CHAPTER XVII.

OF OFFENCES AGAINST PRIVATE PROPERTY.

THE next and last species of offences against private subjects, are such as more immediately affect their property. Of which there are two, which are attended with a breach of the peace; larceny and malicious mischief: and one, that is equally injurious to the rights of property, but attended with no act of violence, which is the crime of forgery. Of these three in their order.

I. Larceny, or theft, by contraction for lactrociny, lactrocinium, is distinguished by the law into two sorts: the one called simple larceny, or plain theft, unaccompanied with any other atrocious circumstances; and mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person.

And, first, of simple larceny; which, when it is the stealing of goods above the value of twelve-pence, is called grand larceny; when of goods to that value, or under, is petit larceny; offences which are considerably distinguished in their punishment, but not otherwise. I shall, therefore, first consider the nature of simple larceny in general; and then shall observe the different degrees of punishment inflicted on its two several branches.

Simple larceny, then, "is the felonious taking and carrying away of the personal goods of another." This *offence certainly commenced then, [*230] whenever it was, that the bounds of property, or laws of meum and

tuum, were established. How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seized to his present use seems to be the only offence of this kind incident to such a state. But unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen, (a) any violation of that property is subject to be punished by the laws of society: though how far that punishment should extend, is matter of considerable doubt. At present we will examine the nature of theft, or larceny, as laid down in the foregoing definition.

1. It must be a taking. (2) This implies the consent of the owner to be wanting. Therefore, no delivery of the goods from the owner to the offender,

(a) See book II, p. 8, &c.

(1) The punishment for this offense is now provided for by statute 24 and 25 Vic., c. 96. That statute abolishes the distinction between grand and petit larceny, and limits the punishment for the first offense of simple larceny to three years' penal servitude, or two years' imprisonment, with or without hard labor, and with or without solitary confinement.

(2) 1. If the owner, from any cause, voluntarily parts with the property in the goods taken, there is no larceny. To make it larceny, the taking must be against the owner's will. 2 East P. C., 665. Therefore, if the owner, through mistake or fraud or force, parts with the possession and title, i. e., with the property in goods taken, the taking is not larceny. Welsh v. People, 17 Ill., 339. So, where A paid C, servant to B, money which he owed B, on the erroneous supposition that C was empowered by B to take it, held no larceny from A, as he voluntarily parted with the property. R. v. Hawtin, 7 C. & P., 281. Where one obtained a half guinea on the pretense that silver would be sent in exchange, held no larceny, but a false pretense. Coleman's Case, 2 East P. C., 672. Where one, in paying a bill, could not make change, and a bystander took a coin to get it changed, and converted it, held no larceny, because the owner could not have expected the return of the specific coin, and therefore he had divested himself of his property in it when he surrendered possession of it. R. v. Thomas, 9 C. & P., 741. A hatter, by a trick, was induced to send a hat to a man who had no right to it, supposing he was sending it to the owner: held no larceny, as he voluntarily parted absolutely with the property. R. v. Adams, R. & R., 225. One who could not read was induced by a fraudulent representation to give bills to a man for a certain pretended purpose, and took in return worthless metal pieces, sup. posing them to be valuable coin. Held no larceny, as he had parted with his property in

upon trust, can ground a larceny. As if A lends B a horse, and he rides away with him: or, if I send goods by a carrier, and he carries them away: these are no larcenies. (b) But if the carrier opens a bale or pack of goods, or

(b) 1 Hal. P. C. 504.

the bills, which were not to be returned. also, Kellogg v. State, 26 Ohio St., 15.

