To account annually the commonwealth. By statute 1783, c. 51, s. 4, it is enacted, that justices with the treasurer of of the peace shall account annually, with the treasurer of the commonwealth, the treasurers of their respective counties, and the town treasurer, as the case may be, for all fines by them received or imposed, upon pain of forfeiting the sum of ten pounds, to be sued for and recovered by the treasurer of the commonwealth, the county or town treasurer, for the time being, to which the said fines may respectively belong. Forfeiture for neglect. To account semi-an surer of the county, will exempt the jus tice from the forfeitures of the above act, By a subsequent statute 1791, c. 53, s. 4, every justice nually, with the trea- of the peace is directed to pay all fines and forfeitures by him already received, or that he may receive upon convictions and sentences before himself, as well those which accrue to the commonwealth, as those which accrue to the county, to the treasurer of the county whereof he is justice of the peace; and that he render his account, and pay such fines once in every six months from and after the passing of the act; and that such payments shall exempt such justice of the peace, from all penalties inflicted by the law for non-payment of such fines and forfeitures into the treasury of the commonwealth. Sec. 4. And by the same statute, if any justice of the peace shall neglect to account for, and pay in such fines and Forfeiture for neglect. forfeitures to the treasurer of the county whereof he is justice as aforesaid, he shall forfeit and pay for every such neglect the sum of ten pounds, to such county treasurer, to be by him recovered with costs, one half of such forfeiture to his own use, and the other half to the use of the commonwealth. Ibid. Duty of the county treasurer. And it shall be the duty of every county treasurer, from time to time, to call upon the justices of the peace within his county, and to require them to account to him for, and pay in such fines and forfeitures; and to prosecute such as shall be delinquent. TITLE XCV. LARCENY. LARCENY, or theft, is distinguished by the law, into two sorts; the one is called simple larceny; the other bears the name of mixed or compound larceny. Simple larceny is the felonious taking and carrying away of the personal goods of another. Mixed or compound larceny, is such as has all the properties of the former, but is accompanied with either one, or both of the aggravations of a taking from one's house, shop, or person. 1. 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 felony in carrying them away. Hence it is, that if the party obtain possession of the goods lawfully, as upon a trust for, or on account of the owner, by which he acquires a kind of special property in them, he cannot afterwards be guilty of felony in converting them to his own use, unless by some new and distinct act of taking, as by severing part of the goods from the rest, with intent to convert them to his own use, he thereby determines the privity of the bailment, and the special property thereby conferred upon him: in which case he is as much guilty of a trespass against the virtual possession of the owner by such second taking, as if the act had been done by a mere stranger. 2. The least removal of the thing taken, from the place where it was before, is a sufficient asportation though it be not quite carried off. 4 Bl. Com. 229. Ibid. Ibid. 239. 2 East's, C. L. 554. Ibid. 555. Ibid. Ibid. 556. 4 Bl. Com. 232. 2 East's, C. L. 587. 4 Bl. Com. 23. 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 out of the house, was adjuged guilty of larceny. So also was he, who having taken a horse in a close with intent to steal it, was apprehended before he could get it out of the close. And such was the case of him, who, intending to steal plate, took it out of the trunk wherein it was, and laid it on the floor, but was surprized before he could remove it any further. So where the prisoner took up a parcel in a waggon, and carried it from one end of the waggon to the other, with intent to steal it; although it was never taken out of the carriage, but he was seized in the fact; yet, by all the judges, this was a sufficient asportation to constitute felony. 3. This felonious taking and carrying away must be of the personal goods of another: for if they are things real, or savour of the realty, larceny at common law cannot be committed of them. For at common law it is merely a trespass, and not a felony to take such things: the reason of which seems to be, that things annexed to the freehold, being usually more difficult to remove, are less liable to be stolen, and therefore need not be secured by such severe laws as mere personal goods require, Wherefore no larceny can be committed of trees, grass, hedges, stones, or lead of a house, or the like. But when once they are severed from the freehold, either by the owner, or even by the thief himself, if there be an interval between his severing and taking them away, so that it cannot be considered as one continued act, it would then be felony to take them away. Thus of wood cut, grass in cocks, stones dug out of a quarry, larceny may be committed. Larceny also cannot be committed of such animals, in which there is no property either absolute or qualified; as of beasts that are ferae naturae, and unclaimed, such as deer, hares and conies, in a forest, chase or warren; fish, in an open river or pond; or wild fowls at their natural liberty. But if they are reclaimed or confined, and may serve for food, it is otherwise, even at common law : for if deer are so inclosed in a park that they may be taken at pleasure, fish in a trunk, and pheasants or partridges in a mew, larceny may be committed of them. But there are some animals which, though they may 2 East's C. L. 614. be reclaimed, yet are considered of so base a nature that no larceny can be committed of them, such as bears, foxes, monkies, cats, ferrits and the like. Of domestic animals, such as sheep, oxen, horses, and the like, or of domestic creatures, which are fit for food, as hens, ducks, geese, turkeys, peacocks, &c.; and also of their eggs, larceny may be committed. So 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 now by statute, they are put upon the same footing in respect to larcenies, as other valuable personal property in possession. Ibid. 4 Bl. Com. 234. Stat. 1804, c. 143, s 1. 4. This taking and carrying away must also be fe- 4 Bl. Com. 232. lonious. The felonious intent is essential to the offence; and in order to make it felony, the intent to steal ought to be at the time when the party first gets possession of the goods; such a possession at least as is distinct from that of the owner; for a fraudulent intent, originating afterwards, to convert the goods to his own use, is not felony ; but the original felonious intent may be collected from subsequent acts. It may be laid down generally, that wherever the property of one man, which has been taken from him without his knowledge or consent, is found upon another, it is incumbent on that other to prove how he came by it; 2 East's C. L. 655. Ibid. 656. Ibid. 656, 657. Ibid. 657. otherwise the presumption is, that he obtained it feloniously. This, like every other presumption, is strengthened, weakened or rebutted by concomitant circumstances, too numerous in the nature of the thing to be detailed. It will be sufficient to allude to some of the most prominent ; such as, the length of the time which has elapsed between the loss of the property and the finding it again; either as it may furnish more or less doubt as to the identity of it; or as it may have changed hands oftener in the mean time; or as it may increase the difficulty to the prisoner of accounting how he came by it; in all which considerations, that of the nature of the property must generally be mingled. So the probability of the prisoner's having been near the spot from whence the property was supposed to be taken at the time; as well as his conduct during the whole transaction, both before and after the discovery, are material ingredients in the investigation. But the bare circumstance of finding in one's possession, property of the same kind which another has lost, unless that other can, from marks or other circumstances, satisfy the court and jury of the identity of it, is not, in general, sufficient evidence of the goods having been feloniously obtained. Though where the fact is very recent, so as to afford reasonable presumption that the property could not have been acquired in any other manner, the court are warranted in concluding it is the same, unless the prisoner can prove the contrary. Thus a man being found coming out of another's barn; and upon search, corn being found upon him of the same kind with what was in the barn, is pregnant evidence of guilt. So persons employed in carrying sugar, and other articles from ships and wharves, have often been convicted of larceny, upon evidence that they were detected with property of the same kind upon them, recently upon coming from such places, although the identity of the property, as belonging to such and such persons, could no otherwise be proved. But this must at least be un |