1. Respublica v. Jesse Cleaver et al., 1804, 4 Yeates, 69.-Quære. "Whether stealing one promissory note is not within the act of Assembly of 5 April, 1799, section 5?

2. "It is discretionary with the court, whether they will quash any indictment, but they will not do it, unless in a clear case.

3. "They will not quash an indictment for larceny, in stealing one promissory note."

Commonwealth v. Texter, 1811, 2 Browne's R., 247.-" On an indictment for larceny, after the deputy attorney-general had closed the evidence, and the defendant's counsel had summed up, the court allowed further evidence to be given on behalf of the Commonwealth."

Spangler v. Commonwealth, 1811, 3 Binney, 535.-"An indictment for stealing bank notes generally, under the description of promissory notes for the payment of money, is bad. It should appear on the face of the indictment that they are bank notes of some incorporated bank, or in some way that they are lawful notes; no unincorporated bank notes in Pennsylvania being at present the subject of larceny."

ED. NOTE.-The statute upon which above case decided repealed. See McLaughlin v. Commonwealth, 4 Rawle, 464.

Simmons v. Commonwealth, 5 Binney, 617.-"A person who steals goods in another State, and brings them with him into this State, cannot be indicted here for the felony. He is to be treated as a fugitive from justice."

Lewer v. Commonwealth, 1827, 15 Sergt. & Rawle, 96.-What constitutes constructive larceny?

Error to the Mayor's Court of the City of Philadelphia, 1827.

TILGHMAN, C. J.—"(After stating the special verdict and judgment of the court below.) It is of the essence of larceny that the taking be invito domino, without the will of the owner: Fost., 123 ; 4 Bl. Com., 230; 2 East, C. L., 665. The ancient known definition of larceny, says Foster, is fraudulenta rei alienæ invito domino: Fost., 124. The question is, then, whether the defendant took and carried away the goods of the prosecutors against their will. To a person unacquainted with legal subtleties, it would seem strange to make it a question whether, after a sale and delivery of goods, and a receipt given for the price of them, the vendee could be said to take them away against the will of the vendor? The argument on behalf of the prosecution is, that the consent of the vendors was fraudulently obtained, and, therefore, in law, was not consent; and the defendant, having from the beginning an intent to get possession of, and carry away the property without paying for it, was guilty of larceny. The consequence of this principle has such an important bearing on society, that it must be well considered before it is adopted. The cases in favor of it in the English Courts, if any such there be, are since the American Revolution (4th July, 1776), and, therefore, no authority here. But although our legislature has forbid the citing of such cases in our courts, yet it was never so unwise or so illiberal, as to wish to restrain the judges from deriving useful information from the opinions of learned foreigners of all nations. I have, therefore, had the curiosity to run through the English decisions on questions similar to that before us, and it really appears to me that their judges have so entangled themselves in the nicety and minuteness of their distinctions, that their best elementary writers are unable to reconcile

the adjudged cases; and this must ever happen, when courts of justice endeavor to provide remedies which should be left to the legislature. This error has often been fallen into by men of the first talent and strictest integrity. Indignation is naturally excited by acts of flagrant villany, and a judge thinks himself justified in taking one step beyond the line to come at the offender. But this step is not easily retraced; the case is urged on him as a precedent, and a new principle, once established, leads to so many unforeseen consequences, that at length the courts endeavor to escape from them by distinctions too nice for comprehension; and thus the law becomes confused and uncertain-an evil always to be deprecated, but particularly in criminal cases. So much for the progress of the English law, since our Revolution. But there are adjudications, prior to that period, which are authority, and by which, unless manifestly wrong, we have always held ourselves bound.

"It was a principle of the common law in the earliest times, that its provisions were not to be evaded by fraud and artifice. A memorable example of this was given in a case in the 13 Edw. IV., mentioned by Kelyng in his Reports of Pleas of the Crown, 81, 82. One bargained with another to carry some packs of goods to Southampton, and delivered the goods to him. The carrier took them to another place, and there opened the packs, and took the goods and disposed of them to his own use. The case being one of difficulty, was referred by the King and council to all the judges in the Exchequer Chamber, who resolved it to be a felony. The reason of this decision was, says Kelyng, because the carriers' subsequent act of carrying the goods to another place, and then opening them and disposing of them to his own use, 'declareth the intent originally was, not to take the goods upon the agreement and contract of the party, but only with a design of stealing them.' This case has been often cited, and always held for law. And it has been said that if the carrier had not broken the packages, but disposed of them entire of his own use, it would not have been felony. The reason of this distinction is very refined, but shows the anxiety of the judges that a breach of trust should not be construed into a felony. They would suffer nothing short of an opening of the packages to be sufficient evidences of such a fraudulent original intention, as would constitute a felony. And it has never been denied, that if the original intention of the carrier had been to take the goods upon the trust intended by the owner, and he had afterwards changed his mind, and converted them to his own use, it would have been but a breach of trust, and no felony. Kelyng mentions also another case of an unsuccessful fraudulent attempt to evade the law in a capital case. Some persons, under pretence of robbery, raised a hue and cry, and called a constable to search a house in the night time, and the constable coming, the owner of the house opened the door, and then, those persons bound the constable, and those in the house, and robbed them. This was burglary, because they procured the door to be opened to them in the night by fraud. There are other ancient authorities, establishing the principle, that if the owner of goods parts with the possession for a particular purpose, and the person who receives possession, avowedly for the purpose, has a fraudulent intention to make use of the possession as the means of converting the goods to his own use, and does so convert them, it is felony.