Kelly v. People, 13 N. Y. Sup. Ct., 509. See,

2. If, with intent to steal them, one gets possession of goods by consent, the title remaining in the owner, he is guilty of larceny. If the owner does not part with the title, expecting and intending that the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way as directed or agreed upon for his benefit," then a bailee may feloniously convert the goods so as to make the conversion larceny, if at the time of the taking possession he had the felonious intent. State v. Gorman, 2 N. & McC., 90; S. C., 10 Am. Dec., 576; Welsh v. People, 17 Ill., 339. If one, by fraud or otherwise, is induced to part with the possession of goods merely, and the taker has a felonious intent when the goods are thus taken, it is larceny. Lewer v. Com., 15 S. & R., 93; Mancino v. People, 19 N. Y. Sup. Ct., 127; Elliott v. Com., 12 Bush, 176; State v. Gorman, 2 Nott & McC., 90. Where one hired a horse for a journey and sold it the same day, and the jury found the hiring was with felonious intent, held larceny. Pear's Case, 2 East P. C., 685. So, where a carriage was hired with like intent, and was not returned. Major Semple's Case, 2 East P. C.. 691. A received some gold from B, on pretense of going up stairs to get some silver for it, which he was to bring B. A ran off with the gold. The jury found that B did not intend to part with the property in the gold till he got the silver, and that A took the gold with felonious intent; held larceny on the ground that B had parted with possession only. State v. Watson, 41 N. H., 533. A jeweler brought some goods to an inn for the defendant to select such as he wished to purchase. Just at that time the defendant received a letter purporting to be from a friend who agreed to furnish funds for the purchase at another place a little later. The jeweler was thus induced to leave his goods at the inn for the intervening time, and went away. The defendant then converted them. The jeweler swore he did not consider the goods sold till he got the cash, and the jury found that the defendant had a felonious intent, in regard to the transaction, from the beginning: held larceny. R. v. Campbell, 1 Moo., 179. See also R. v. Brown, Dears., 616. If one fraudulently induces a servant to part with his master's goods, it may be larceny, since the servant's possession is the master's, and a mere servant has no authority to transfer the property in such goods. Hite v. State, 9 Yerg., 198; R. v. Longstreeth, 1 Moo., 137. In Commonwealth v. Wilde, 5 Gray, 83, the defendant wished to get a pair of trousers on his father's credit. The owner of the shop refused to let them go without a written order. The defendant left the shop, but soon returned, and, while a salesman, ignorant of what had passed, was busy with a customer, folded up the trousers, put them under his coat, and walked off, telling the salesman that he had made it all right with the owner. Held larceny, as there was no actual or intended transfer of the property. In R. v. Robins, Dears., 418, one servant induced another to give him some wheat in charge of their employee on pretense of carting it to a specified place. He made off with it instead. Held, that the second servant did not part with the property in the wheat, but delivered it for a specified purpose, and that the falsehood made no difference, and the conversion was larceny.

8. If, without felonious intent, one gets possession of goods as a bailee; and subsequently converts them with felonious intent, there is, in general, no larceny.

Where a watchmaker received a watch to repair, and afterwards converted it, held no larceny, if this felonious intent was not formed when the watch was received. R. v. Thristle, 2 C. and K., 842. The defendant, a tailor, received goods to be made up. He finished them, and was then induced to sell them instead of returning them to his bailor. Nothing showed an intent to convert them when he took them. Held no larceny. Abrams v. People, 13 N. Y. Sup. Ct., 491. So where one borrowed a horse for a special purpose, and next day took the horse away, and sold it, held no larceny, if the intent to convert was formed after the taking. R. v. Banks, R. and R., 441. So when after borrowing horses to go to a certain place, the borrower drove on instead of returning. State v. Stone, 68 Mo., 101. See Wright v. Lindsay, 20 Ala., 428. Although, while the relation of bailor and bailee exists, the latter is entitled to possession, so that he does not commit the trespass necessary in larceny in taking the goods entrusted to him, yet, if the relation is ended, his taking such goods with felonious intent may be larceny. Thus, if a bailee takes goods to their destination and then converts them, he may be guilty of larceny, for the delivery has taken effect, and the point of bailment is determined. 2 East. P. C., 696. Where several separate articles of a parcel make but one bailment, a tortious act, in reference to some of the articles, determines the bailment, and a subsequent fraudulent conversion of the remainder is larceny. R. v. Poyser, 5 Cox. 241. A miller had some barilla given him to grind, which he returned adulterated. Held that his act in separating a part, from the rest of the barilla, for his own use, while the general property remained in the owner, determined the contract,

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; (c) for here the animus furandi is manifest; since in the first case he had other

(c) 8 Inst. 107.

and his taking was larceny, on the principle that if goods, originally delivered on a special contract, which is determined by fraudulent act of the party, or by the completion of the contract, are, subsequent to such determination, taken with felonious intent, it is larceny. Com. v. James, 1 Pick., 375. If a bailee tortiously breaks a package entrusted to him, and takes goods from it animo furandi, this breaking terminates the bailment, and he may be guilty of larceny. R. v. Madox, R. and R., 92. A bailee of wheat in bags emptied all the wheat out of several of the bags. Held that taking all the wheat out of each bag was as much breaking bulk as taking part out of each, and he was convicted. R. v. Brazier, R. and R., 337. See as establishing the rule that it is enough to take one of several articles bailed without breaking any package. Nichols v. People, 17 N. Y., 114; Com. v. Brown, 4 Mass., 580.

