(420) Larceny in an American ship at the Bahama Islands. Receiving, &c. (421) Second count. (422) Larceny. Form in use in New York. (423) Same in Pennsylvania. (424) Second count. Receiving stolen goods. Breaking, &c., in night, office, ship, and not adjacent dwelling-house with intent, &c., § 1706. Entering same without breaking, in night-time, or breaking, &c., in day, § 1707. Same as to any dwelling-house, &c., or office, shop, ship, &c., with intent, &c., § 1708. Stealing in day-time in dwelling-house, &c., or breaking and entering in night any meeting-house, &c., and stealing therein, § 1709. Stealing in any building on fire, § 1710. Stealing from the person, § 1711. Stealing notes, bills, deeds, receipts, &c., § 1712. Jurisdiction, &c., § 1713. Second conviction, § 1714. Breaking and entering in night-time, § 1715. Stealing in dwelling-house in night-time, § 1716. Unless specially averred, presumed to be in night, § 1717. Larceny of beast or bird, § 1718. Punishment generally, § 1719. Trespass with intent to steal, § 1720. Accessaries, § 1721. Stealing of real property, § 1722. Property of a person deceased, § 1723. Breaking and entering in night-time any building with intent, &c., § 1724. Entering in night-time without breaking, or in the day-time with breaking, any building with intent, &c., § 1725. Breaking and entering in day-time any building, &c., with intent, § 1726. Horse-stealing, receiving or buying stolen horse, concealing such horse, or a horse-thief, § 1750. (427) Same in Michigan. (428) Bank note in North Carolina. (431) Bank note in Tennessee. (432) Larceny in dwelling-house in day-time. Mass. Rev. stat., ch. 126, § 14. (433) Breaking and entering a vessel in the night-time, and committing a larceny therein, under Mass. Rev. stat., ch. 126, § 11. (434) Breaking and entering a shop in the night, and committing a larceny (435) Larceny by the cashier of a bank. Mass. st., 1846, ch. 171, § 1. (437) Breaking and entering a shop in the night-time, adjoining to a dwelling- (438) Entering a dwelling-house in the night-time without breaking, some persons being therein, and being put in fear. Mass. Rev. sts., ch. 126, § 12. (439) Breaking and entering a dwelling-house in the day-time, the owner being therein, and being put in fear. Mass. Rev. sts., ch. 126, § 12. (440) Breaking and entering a city hall, and stealing therein in the night-time. (441) Stealing in a building that is on fire. Mass. Rev. sts., ch. 126. Rev. sts. of Mass., ch. 126, § 16. (443) Larceny of real property. Mass. st., 1851, ch. 151. (444) Larceny and embezzlement of public property, on the statute of the United States of the 30th April, 1790, s. 26. (445) Against an assistant postmaster, for stealing money which came into his hands as assistant postmaster, on the Act of 3d March, 1825, s. 21. (446) Larceny of a slave in Missouri. (447) Same in Alabama. (448) Same in North Carolina. (449) Second count, seducing a slave with intent to sell, under the North Carolina Act of 1779. (415) General frame of indictment at common law. That A. B., one hat, (a) of the value of one dollar, (b) of the goods and chattels of C. D., (c) then and there being found, feloniously did steal, take and carry away. (d) (Conclude as in book 1, chap. 3.) (Analysis of Larceny in Wh. C. L.) B. LARCENY AT COMMON LAW. I. Subjects of larceny, § 1751. II. Felonious intent, § 1769. III. Taking and carrying away, § 1802. IV. Ownership, § 1818. V. Value, § 1837. VI. Taking where the offender has a bare charge, § 1840. VII. Taking where the possession of the goods has been acquired animo furandi, § 1847. VIII. Taking where the possession of the goods has been obtained without any fraudu lent intention in the first instance, § 1860. IX. Indictment, § 1869. (a) The articles alleged to be stolen should be described specifically by the names by which they are commonly known; and their number, quantity and value set forth; Wh. C. L. § 354–363. A lumping description will not do; but each individual article must be individually set forth; thus, "twenty wethers and ewes" would be bad for uncertainty; the actual number of each should be stated, 2 Hale 183; Archbold's