LARCENY.

Larceny is "the felonious taking and carrying away of the personal goods of another." This offence is divided at common law into grand and petty larceny, the former when the value of the thing stolen amounts to twelve pence or more, the latter when under that value. It is also further divided into simple larceny, contra-distinguished from mixed or compound larceny, which last is the stealing from one's house or person. In these distinctions there are mɛny niceties and some hardships, from nearly the whole of which wo are judiciously exempted from the statute of the state, which acknowledges but one kind of larceny, including every degree of that offence, except that of forcible larceny, or robbery, from the person, already treated of under the head of robbery, and as in other cases, confides the measure of the punishment in a great degree to the discretion of the court.

The essentials to this offence are five fold.

First, something must be taken, and without the owner's consent; for if the owner voluntarily deliver any thing to another, though be only as a loan, or on hire, or in trust, and he to whom it is delivered carry it off, this is only a civil offence for which the party injured may have his action for damages, but it is not larceny. But it is now fully established that in all cases where horses or carriages are hired and are never returned, if the jury be of opinion from the circumstances that the persons to whom they are delivered, intended at the time of hiring never to restore them, or that the intention to steal them or convert them to their own use, cxiisted in their minds at the time they gained possession, they are guilty of felony. Leach 189, 327. And where a person hires a horse for a limited time, or to go a specific journey, and after complying with the terms of the special agreement, sells it, his possession being then unsupported by any privity of contract or consent of the owner, he is held to be guilty of felony. Ibid. And now it is generally held that if the possession of property be obtained by any contrivance with a design to steal it, it amounts to felony. Ibid 206, 236, 239.

If I send goods by a carrier and he carries them off this is not larceny; but if he open a package or pierce a vessel and take out part of the contents, or if he carry it to the place appointed, and afterwards carry off the whole, this is larceny. 4 Blac. Com. 30.-— But a bare non-delivery shall not be intended to arise from a felonious design, neither is it larceny for a servant to carry off goods entrusted to his keeping; but if he had not the full possession of them, but only the care and oversight of them, as the butler of plate, or the shepherd of sheep, and the like, the embezzleing of them is felony. If a guest rob a tavern of a piece of plate, it is larceny; for the use only and not the possession of it is given to him by the owner

In some instances if a man steal even his own goods, as from a pawn broker or other person liable for their safe keeping, with a view to charge that person with the value, this is larceny.

Secondly, the goods must not be taken only, they most be carried away also. But "a bare removal from the place where he found the goods, though the thief does not make quite off with them, is a sufficient carrying away." 4 Blac. Com. 231. If a thief, intending to steal plate, take it out of a chest in which it was, and lay it down upon the floor, but be surprised before he can make his escape with it, this is larceny. I Hawk. p. c. 93.

Thirdly, the goods must not only be taken and carried away, but they must be so taken with the intent to steal them. As when a servant takes his master's horse without permission, but with a sincere intention to bring it back, this and like cases amount not to larceny. A variety of cases might be adduced to exemplify this distinction; but that I presume to be unnecessary, and would be tedious; "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 evince a felonious intent; wherefore they must be left to the due and attentive consideration of the jury."

4 Blac. Com. 232.

Fourthly, the goods must be personal goods, not attached to the freehold, or, as the law expresses, savouring of the reality. Standing trees and other vegetables, fences, gates and even the leads on a house top are said to be attached to the freehold, and therefore, tho to carry them off by stealth is a tresspass which at common law would entitle the party injured to damages in a civil suit, it does not amount to larceny. This defect, for such surely it is, in the common law, is remedied in England very amply by statute; but unfortunately with us it is as yet unprovided for. However, if the trees be cut down or the leads be torn off, and the like, at one time, and after they have lain loose upon the freehold the thief return at another time and carry them off, this is said to be larceny. 4 Blac. Com. 233. Neither is it felony to steal title deeds of land because, as the law says, they descend with the freehold. Nor is it felony at common law to steal bonds, notes or the like, for they are, as the law terms them, choses in action, that is a mere evidence of a right to property not yet vested, and not property itself; a quaint subtlety from which we are happily relieved by our statute which puts written securities on the same footing with other property in this respect. "Robbery or larcenny of bank notes, obligations or bonds, or bills of exchange, promissory notes for the payment of money, or notes for the payment of any specific property, lottery tickets, paper bills of credit, certificates granted by or under the authority of this territory, or of the United States or any of them, shall be punished in the same manner, both as to the principal and accessary, as robbery or

larceny of goods and chattels." 1 Sess. Legg. Couu. chap. 50, sec. .10.

It is felony to steal domestic animals which "serve for food," as oxen, sheep, hogs, poultry, &c. for in these we have a permanent property. But to carry off wild animals, as deer or other game, that happen to be on the land, or fish from a lake or river, if such animals be at their natural liberty, is not larcenny. But after they have been taken or killed, or reclaimed or confined, so that they umy be taken at pleasure, it is larceny to steal them. But it is not larce

ny to steal a dog or other animal which one keeps for whim or amusement. 1 Hale P. C. 512. For in such animals one can have only what the law terms a "base property;" but it is such a property as entitles one to bring a civil action for the loss of them. 2 Blac, Com. 393, & Ibid 235.

Fifthly, the goods stolen must have an owner. But if the owner be unknown, the thiet may be indicted and convicted of stealing the property of "a per on or persons unknown." But there are some things incapable of having an owner, as a human corpse, which is sometimes stolen from the grave for anatomical purposes; this, tho' a great indecency, is not larceny, because the body is not the property of any one. But if any of the grave cloths or ornaments sometimes buried with the corpse, or the like, be taken with it, such articles are considered as the property of those who put them there, and the offence therefore becomes a larceny.