4. If without felonious intent one gets possession of goods as a mere custodian, or under a bare charge, and subsequently converts them with felonious intent, he is guilty of larceny. The distinction is between custody and possession. A servant who receives from his master goods or money to use for a specific purpose, has the custody of them, but the possession remains in the master. So where a servant, sent by a member of a firm with money to another member of the same firm, converted the money, it was larceny. Com. v. Berry, 99 Mass., 428. See Com. v. Davis, 104 Mass., 548. If a servant who has charge of his master's horses steals them, it is larceny. People v. Wood, 2 Park. Cr. R., 22; People v. Belden, 37 Cal., 51. So, if a clerk in charge of a store takes from the stock of goods. Marcus v. State, 26 Ind., 101; Walker v. Com., 8 Leigh, 743. In these cases the felonious intention may be formed after the goods have come under the charge of the custodian, and the conversion will then be larceny. R. v. Jones, C. and M., 611; R. v. Beaman, C. and M., 595; R. v. Goode, C. and M., 582.

A servant was given goods by his master to take with the master's team to a specified place. He was to sell the goods and bring back the proceeds. He converted the team. Held larceny even if felonious intent was formed after starting, as he had but a bare charge, the possession remaining in the master. State v Schingen, 20 Wis., 74. So where a servant has been given a check to be delivered at a specified place, and he has converted it, it is larceny. R. v. Paradice, 2 East P. C., 565; R. v. Heath, 2 Moo., 33. And see R. v. Chipthase, 2 East P. C., 567. In Bass's Case, 2 East P C., 566, a servant was held guilty of larceny who sold goods given him to carry to a customer, as the master still had possession of them. So it was larceny where a servant put certain bags belonging to his employer with new ones which the employer was to buy, thus hoping to cheat the employer, since the servant had but the custody of the old bags. R. v. Manning, Dears., 21. The defendant stood near the paying place in a crowded railway station. A lady gave him some money to buy a ticket. He offered to buy it, but ran away. It was larceny, as he had but the custody of the money. R. v. Thompson, Leigh and C., 225. The holder of a note handed it to the maker to indorse a payment on it. The latter refused to give it back. Held that the maker had but the custody of the note, not the possession in law, and that the felonious intent, even if formed after the taking, was enough to make the taking larceny. People v. Call, 1 Denio, 120. A was induced by a pretended deposit of funds as security to draw a check in favor of B. A went with B to get the check cashed, and directed how it should be done, but the cash was paid B. The jury found that A did not intend to part with the property in the check till he was paid the funds deposited. B ran off with the money, and the supposed deposit did not exist. Held larceny, as B had_but the custody of the cash and A the possession. R. v. Johnson, 5 Cox, 372; S. C., 2 Den. C. C., 310; 14 E. L. and Eq., 570. A sent his watch to London to be regulated. B induced the watchmaker to send it to A in care of the postmaster at C. B then, by personating A, got the watch from the postmaster. Held that by sending the watch to the postmaster, the watchmaker was divested of his special property in it; that the postmaster held it under a bare charge to deliver to the true owner, to that extent as servant of A, and that the crime was larceny. R. v. Kay,7 Cox, 289. That a servant's consent does not pass property, see Longstreeth's Case and Hite v. State cited supra. In R. v. Watts, 2 Eng. L. and Eq., 558. a clerk in an insurance company, who was also a shareholder in the company, was employed by the directors to keep returned checks, among other duties. He stole such a check. Held that when the check came to him it was in possession of the directors, having reached its ultimate destination; that as shareholder he had no property in the check, and that having custody merely, he was guilty of larceny. In a case where a servant was sent to haul a certain amount of coal to his master's house, the coal was loaded into the master's wagon, and then converted by the servant. Held that as the wagon was in the possession of the master and in the charge of the servant, the coal was likewise in the mas ter's possession, and the conversion was larceny. R. v. Reed, Dears., 257. A broker whe