C. P. 9th ed. 45. But when the articles are of the same kind they can be joined numeratively, as six pair of shoes of the value, &c.; one hat of the value," &c.; Wh. C. L. 354–363. "Six handkerchiefs," is good, though the handkerchiefs were in one piece, the pattern designating each; 6 Term R. 267; 1 Ld. Raym. 149. It has been held enough to say, "one hide of the value," &c.; State v. Dowell, 3 Gill & J. 310; "one book," &c., without describing its name; State v. Logan, 1 Mo. 377; one shovel plough;" State v. Sansom, 3 Brevard 5; " and a parcel of oats;" State v. Brown, 66 66 1 Dev. 137. The proof as to the description of articles must correspond with the allegation; but, as to the number, quantity or value, a variance between the statement and proof as will be seen, is wholly immaterial; R. v. Johnson, 3 M. & S. 148, 539. If a statute makes a distinction between things belonging to the same class, or commonly comprehended within one general term, it is essentially necessary to indicate the particular thing, and the general term will not be sufficient; R. v. McDermott, R. & R. 356; R v. Duffin, ib. 365. Where a statute, 15 Geo. II. c. 34, specified "lambs" as well as "sheep," and the indictment was for stealing sheep, evidence of stealing lambs was held not to support it; R. v. Loom and others, 1 Mood. C. C. 160; R. v. Cook, 2 East P. C. 616. A charge of stealing "one sheep," is not supported by proof of stealing an animal under a year old, called a "lambteg;” it should have been laid "one lamb;" R. v. Birkett, supra ; though in Delaware a contrary ruling was had; State v. Tootle, 2 Harringt. 541. (A charge of stealing lambs is supported by proof of finding the carcasses in the owner's gound, and only the skins carried away; R. v. Rawlins, 2 East P. C. 617.) It was long held in 7 and 8 Geo. IV. c. 29, s. 25, that an indictment for stealing a sheep would not be supported by proof of stealing a ewe, because that statute specifies "ewe, ram and lamb," as well as "sheep ;" R. v. Puddifoot, ib. 247; and "sheep" in that act means "wether" only; R. v. Birkett, 1 C. & P. 216. But a "rig sheep" was held well described as one sheep ;" R. v. Stroud, 6 C. & P. 535, Alderson B.; and now by a later decision, where the sex of the stolen animal could not be ascertained from inspecting those parts of the skin and flesh which remained, an indictment charging the stealing of a sheep was held sufficient, even assuming that the sheep stolen was not a wether, but "a ram, ewe or lamb;" for those words may be rejected, the word " sheep" in the act being a generic term; R. v. M'Culley, 2 Mood. C. C. 34. Under the Tennessee statute, in which "gelding" and "horse" are distinguished, evidence of stealing the former, will not support an indictment for stealing the latter; Tully v. State, 3 Humph. 323; though it would seem that "equus" in the Latin pleadings in trover was satisfied by proof of a gelding; Gravely v. Ford, Ld. Raym. 1209. Where the larceny of dead animals is charged, if the animal has another appellation when living from when dead, or if it is governed by a different law of property, it must be laid as dead, otherwise it will have been presumed to have been alive, and the variance will be fatal; R. v. Puckering, 1 Mood. C. C. 242; Wh. C. L. § 354–63. The principle is familiar, that no matter how many distinct articles are contained in the indictment, the proof of the stealing of the one only will be enough to support a conviction; Wh. C. L. § 354, 363, 616. Larceny does not lie for a thing which is not the subject of determinate property, as waifs, treasure trove, &c., Wh. C. L. 641; though deerskins, hung up in an Indian camp, Pa. v. Becomb, Add. 386; and clothing, found on a dead body, on shore, from a wreck, are not subject to this rule; Wenson v. Sayward, 13 Pick. 402. The goods must be personal goods, and of intrinsic value in which some one has a property, and they must not be connected with lands or buildings at the time of taking. They must be things of intrinsic value: and, therefore, if they are valuable only as evidence of claims or demands, or title to land, as notes, orders, bills, or deeds, they are not, at common law, the subject of larceny, although protected by statute, Arch. C. P. 9th ed. 165; Wh. C. L. § 349, 1751-68; State v. Tillery, 1 N. & M ̊C. 9; Cress v. State, 1 Port. 83; State v. Wilson, 2 Tr. Con. S. C. R. 49; State v. Holbrook, 13 Johns. 