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March 19, 1818, sec. 1, M. D.I, p 387,

"Whosoever shall be guilty of larceny, shall be imprisoned at hard labor or othherwise, net exceeding two years."

MISPRISON OF FELONY,

"If any person having knowledge of the actual commission of the crime of wilful murder, rape arson, robbery, burglary or larceny, shall conceal, and not as soon as may be, disclose and make known the same to some one of the judges, or other persons in civil authority, within this state, on conviction thereof, such person or persons shall be adjudged guilty of misprison of felony, and shall pay a fine not exceeding three hundred dollars, and may also at the discretion of the court, suffer imprisonment at hard labor, or otherwise, not exceeding twelve months. 1st sess. Leg. Coun. Chap. 50 sec. 11.

This is an offence at common law also, but the precision with which the statute has described it, leaves me but little to add. The ancient definition of the crime is "the concealment of a felony which one knows of but never assented to;" for if he assented, this would make him either principal or accessory.

By this section of the statute it also would seem that no other

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COINING COUNTERFEIT MONEY.

crimes than those enumerated, namely, wilful murder, rape, arson, robbery, burglary and larceny, are to be recognized as felonies in This I presume is certain, that the concealment of no other incurs any punishment,

this state.

A wife cannot be convicted of the misprison of a crime committed by her husband, inasmuch as she cannot be an accessory after the fact, the law presuming that she always acts under the coertion of her husband, "and therefore she is not bound, neither ought she discover her lord," 1 Hale P, C, 261.

Misprison of felony is a greater offence in a public officer, than in a private citizen, and is always punished accordingly.

COINING COUNTERFEIT MONEY.

"If any person or persons shall forge or counterfeit, or cause or procure to be forged or counterfeited, or shall willingly aid or assist in the forging or counterfeiting any gold or silver coin, which now is, or hereafter may be passing or in circulation in this state, or shall falsely pay or offer, or tender in payment, any such forged or counterfeited coin, knowing the same to be forged or counterfeited, every person so offending, and being thereof convicted, shall suffer imprisonment at hard labor, not less than seven, nor more than fourteen years." Is sess, Leg, Coun. chap, 50 sec. 14.

The English law, speaking of the forgery of foreign coin, terms them, "such kind of coin of gold or silver as is not the proper coin of this realm, but shall be current in this realm by consent of the crown.' 1 Mar. sec. 2 c. 6. On this it is remarked, that "the money referred to must be such as is absolutely current here, in all payments by the King's proclamation." 4 Blac. Com. 89. The words of our statute are more general than those of the English one: any gold or silver coin which now is or may hereafter be passing or in circulation in this state," and probably therefore were intended to oper: te more extensively than the English law, But unfortunately this is so extremely general as to be in some measure obscure and uncertain. It could not, I presume, have been contemplated that every counter to which speculation and whim might give occasional curreney should be put on the same for ting in this respect with our national coins. Yet by the strict letter of the statute, every coin that may circulate, which in fact is every coin that ever can be brought among us, would enjoy alike the protection of the law; for where is the piece of gold or silver that will not pass at its value wherever its value is known? Perhaps indeed the laws of the United States may help us to some distinction, without which it does not seem easy to fix without some perspicuity the limits of this statute. Within three years after the establishment of the mint of the United States,

"which shall be announced by the proclamation of the president of the United States, all foreign gold coins and all foreign silver coins except Spanish milled dollars, and parts of such dollars, shalt cease to be a legal tender as aforesaid." 2d Co. chap. 5 sec. 2.— And as the time limited has expired, and the coins of the United States and Spanish silver, and no others therefore now have an authorized circulation among us, a question may arise whether the English principle laid down by Blackstone (as above) does not apply to our statute though so vaguely worded. An unwarranted passing or circulation would seem in the contemplation of law equal to no circulation whatsoever; and at all events the law which refuses to acknowledge a coin as one that may be lawfully tendered in payment, greatly dimishes the guilt of those who counterfeit it.❤

The offence at common law is defined to be "the fraudulent making or alteration of a writing to the prejudice of another man's right." 4 Blac. Com. 247. By the statute of this state, the offence is confined to certain kinds of written instruments therein particularly enumerated.

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"If any person or persons shall falsely make, alter, forge or counterfeit, or cause or procure to be falsely made, altered, forged or counterfeited, or willingly aid or assist in the false making, altering, forging or counterfeiting of any letter patent, gift, grant, bond, writing obligatory, bill or order, or acceptance of such bill or order, note of the bank of the United States, or of the bank of any one of the said States, or any bank of any of the territories thereof, cotton receipt, promissory note, will, indenture, deed or contract, with intention to defraud any person, or shall utter, put off or offer, or cause to be uttered, put off or offered in payment, or for sale, any such false, forged, altered, or counterfeited bond, bill, &c. with intention to defraud any person, knowing the same to be false, forged or counterfeited, and shall thereof be convicted, every such person shall suffer imprisonment at hard labor for life." 1st sess. Leg. Coun. chap 50, sec. 15.

*The circumstance of a coin's being a legal tender, would seem to be at least the only moral principle on which the counterfeiting of it is considered more criminal than any other fraud. If it be optional with me to take or refuse at pleasure, a certain coin as the price of my property, there is surely no greater degree of guilt in deceiving me as to the value of that coin, as if I had taken a horse or other article in exchange, and had been in like manner cheated.

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February 22, 1817, sec. 2, M. D. I, p 384.

"Any person or persons, who shall falsely make, alter, forge, or cause to be made, altered or forged, any receipt or instrument of writing acknowledging the payment of any sum of money, or the receipt of any goods, wares or merchandise, or property of any kind whatever, or any acquittance, release or discharge of any debt, action. account, suit, demand, or other things, real or personal, with an intention to defraud any person or persons, body politic or corporation, shall, on conviction thereof, suf