"Such was Chissers's case, reported in T. Raymond, 275; 2 East, C. L., 275. Chissers asked the price of some cravats in a shop; the owner told him the price was seven shillings, and handed them to him to look at; Chissers took the cravats,

offered three shillings, and then ran away with them; this was felony. Tunnard's case was determined in 1722, and cited from a MS. note: 2 East, 687. Tunnard borrowed a mare from Smith to ride three miles, but instead of three miles he rode from the Isle of Ely to London, and there sold her. Lord Raymond left it to the jury to decide whether Tunnard took possession of the mare with the original intent to ride her only three miles, and then return her, or to steal her. The jury were of opinion that the intent was to steal, and it was held to be felony. Now, in all these cases, and others which it is unnecessary to mention, the owner of the goods had no intent to part with the property, but only the possession for a particular purpose; so that when the felon pretended to receive them for the same purpose, harbored the secret design of stealing them, it has not been thought straining the law too far, to say that a possession thus fraudulently obtained was void, and the legal possession remained in the owner.

"But when the owner intended to part with the property, the case is different. For although fraudulent means may have been used to induce him to part with it, yet he delivered the possession absolutely, and the purchaser received the possession for the express purpose of doing with the goods what he pleased. The owner was not deceived by the manner in which possession was taken. It was his intent that the possession should never return to him. Therefore it was a case of cheat, and not of felony. I find it laid down by East, a writer on criminal law of respectable character, 'that if the owner parts with the property, by whatever fraudulent means he was induced to give credit, it is felony.' I have seen no judicial decision, which is authority in this court, carrying the doctrine of what may be called constructive larceny, beyond the case where possession only was intended to be delivered.

“And I am for stopping there, because we have a line distinctly marked, which is of great importance in criminal law. If it be said that it is equally criminal to prevail on the owner to part with the property by fraud and falsehood, I answer, that granting it to be so, it is not for the court to furnish actions according to the degree of immorality. That is the province of the legislature. There is an insuperable objection to the extension of the law by courts of justice. What they decide must be taken to have been law before their decision; so that a man may be, in effect, punished by an ex post facto law. Whereas the legislature takes care, when it creates an offence, to confine it to subsequent actions. I confess my own opinion is, that the law of felony has been pushed quite far enough, by the adjudged cases on possession fraudulently obtained. I am alarmed at the consequences of the principles now contended for. The argument is, that a fraudulent contract is void; therefore the property never passed from the owner; and as the property draws to itself the legal possession, the possession never passed from him, in contemplation of law. Let us see to what this may lead. A man, in contemplation of insolvency, purchases goods with an intention never to pay for them. Here is a fraud; is it therefore to be a larceny? Or suppose a man purchases goods, and makes payment in a bill of exchange which he knows will not be honored-that, too, is a fraud. Is it larceny? Again, a man purchases goods, and pays for them, and, on examination, finds them to be damaged, he offers to return them, and rescind the contract, on the principle of the seller's having known them to be damaged when they were sold. Perhaps he may be able to make this out to the satisfaction of a jury, and thus avoid the contract. Is it to be said, in that case, that the seller had an original intent to defraud the buyer

of his money, and was therefore guilty of larceny? No, will be the immediate answer of the counsel for the Commonwealth, and there is no danger of any man's being improperly convicted of felony, because the jury are to decide whether the intention was felonious. But juries have sometimes their passions and their prejudices. There are times when the public mind is strongly excited, and juries are hurried away by the common feeling. A man is thrown into a tremendous uncertainty, who has nothing to trust to, but the opinion which a jury may form of his secret intention; a matter, of which, after all, they can have no positive or certain knowledge. All cheating is immoral, but its degrees of guilt are different. Let the legislature, if it thinks proper, declare the offence and prescribe the punishment.

"Now to come to a conclusion: the defendant in this case deceived the prosecutors most shamefully. But he did obtain their consent to an absolute sale, and the possession was delivered accordingly. There was no condition in the case. When Davis and Oakford were imprudent enough to receive the defendant's check, they knew that it was not money. But such as it was, they accepted it in payment, and went so far as to give cash for the amount by which it exceeded the price of the goods. I say not, whether the property passed legally to the defendant, or not; but it is beyond doubt, that Davis and Oakford intended to pass the property when they delivered the possession, and, therefore, it was not a case of larceny.