90; R. v. Westbeer, Stra. 1133; East P. C. 596. In the last case the writing stolen concerned the realty; but stealing the parchment on which a record, &c., of a court of justice not concerning the realty is written, is now indictable in England as a misdemeanor by the enactments of 7 and 8 Geo. IV. c. 29, s. 21 (see R. v. Walker, 1 Mood. C. C. 155), and was previously indictable as a larceny at common law if stated as so much parchment; ib. It seems that where the evidence fails to support a verdict in a count charging the larceny of the instrument under its technical description, there may be a conviction on a count charging the larceny of a piece of paper; R. v. Perry, 1 C. & K. 725. This principle, however, is now held only to apply to those cases where the paper, from want of a stamp or other reason, does not contain a valid agreement; R. v. Watts, 24 Eng. Law & Eq. 573; R. v. Powell, 14 Eng. Law & Eq. 574; Wh. C. L. § 349. So it is no larceny to take animals which are regarded as of a base nature, as dogs, cats, foxes, monkeys and ferrets, although domesticated, which do not directly or indirectly serve for food, and the value of which is merely accidental or imaginary; Hawk. b. 1, c. 33, s. 36; and, accordingly, it has been held, that an indictment for stealing "five live tame ferrets confined in a hutch," could not be supported, although it was proved that the animals were tame, and had been sold by the prisoner for nine shillings; R. v. Searing, R. & R. 350. Dogs, however, when taxed, are subject in Pennsylvania to a different rule; Wh. C. L. § 1741. Bees, which when confined in a hive are protected, cease to be so when unreclaimed, though they may happen to be confined in a tree by the owner of it; Waleis v. Mease, 3 Binn. 546. They must be things in which some one has a property; and, therefore, animals fera naturæ and unreclaimed, as deer in a forest, conies in a warren, a marten when caught in a trap in the woods, Norton v. Ladd, 5 N. Hamp. 203, fish in the sea or in rivers, game and wild fowl, unless domesticated, are not the subjects of larceny; 1 Hale 510. A reclaimed hawk is the subject of larceny, if known to be so; 1 Hale 512. So are swans, though at large in a public river, if lawfully marked, or whether marked or not, if in a private water, Dalt. c. 156. But when appropriated and confined, e. g. fish in a trunk or net, partridges or pheasants in a meadow, deer so inclosed in a park as to be taken out at pleasure; 1 Hale 511; 1 Hawk. c. 33, s. 39; or so tamed as to be habituated to return to a place provided by the owner, these animals being "under propriety," become the subject of larceny, as for instance a dove, when in its master's dove cote; Com. v. Chace, 9 Pick. 15; R. v. Brooks, 4 C. & P. 131. When killed, their flesh and skin are, in like manner, the property of the lawful possessor. On the same principle a man may be indicted for stealing ice when stowed away in an ice house for domestic use; Ward v. People, 3 Hill N. & R. 395; 6 ib. 144. They must be things unconnected with land or buildings at the time of the taking, or no larceny will be committed at common law by their being severed and immediately removed. Thus it was no larceny to dig and carry away minerals from the earth, to pull down and carry away any part of a building; to cut, gather and take corn and fruit, or to fell trees; 1 Hale 509, 510. But if any of these things be at one time severed by the offender from the land, and removed by him at another time, though the severance was by the offender himself, so that the severance and the removal cannot be regarded as one continued act, the removal will be a larceny. Thus, if coal, &c., be raised from a mine in day-time, and laid on the surface of the ground at the mouth of the pit, and carried away at night by the same party, or if corn be cut, or fruit gathered, or timber felled, at one time, and after an interval be carried away, without such a continued presence of the thief as to make the taking and carrying away one continued act; 1 Hale 510; or if copper be severed from the brickwork in which it is set during the day-time, and carried off at night by the same party; Lee v. Risdon, 7 Taunt. 