in this State of a person against his will, or the selling of a person as a slave against his will, also fall within the statutory definition of kidnapping. There is also another statute against persons who offend against the laws by selling the services of kidnapped blacks. The following are the statute laws of our State above referred to: Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any other, with intent either, 1st. To cause such other person to be secretly confined or imprisoned in this State against his will; or, 2d. To cause such other person to be sent out of this State against his will; or, 3d. To cause such person to be sold as a slave or in any way held to service against his will, shall, upon conviction, be punished by imprisonment in a State prison.1 The offences above prohibited may be tried either in the county in which the same was committed or in any county through which the person so kidnapped or confined shall have been taken while under such confinement.2 Procuring the intoxication of a sailor with the design of getting him on shipboard without his consent, and taking him on board in that condition, is kidnapping under the statute, and is so equally whether the defendant did the acts or any of them in person, or caused them to be done. And when the intent and expectation is that the seaman will be carried out of this State, the offence is complete, though the ship be not in fact destined to leave the State.3 Upon the trial of this offence, the consent of the person so kidnapped or confined, thereto, is not a defence unless it appear satisfactorily to the jury that such consent was not extorted by threats or by duress.4 Every person who shall sell or in any manner transfer for any term the services or labor of any black, mulatto or other person of color who shall have been forcibly taken, inveigled or kidnapped from this State to any other State, place or country, is guilty of a felony.5 1 2 R. S., 664, § 30; Laws 1827, p. 348; Laws 1817, p. 143, § 29. " Id.; Laws of 1827, p. 348, § 1. 'Hadden v. Pec., 25 N. Y., 373. This offence may be tried in any county in which the person of color so sold or whose services shall have been so transferred shall have been taken, kidnapped or inveigled, or through which he shall have been carried or brought.1 The last section of the statute does not apply to the sale or transfer made in another State of a black inveigled in this State. If it did it would be repugnant to the provision of the constitution of the United States.2 The kidnapping a person of color is equally an offence whether he is a slave or not.3 XXVII. LARCENY. Different authors and judges have given definitions of the common law offence of larceny; thus, in EAST's Pleas of the Crown, larceny, at the common law, was defined to be the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner.4 And in a case reserved for the consideration of the twelve judges, the learned judge who delivered their opinion, said the true meaning of larceny is, the felonious taking the property.of another without his consent, and against his will, with intent to convert it to the use of the taker.5 In a more recent English case, PARKE, B., said the definitions of larceny are none of them complete. Mr. EAST's is the most so, but that wants some little explanation. His definition is defective in not stating what the definition of "felonious” in that definition is. It may be explained to mean that there is no color of right or excuse for the act, and the intent must be to deprive the owner, not temporarily, but permanently, of his property. The commissioners of the code, in their draft of a penal code, submitted to the Legislature of this State, in a note to their definition of larceny, say that four of the crimes affecting property, require to be somewhat carefully distinguished: robbery, larceny, extortion and embezzlement. The leading distinctions between these, in the view taken by the commissioners, may be briefly stated, thus: All four include the criminal acquisition of the property of another. In robbery, this is accomplished by means of force or fear, and by overcoming or disregarding the will of the rightful possessor. There is a taking of property from another against his consent. The physical power to resist being overcome by force, or what is equivalent in law, the moral power to refuse being prostrated by fear. In larceny, there is still a taking, but it is accomplished by fraud or stealth; the property is taken not against the consent of the owner, but without it. In extortion, there is again a taking; now it is with the consent of the party injured; but this is a consent induced by threats, or under color of some official right. In embezzlement, there is no taking in the technical sense; that is, no taking from the possession of another; the offender being in possession of the property, in virtue of some trust, which the law deems worthy of special sanction, applies it by fraud or stealth to his own use; thus, extortion partakes in an inferior degree of the nature of robbery, and embezzlement shares that of larceny. ROSCOE, in his criminal evidence (6th ed., page 567), says: It may be remarked that everything in larceny, and the kindred offences of embezzlement and false pretences, depends on a clear appreciation of