable effort to discover the owner; the latter section only prescribing a rule of evidence. Berry v. State, 111 Pac. 676, 677, 4 Okl. Cr. 202, 31 L. R. A. (N. S.) 849.

When a delivery of goods is made for a specific purpose, the possession is still supposed to reside in the first proprietor, and, where any person has the bare charge of another's effects, legal possession remains in the owner, and therefore, where the finder of the purse told defendant's wife thereof, and she stated that the purse looked like her husband's and took the same telling the finder that, if it did not belong to her husband, she would return it, and afterwards possession was given to him on his claim of ownership, when in fact it belonged to another, the legal possession remained in the finder, and defendant's claim thereto constituted larceny. Williams v. State, 75 N. E. 875, 877, 165 Ind. 472, 2 L. R. A. (N. S.) 248 (citing

Lar

Under

Under Rev. Pen. Code, §§ 605, 607, 608, as amended by Laws 1903, p. 175, c. 151, "larceny" is the taking of personal property accomplished by fraud or stealth and with intent to deprive another thereof. Larceny is divided into two degrees, the first of which is termed "grand larceny"; the second, "petit larceny." Grand larceny is larceny committed in either of the following cases: (1) When the property taken is of value exceeding $20. (2) When such property, although not of value exceeding $20, is taken from the person of another. (3) When such property, although not of value exceeding $20, is a bull, steer, cow, heifer, or calf, or is a stallion, mare, gelding, horse, or colt. ceny in other cases is petit larceny. Rev. Pen. Code, §§ 605, 607, 608, as amended by Laws 1903, p. 175, c. 151, making it grand larceny to take property exceeding $20 in value, or when the property, though not of value exceeding $20, is a stallion, mare, gelding, horse, or colt, there is no variance between an information alleging larceny of a horse and proof of the larceny of a gelding, especially in view of Rev. Code Cr. Proc. § 569, providing that neither a departure from the form or mode prescribed as to any pleading nor error therein renders it invalid. unless it has prejudiced defendant, and section 229, providing that an indictment is sufficient if the act charged is clearly set out in ordinary and concise language, so as to enable a person of common understanding to know what is intended. State v. Matejousky, 115 N. W. 96, 98, 22 S. D. 30.

To feloniously take from the person of another the goods of that other and carry the same away has always been a crime, punishable as either grand or petit "larceny," so that the Legislature in defining and making punishable the specific act of feloniously taking property from the person of another did not create a new offense, but recognized such act as a degree of larceny in which the grades of grand and petit larceny are included, so that a defendant charged with larceny from the person may properly be convicted of any of the lesser offenses、 proved. State v. Clem, 94 Pac. 1079, 1080, 49 Wash. 273.

Element of burglary
See Burglary.

Under Comp. Laws 1909, § 2554, making

Different grades