191, these will be larcenies; Dickinson's Q. S. 6th ed. 238. (b) Some value must be attached to the article stolen, or the indictment will be bad; Wh. C. L. § 362-1869; Rosc. Cr. Ev. 512; People v. Payne, 6 Johns. 103; State v. Tillery, 1 N. & M'C. 9; People v. Wiley, 3 Hill N. Y. R. 194; State v. Wilson, 1 Port. 110; State v. Bryant, 2 Car. L. R. 269; State v. Thomas, 2 M'C. 527. Thus indictments charging the defendant with stealing a thing destitute of value, or to which no value is assigned, will be quashed; State v. Bryant, 2 Car. L. R. 617; Wilson v. State, 1 Port. 118. It is best to give a separate value to each distinct article included in an indictment, as otherwise the offence must be made out as to all the articles, as the grand jury has ascribed a value to all of them collectively; R. v. Forsyth, R. & R. 274. If value be given to some of the articles introduced, and not to the remainder, judgment will be arrested as to the part to which no value is given; Com. v. Smith, 1 Mass. 245; People v. Wiley, 3 Hill. N. Y. R. 194. As has just been noticed, where there is a difficulty in the description of a note or other instrument stolen, it is advisable to insert a count for the larceny of "one piece of paper of the value of one penny;" this assignment of value has been held to be sufficient; R. v. Perry, 1 C. & K. 725. But the better opinion is now that such an allegation is not good when the instrument is a valid one (ante, note b, Wh. C. L. § 349). In those states where the distinction between grand and petty larceny is abolished, it is immaterial whether the goods be proved to be of the value laid in the indictment or not; Arch. C. P. 10th ed. 49, 101, 211. (c) As has been already observed, it is of necessary importance that the name of the party whose goods are alleged to have been stolen, should be given correctly; see ante, 2, n.; Arch. C. P. 10th ed. 176; Wh. C. L. § 595-8. In applying this principle, there are one or two points which it is essential to keep in mind in determining the question of property in each particular case. 1. Where goods are stolen out of the possession of the bailee, they may be described in the indictment as the property of either bailor or bailee; Wh. C. L. § 1818, &c.; Arch. C. P. 10th ed. 212; State v. Somerville, 21 Maine 586; State v. Grant, 22 Maine 171. The cases usually given as an illustration of this rule are those of goods left at an inn; R. v. Todd, 2 East P. C. 658; cloth given to a tailor to manufacture and linen to a laundress to wash; R. v. Packer, 2 East P. C. 658; chattels intrusted to a person for safe-keeping; R. v. Taylor, 1 Leach 356; R. v. Slatham, ib.; see R. v. Ashley, 1 C. & K. 198; goods levied on by a constable and in his custody; People v. Palmer, 10 Wend. 165; in each of these cases the property may be laid as the goods and chattels of the bailee or of the owner, at the option of the prosecutor; see 2 Hale 181; 1 ib. 613; 1 Hawk. c. 33, s. 47; R. v. Bird, 9 C. & P. 44. But the bailee of a bailee has no such special property as would authorize the goods being laid as his. Thus an indictment will be vicious which lays the property of goods taken in execution in the bailee or (416) Stealing the property of different persons. That defendant, on, &c., at, &c., one(e) silver watch of the value of forty shillings, of the goods and chattels of E. T., two hats of the value of twenty shillings, and two(f) waistcoats of the value of six shillings, of the goods and chattels of(g) one G. H., then and there being found, feloniously did steal, take and carry away, (h) against, &c. (Conclude as in book 1, chap. 3.) receipter of the sheriff; Com. v. Morse, 14 Mass. 217; Norton v. People, 8 Cow. 137. The property also cannot be laid in one who has neither had the actual nor constructive possession of the goods, and thus where the person named as owner was merely servant to the real owner, or where the property was laid in the master who actually had never seen or received the goods, and where in fact the servant had been specially intrusted with them, the ownership was held to be wrongly laid; R. v. Hutchinson, R. & R. 412; R. v. Ruddick, 8 C. & C. 237. 