the difference between possession and property. Possession, in the sense in which it is used in the English law, extends not only to those things of which we have manual prehension, but those which are in our house, on our land, or in the possession of those under our control, as our children, servants, etc.1 Property is the right to the possession, coupled with an ability to exercise that right. Bearing this in mind, we may safely define larceny, as follows: The wrongful taking possession of the goods of another, with the intent to deprive the owner of his property. in them. It is not necessary to add to this definition the words "without any claim of right by the taker," as that is excluded by the latter branch of the definition relating to the intent. Nor is it necessary to say that the taking must be "against the will of the owner," because that is included in the word "wrongful." 1 R. v. Wright, Dear. & B. C. C., 431; R. v. Reid, Dear. C. C., 257. And it is believed that, bearing in mind the latter definition, as given by Mr. ROSCOE, and distinguishing between the right of property in chattels by the owner, and the mere possession of them by another, the subtelties of the law, as applied to actual cases of larceny, will be the more readily comprehended, particularly in that class of cases which determine whether there has been a constructive taking of the goods alleged to have been stolen. How Divided.-BLACKSTONE divides larceny into simple larceny or plain theft, unaccompanied with any atrocious circumstance, and mixed or compound larceny, which includes in it the aggravation of a taking from one's house or person.1 Larceny is also divided by statute into grand and petit larceny. Grand larceny being where the value of the property stolen exceeds in value twenty-five dollars, or where, though less than twenty-five dollars in value, it is stolen from the person of another; petit larceny is where the property stolen is of the value of less than twenty-five dollars and is not stolen from the person of another.2 The general characteristics of the grades of grand and petit larceny, other than as above stated and except in the manner of their punishment, are the same. 1. Subjects of Larceny. (a) Of Things Appertaining to the Freehold.—At the common law the felonious taking and carrying away must be of the personal goods of another; for if they were things real or savor of the reality, larceny at the common law could not be committed of them. Land tenements and hereditaments (either corporeal or incorporeal, could not in their nature be taken and carried away; and of things likewise that adhere to the freehold, as corn, grass, trees, and the like, or lead upon a house, no larceny could be committed at the common law; but the severance of them was merely a trespass which depended on a subtlety in the legal notions of our ancestors.3 It was, however, held at common law that things though they savor of the reality, might become the subjects of larceny by 4 Black. Com., 229. 2 R. S., 679, § 65; Id., 690, § 1, Laws 1862, ch. 374, § 2. being severed from the freehold; thus, if stones be dug out of a quarry, wood be cut, or fruit be gathered, larceny might be committed of them.1 But it is provided by our statute that if any person shall sever from the soil of another any produce growing thereon of the value of more than twenty-five dollars, or shall sever from any building, or from any gate, fence, or other railing, or inclosure, any part thereof, or any material of which it is formed, of the like value, and shall take and convert the same to his own use, with intent to steal the same, he shall be deemed guilty of larceny in the same manner and of the same degree as if the articles so taken had been severed at some previous and different time. Severing and taking away by one act growing crops to an amount less. than twenty-five dollars in value is not a criminal offence under the above statute.3 Under an English statute, for stealing things fixed to a building, a cart-shed in a field made of boards, with a door which locked, but the roof was not yet thatched, was held to be a building within the meaning of the act.4 (b) Larceny of Written Instruments.-Larceny could not at the common law be committed of written instruments, whether they related to real estate or concerned mere choses in action. If they related to real estate the taking of them was considered as merely a trespass and no felony, upon a principle allied to those already mentioned, namely, that they concern the land, or, (in technical language) savor of the realty, are considered as part of it by the law and descend to the heir; and when they concerned mere choses in action, as bonds, bills and notes, they were considered at common law not to be goods whereof larceny could be committed, as being of no intrinsic value and not imparting any property in the possession of the person from whom they were taken.5 Our statutes, however, enact that whoever shall be convicted of having stolen and carried away any record, paper or proceed 1 1 Hale, 510; 3 Inst., 109. 22 R. S., 680, § 70. 4 Comfort v. Fulton, 13 Abb. Pr. R. 276. See Malicious Trespass, post. 2 Russ. on Cr., 70; 1 Hale, 510; 3 Inst., 109; 4 Black. Com., 234; 1 Hawk. P. C., ch. 32, § 35; 2 East. P. C., 596-597. C. P.-40. |