wise 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 masters' goods, may by writ out of chancery (issued by *the advice of the chief justices and chief [*231] 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 masters' 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, if any servant embezzles his masters' goods to the value of forty shillings, it is made

had no funds in the bank was given by a bank a certified check with which to buy silver. He used the check for his own purposes. Held that he had the mere custody of the check, and the taking was larceny. People v. Abbott, 53 Cal., 284. But where one received check to buy exchequer bills with, cashed it, and ran off with part of the proceeds; held no larceny, as the giving of the check was not induced by fraud, and the prosecutor never had possession of the money at the bankers. R. v. Walsh, R. and R., 215. Where money was paid to a bank clerk who, without putting it in a drawer, where it should have gone, kept it, held no larceny, as master never had possession of it except through the clerk; otherwise had he put in the drawer before taking it. Bazely's Case, 2 East P. C., 571. A servant entrusted with a check to be cashed for the payment of a bill, cashed it and ran off. Held no larceny, as the master had no possession of the money. Com. v. King, 9 Cush., 284. So where a servant given a bill to change, ran away with the change. Held embezzlement. R. v. Sullens, 1 Moo., 129.

Lost goods. The old doctrine seems to be that there could be no larceny of lost goods, because the clement of trespass necessary to make the crime was lacking. 1 Hawk. P. C., ch. 33, § 2, 3; Porter v. State, Mart. & Yerg., 226; People v. Anderson, 14 Johns., 294, S. C., 7 Am. Dec., 462. The present doctrine is thus stated: "The finder of lost goods may lawfully take them into his possession, and if he does so without any felonious intent at that time, a subsequent conversion to his own use, by whatever intent that conversion is accompanied, will not constitute larceny. But if, at the time of first taking them into his possession, he has a felonious intent to appropriate them to his own use, and to deprive the owner of them, and then knows or has the reasonable means of knowing or ascertaining by marks on the goods or otherwise, who the owner is, he may be found guilty of larceny." Commonwealth v. Titus, 116 Mass., 42. Substantially the same is held in Wolfington v. State, 53 Ind., 343; State v. Conway, 18 Mo, 321; Tanner v. Commonwealth, 14 Gratt., 635; Ransom v. State, 22 Conn., 153; Tyler v. People, Breese, 227; S. C., 12 Am. Dec., 176; State v. Dean, 49 Iowa, 73. And see People v. Cogdell, 1 Hill, 94. In Griggs v. State, 58 Ala., 425, it was held by a divided court that the subsequent conversion of lost goods, taken innocently, may make the finder guilty of larceny. The modern English doctrine, as laid down in R. v. Thurborn, 2 C. & K., 831, is: "If a man finds goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them with intent to take entire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny. But if he has taken them with like intent, though lost or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny." See also R. v. Dixon, Dears. 580; Preston's Case, 2 Den. C. C., 353; Christopher's Case, Bell, 271; S. C., 8 Cox, 91. If goods have been abandoned by the owner, not lost merely, the finder commits no larceny in taking them. R. v. Reed, C. & M., 306; McGoon v. Ankeny, 11 Ill., 558. There is a distinction between taking lost goods and those put in a particular place by the owner and forgotten. Thus, in paying a barber, a man laid his purse on a table in the shop and went off without it. Soon after, he came back for it and failed to find it. It appeared that the barber took it; held larceny, as being not lost, but in the owner's constructive possession. Lawrence v. State, 1 Humph., 228. In R. v. West, Dears. 402, a person left his purse at a market stall and afterwards came to look for it. Meanwhile, the stall-keeper had taken it. Held larceny, and the court said that there was a clear distinction between property lost and mislaid, put down, left by mistake, under circumstances enabling the owner to know where he left it. See People v. McGarren, 17 Wend., 460. In a Connecticut case a lady using a washtub lost in it a ring, soon noticed her loss and looked in the tub, but could not find it. Meantime her servant, who had used the tub, had taken it. Held larceny, as, under the circumstances, there was no loss except for the defendant's act. State v. Cummings, 33 Conn., 260. A man dropped a note in a shop, and coming back failed to find it. The jury found that, when the shopman picked up the note, he did not know, and had not reasonable means of knowing, the

felony; except in apprentices, and servants under eighteen years old. (3) But if he had not the possession, but only the care and oversight of the goods, as the butler of the plate, the shepherd of the sheep, and the like, the embezzling of them is felony at common law. (d) 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 Aim, but merely the use, (e) and so it is declared to be by statute 3 and 4 W. and 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 an intent to charge the hundred with the loss, according to the statute of Winchester. (f)

2. There must not only be a taking, but a carrying away; (4) cepit et aspor

(d) 1 Hal. P. C. 506.