2. Goods stolen from a dead person, such as the coffin or shroud, must be laid in the executors and administrators, if there be such, and if not, in the person who defrayed the expenses of the funeral; Wh. C. L. § 1818-37. 3. Goods stolen from a married woman must be invariably laid as the property of her husband, even though she lives in separation from him, with an income vested in trustees for her private use; Wh. C. L. § 1818-37; Arch. C. P. 10th ed. 213. Under the married woman's act they must be laid as her own, though it is desirable to add a count averring the ownership to be in her husband. But where goods were stolen from a single woman, who afterwards before indictment married, it was held that the property was rightly laid in her by her maiden name; R. v. Turner, 1 Leach 536. 4. At common law where the owners form an unincorporated partnership, the names of all of them must be correctly stated; Wh. C. L. § 1818-37; and even where the property was temporarily vested in one of them, the names of all the members of the firm must be set out; Hogg. v. State, 3 Blackf. 326; R. v. Shovington, 1 Leach 513; R. v. Beacall, 1 Mood. C. C. 15. But if the goods of a corporation are stolen, the property must be charged to be in the corporation in its corporate name, and not in the individuals who comprise it; R. v. Patrick, 2 East P. C. 1059; 1 Leach 253; Arch. C. P. 10th ed. 214. It is not necessary, it seems, to aver the political existence of the corporation, as that is a matter for evidence, and after verdict it may be inferred from the corporate name; Lithgow v. Com., 2 Va. Cases 296. 5. Necessaries furnished by a parent to a child, may be laid as the property of either parent or child; Arch. C. P. 10th ed. 213; 2 East P. C. 654; though it is safer to allege them to be the property of the child; R. v. Forsgate, 1 Leach 463; R. v. Hughes, C. & M. 593. 6. Where the owner is unknown it is to be so stated; Com. v. Morse, 14 Mass. 217; Com. v. Manley, 12 Pick. 173; 1 Hale 512; Wh. C. L. 71, § 250-8, 595-8; though if the names of the owners appear on the trial to have been capable of ascertainment at the finding of the indictment, the defendant must be acquitted; R. v. Walker, 3 Camp. 264; R. v. Robenson, Holt. C. N. P. 595. (d) Where the subject of the larceny is live cattle, "steal, take and lead away," may be substituted. "Take," however, is essential; 2 Hale 184; Wh. C. L. § 402. (e) As to the description of the property stolen, its value and ownership, see ante, Wh. C. L. 354-63, Stark. C. P. 213. The owner of goods stolen, is not in strictness entitled to the restitution of any which are not specified in the indictment; East P. C. 288. If a thief sell the goods the prosecutor is entitled to the money; Hanberrie's case, Cro. Eliz. 661; 1 Hale 542. (ƒ) Although in general, the value of each different individual article stolen, should be specified, Wh. C. L. § 362, 2 Hale 183, yet where several articles of property of the same nature and kind are stolen at the same time, as several sheep or handkerchiefs, it is the common practice to allege their value cumulatively, as ten handkerchiefs of the value of twenty shillings. And unless the defendant be convicted of stealing part only, no uncertainty can arise, but if the jury find that he stole one only, then it may be doubtful whether the offence be grand or petit larceny, since they were not alleged to be of the value of two shillings each, but in such case the difficulty might perhaps be obviated by finding the value specially. (g) Where the felonies are completely distinct, they ought not to be joined in the same indictment; see Wh. C. L. § 414-427; but where the transaction is the same, as where the property of different persons is taken at the same time, there seems to be no objection to the joinder. (h) These words are essential, ante, & 402; and, in an indictment of this nature, it |