IX. Receiving, &c., Stolen Goods, p. 1159. See "Accessary," 1. The taking.

Vol. I.

X. Offering Goods suspected to be stolen to be pawned, &c., p. 1159.

[30 Geo. II. c. 24, s. 7.]

XI. Forms, see List of, post, 1160.

I. Larceny at Common Law.

arceny at common law is defined (ante, p. 1083), to be the wrongful what.
ng away and carrying away of the personal goods of any one from
possession, with a felonious intent to convert them to the use of the
ider, without the consent of the owner.

he requisites of the offence, are:

1. The Taking, p. 1087.

2. The Carrying away, p. 1098.

3. The Goods taken, p. 1100.

4. The Owner of the Goods, p. 1102.

5. The Owner's Dissent from the Taking, p. 1103.

6. The felonious Intent in Taking, p. 1104.

1. THE TAKING.

general.]-To constitute the crime of larceny, there must be a or severance of the thing from the actual or constructive posses.. f the owner; for all felony includes trespass, and every indictment have the words feloniously took, as well as carried away; from e it follows, that, if the party be guilty of no trespass in taking ods, he cannot be guilty of felony in carrying them away. (1 . c. 33, s. 2); as in the case of a wife carrying away and converther own use the goods of her husband, for husband and wife are rson in law, and, consequently, there can be no taking so as to ute larceny; (1 Hale, 514); and the same if the husband be interested with others in the property so taken. (R. v. Willis, 1.375).

taking, however, may be by the hand of another; (1 East's P. ); as, if the thief procure a child within the age of discretion to oods for him, it will be the same as if he had taken them himnd the taking, in such case, should be charged to him. (1 Hale, Hawk. c. 33, s. 8).

Must be an actual taking from the owner.

possession of

structive posscs

sion.

possession of the owner may be either actual or constructive; that of actual and connay have the goods in his manual possession, or they may be in nal possession of another; and at the same time be constructively owner's possession; and they may be his property by virtue of ontract, and yet not have been reduced by him into actual pos; in which case his possession is constructive, as by placing them his servant's care, to be by him managed for him.

besides the actual and constructive possession in the owner, who same time has the property in him, there is a possession distinct he actual property, although arising out of an interest in the acquired by contract; as in the case of one who has possession is in pledge, or of goods lent, or let. Such an one has a proas well as possession) concurrent with the absolute property of

1. The taking. the real owner, and either defeasible or reducible into an absolute property, according to the terms agreed upon between him and the actual

Division of subject.

1. The taking

where the offender

owner.

Either of the above kinds of possession will be sufficient to sustain an indictment of larceny from the absolute owner.

As very nice questions frequently arise, as to what will amount to 1 sufficient taking, where the owner of the chattels has delivered the to the party accused, or a third person, we shall proceed to inquire in the subject in the following order, viz.:—

1. The Taking, where the Owner has delivered the Chattels under a bare Charge, p. 1088.

2. The Taking, where the Possession of the Goods has been obtaine animo furandi, p. 1090.

3. The Taking, where the Possession of the Goods has been obtaini bona fide without any fraudulent Intention in the first Instant, p. 1095.

4. The Taking, where the Offender has more than a special Property in the Goods, p. 1097.

1. The Taking, where the Offender has a bare Charge.]—The books o has a bare charge. tice cases in which, although the manual custody be out of the owner, and delivered by him to another, yet the possession, absolute as constructive, is deemed to remain in him, and the possession of the other to be no more than a bare charge.

Upon this difference between a possession and a charge, Lord Cake says: "There is a diversity between a possession and a charge; when I deliver goods to a man, he hath the possession of the goods, and may have an action of trespass if they be taken or stolen out of his per session. But my butler, or cook, that in my house hath charge of my vessels or plate, hath no possession of them, nor shall have an action of trespass as the bailee shall: and therefore, if they steal the plate, & it is larceny; and so it is of a shepherd, for these things be is onere non in possessione promi, coci, pastoris," &c.

So, he says, "If a taverner set a piece of plate before a man to drick in it, and he carry it away, &c., it is larceny; for it is no bailment, but a special use to a special purpose."

The servant who keeps a key to my chamber may be guilty of hy in fraudulently taking away the goods therein; for he hath only a bare charge given him.

And where a person employed to drive cattle, sells them, it is lary for he has the custody merely, and not the right to the possession; ( v. M‘Namee, R. & M. 368); although the intention to convert them were not conceived until after they were delivered to him. (.. Harvey, 9 C. & P. 353; Reg. v. Jackson, 2 Mood. C. C. 32).

So a carter going away with his master's cart was holden to have been guilty of felony. (R. v. Robinson 2 East's P. C. 565).

If A. ask B., who is not his servant, to put a letter in the post, telling him that it contains money, and B. break the seal and abstra, the money before he puts the letter in the post, he is guilty of larceny. (R v. Mary Jones, 7 C. & P. 151).

So, if a master deliver property into the hands of a servant for a pe cial purpose, as to leave it at the house of a friend, or to get change, to deposit it with a banker, the servant will be guilty of felony in apply ing it to his own use, for it still remains in the constructive possessio of its owner. (2 Leach, 870, 942; 1 Leach, 302).

If a banker's clerk is sent to the money room to bring cash for a par ticular purpose, and he takes the opportunity of secreting some for his own use; (1 Leach, 344); or if a tradesman intrust goods to his serv to deliver to his customer, and he appropriates them to himself; (

Bass, 2 East's P. C. 556; 1 Leach, 251; Vale v. Bayle, Kel. 33; Cowp. 1. The taking. 294); the parties are respectively guilty of larceny.