(e) 1 Hawk. P. C. 90.

(f) Fost. 123, 124.

owner of it, but afterwards acquired knowledge and converted it; that when he picked it up he believed the owner could be found, but intended then to convert the note; held larceny, as not a lost note. R. v. Moore, L. & C, 1.

Stealing one's own goods. A man may be guilty of larceny in stealing his own goods from his bailee, who has a right to possession or interest in possession, and who is injured by losing possession. R. v. Wilkinson, R. & R., 470; People v. Thompson, 34 Cal., 671; Palmer v. People, 10 Wend., 165; and see State v. DeWitt, 32 Mo., 571. A member of a society stole some of the society's property from the society's bailee; held larceny in the part owner, since the bailee was answerable. R. v. Bramley, R. & R., 478; R. v. Burgess, L. & C., 299. So, if one part owner steals from another, the latter being responsible for the safety of the goods. R. v. Webster, L. & C., 77. In R. v. Cain, 2 Moo., 204, a trustee of a society was held guilty of larceny of society funds from the society treasurer. In Kirksey v. Fike, 29 Ala., 206, held that a joint owner or tenant in common cannot be guilty of larceny of the property jointly owned, unless he take it from a bailee who is thereby made answerable.

(3) This subject is also covered by statute 24 and 25 Vic., c. 96, which imposes the pun. ishment of penal servitude for not more than fourteen and not less than three years, or imprisonment not more than two years.

(4) A very slight removal of an article from its place has been held to constitute carrying away. A parcel lying in a wagon was carried from one end of the wagon to the other, but was not taken from it; held a sufficient carrying away. R. v. Cozlett, 2 East P. C., 556. But where a package in a wagon was set on end and the wrapper cut open without removing any of the contents, it was held no asportation. R. v. Cherry, 2 East P. C., 557. Turning on its side a barrel which was standing on end was held not enough, in State v. Jones, 65 N. C., 395. Where a purse tied to keys was drawn from a pocket, but the keys remained in the pocket, there was no asportation. R. v. Wilkinson, 2 East P. Č., 556. So, where goods in a shop were tied to the counter and a thief carried them as far as the cord would permit. Anon. 2 East P. C., 556. A thief snatched an earring from a lady's ear, but it fell in her hair. As it was for an instant in his possession, held a sufficient carrying away. R. v. Lapier, 2 East P. C., 557. A bag in a stage boot was lifted off the bottom of the boot, but it was not drawn entirely out of it; held sufficient. R. v. Walsh, 1 Moo., 14. So, where a pocket-book in an inside coat pocket was drawn completely out of the pocket, but so little that, on the prisoner's dropping it, it fell back into the pocket. R. v. Thompson, 1 Moo.. 78. See Com. v. Luckis, 99 Mass., 431. A watch was snatched from the owner's pocket and the chain was drawn clear through the button hole, but the key at end of the chain then caught on a button and the thief was seized; held sufficient asportation, as in the thief's control for an instant. R. v. Simpson, Dears. 421. A person called on defendant to pay a note, the latter asked to see it; on its being handed him, he concealed or destroyed it; held sufficient. State v. Fenn, 41 Conn., 590; People v. Call, 1 Denio, 120. A person stole keys from another's pocket, opened a safe, took a money drawer completely out and was handling the money when caught; held sufficient carrying away of the money, State v. Green, 81 N. C., 560. A man put in a pipe connecting the gas-main and the delivery pipe in his house, cutting of the flow through the gas meter; held that by necessary physical action there was such & severance of the gas in the main as to constitute asportation. R. v. White, Dears. 203 Com. v. Shaw, 4 Ållen, 308. To constitute larceny of an animal, it must be removed while alive: R. v. Williams, 1 Moo., 107; but a very slight change of position is enough. State v. Carr, 13 Vt., 571. See State v. Alexander, 74 N. C., 232, and State v. Wisdom, 8 Port (Ala.), 511. An indictment charging larceny of a turkey and pea hen in Massachusetts is not supported by evidence of taking them alive in Connecticut and bringing them dead into