"I am of opinion that the judgment of the Mayor's Court should be reversed, and judgment entered for the plaintiff in error.

"Judgment reversed."

Commonwealth v. Pine, 1843, 2 Clark, 154.-The indictment charged larceny of "twelve bushels of corn in the ear," and the verdict was, guilty. Motion in arrest of judgment was made on the ground that "corn" is a generic word, meaning all kinds of grain. Held, The description was sufficient to warrant the verdict.

1. Commonwealth v. Smith, 1843, 1 Clark, 400.-Possession of property obtained with felonious intent is larceny, and the offence is complete as soon as the property is received.

2. The place of obtaining the property determines the jurisdiction.

1. Warner v. Commonwealth, 1845, 1 Barr, 155.—All penal laws must be construed strictly; it is, therefore, the opinion of the Supreme Court that county orders are not bills of exchange, and do not come within the 5th section of the Act of April 5, 1790.

2. Stealing of choses in action not being a felony at common law, this indictment should have concluded contra formam statuti, and in default of such averment judgment cannot be given against the defendant.

Commonwealth v. Martin, 1853, 5 Clark, 245.—The Act of 11 April, 1848, vested the property of a married woman in herself. Held, That in a prosecution for the larceny of the property of the wife, it must be so laid in the indictment.

1. Commonwealth v. Mulholland, 1867, 6 Phila., 280.-An indictment cannot be tried in Pennsylvania for larceny committed in another State although the stolen goods were brought here.

2. The practice is to hold the defendant for a period sufficient to allow a demand for his extradition.

Hazlett v. Commonwealth, 1854, 1 Pittsburgh R., 167.-Defendant appeared and plead, but the record failed to show his further presence. Held, "He is presumed to continue in court during the further proceedings in the cause."

See Dunn v. Comm., 6 Barr, 384; Jacobs v. Comm., 5 S. & R., 314; Prine v. Comm., 6 Harris, 103; Jewel v. Comm., 10 Id., 94; Holmes v. Comm., 1 Casey, 221; Taylor v. Comm., 8 Wright, 131; Comm. v. Drum, 8 P. F. Smith, 9.

Commonwealth v. Frank Byerly, 1868, 2 Brewster's R., 568.-"One due bill" is not a sufficient description in an indictment for larceny.

Demurrer sustained.

Commonwealth v. Patrick Tobin, 2 Brewster's R., 570.-An indictment cannot be sustained which charges the larceny of a person's own goods from his bailee. Commonwealth v. Robert Henry, 2 Brewster's R., 567.-" An indictment should be reasonably certain in the description of the property alleged to have been stolen, for otherwise the defendant has no notice of the nature and character of the offence whereof he stands accused. 'One promissory note' may mean the note of a bank, or other corporation, or of an individual. How can the defendant know what note or whose note is referred to? It may indeed have belonged to him."

Demurrer sustained.

Commonwealth v. Lewis Logan, alias Bones, 1869, 3 Brewster's R., 341.—If the jury find the article stolen has value, it is "immaterial that the Commonwealth [has] failed to give direct evidence upon the point." Its value may be inferred. Commonwealth v. Moorby, 1871, 8 Phila. R., 615.-Variance in description of stolen articles not available in arrest of judgment.

Commonweatlh v. Frantz, 1871, 8 Phila. R., 612.-Refusal to deliver a watch loaned by the owner is not larceny by bailee.

Commonwealth v. Perry, 1871, 8 Phila. R., 616.-Pawning a ring which had been loaned by owner is not larceny at common law.

Commonwealth v. Peiffer, 9 Phila. Reports, 593.-A defendant may be separately convicted of larceny, and of entering a dwelling with intent to steal.

Commonwealth v. Maher, 1876, 11 Phila. R., 425.-A person to whom a mare was delivered to sell may be indicted for larceny as a bailee under the 108th section of the Act of 1860.

Commonwealth v. Frank Peterson and Robert Anderson, 1877, 4 Weekly Notes, 87.-Private counsel not permitted to usurp the duty of district attorney, who alone shall prosecute, save by consent of court.

Commonwealth v. Murray and Hogg, 13 Phila. R., 454.—“ When a defendant in a criminal case testifies in his own behalf, and states in his examination in chief that he has never been charged with any crime, and on cross-examination, says, that he has never been charged with a particular larceny, not the one on trial. Held, That the Commonwealth might rebut such testimony by showing that he had been charged with such larceny."

1. Commonwealth v. George Woodward, 1880, 1 Legal Record R., 345.-"The fact that a defendant, soon after the commission of an offence in one county, was sentenced to imprisonment in another county for a term covering the period of the statute of limitations of such actions, will not suspend the running of the statute.

2. "The Commonwealth could have 'brought or exhibited' an indictment