And if several persons play together at cards, and deposit money for that purpose, not parting with their property therein, and one sweep it all away and take it to himself, he will be guilty of larceny, if the jury find that he acted with a felonious design. (1 Leach, 270; R. v. Williams, 6 C. & P. 390 ; Cald. 295 ; post, 1091; and see R. v. Robson, R. & R. 413).

And if a bag of wheat be delivered to a warehouseman merely for safe custody, and he take all the wheat out of the bag, and dispose of it, it is larceny. (R. v. Brazier, R. & R. 337 ; and see R. v. Spear, post, 1096).

And where a banker's clerk took notes from the till, under colour of
check from a third person, which check he obtained by having enter-
da fictitious balance in the books in favour of that person, it was
eld he was guilty of felony; the fraudulent obtaining the check being
othing more than mere machinery to effect his purpose. (R. v. Ham-
on, 4 Taunt. 304; R. & R. 221; 2 Leach's C. C. 1083, S. C.) So an
nauthorized gift by the servant of his master's goods is as much a
lony as if he sold or pawned them. (Reg. v. White, 9 C. & P. 344).
A., employed as a clerk, in the day time, but not residing in the
ouse, embezzles a bill of exchange, which he received from his master
1 the usual course of business, with directions to transmit it by the
ost to a correspondent, was held guilty of larceny. (R. v. Paradice,
East's P. C. 565; and see The King v. Mead, (Chelmsford Summer
ssizes), 1816; 3 Chit. C. L. 891, 2nd edit.)

So B., a clerk to the prosecutors, and managed their cash concerns,
id took bills to their bankers to discount whenever they wanted cash;
id took from his master's desk an accepted bill, placed there by an-
her clerk who had got it accepted by his master's order, and got it
scounted, and absconded with the cash; he was held to be guilty of
reeny, though it was objected, that, by the course of business, he had
right to get money for the bill, and, therefore, could not be indicted
gally for stealing the bill itself. (Chipchase's case, 2 East's P. C. 567;
Leach, 699, S. C.)

Where goods have not been actually reduced into the owner's posses-
on, yet, if he has intrusted another to deliver them to his servant, and
ey are delivered accordingly, and the servant embezzle them, he may
guilty of larceny. (R. v. Spear, 2 East's P. C. 568; 2 Leach, 825,
C.; R. v. Abrahat, 2 Leach, 824; 2 East's P. C. 569, S. C.)
On the trial of an indictment for larceny as a servant, it appeared that
le prisoner lived in the house of the prosecutor, and acted as the nurse
› her sick daughter, the prisoner having board and lodging and occa-
onal presents for her services, but no wages. While the prisoner was
> residing, the prosecutor's wife gave the prisoner money to pay a coal
ill, which money the prisoner kept, and brought back a forged receipt
> the coal bill:-Held, that the prisoner was not the servant of the pro-
cutor, but that this was a larceny of the money. (Reg. v. Frances
mith, 1 Car. & K. 423).

These several cases were all founded upon the master having an actual r legal possession, prior to the delivery to the servant. But there are thers in which the master has neither property nor possession in the oods, previously to the receipt of them by his servant from a third peron, for the purpose of delivering them to him. And it has been held, hat a servant so receiving goods, and then embezzling them, is not guilty of larceny at common law. (2 East's P. C. 568).

Therefore, if a shopman receive money from a customer of his master, and, instead of putting it into the till, secrete it; (R. v. Bull, 2 Leach, 841, cit.); or if a banker's clerk receive money at the counter, and, instead of putting it into the proper drawer, purloin it; (R. v. Bazely, 2 Leach, 835; or receive a bond, for the purpose of being deposited in VOL. III.

4 A

Where master has neither property the goods.

nor possession in

1. The taking. the bank, and, instead of depositing it, convert it to his own use; (R. v. Waite, 1 Leach, 28; 2 East's P. C. 570): in these cases, it has been holden that the clerk or shopman is not guilty of larceny at comme law (a).

(2). The taking

where the posses

sion of the goods

animo furandi.

So, where the prosecutor gave the prisoner, his servant, a five-por note to get changed; he got the note changed, and made off with the change; it was held no larceny at common law to steal the change, b an embezzlement, and that the conviction was wrong. (R. v. Sallu cor. 12 Js. 1826, MS. Car. C. L. 319; R. & M. 129, S. C. And see l v. Hadge, R. & R. 160).

In such cases the servant or clerk ought to be indicted under the 7 & 8 Geo. IV. c. 29, s. 47, and as to which and embezzlement, post, 1094.

2. The Taking, where the Possession of the Goods has been obtaini Animo furandi. -Where the offender unlawfully acquired the po has been obtained sion of goods, as by fraud or force, &c., with an intent to steal them, the owner still retaining his property in them, such offender will be guy of larceny in embezzling them. Therefore, hiring a horse on pretens of taking a journey, and immediately selling it, is larceny; because the jury found the defendant acted animo furandi, in making the contract and the parting with the possession merely had not changed the na of the property. (R. v. Pear, 2 East's P. C. 685; 1 Leach, 212, & C And so, where a person hires a post-chaise for an indefinite penal converts it to his own use, he may be convicted of larceny, if his er ginal intent was felonious. (R. v. Semple, 2 Leach, 420; 2 Eats P.C. 691, S. C. And see R. v. Charlewood, 1 Leach, 409; 2 East's P. C.688, S. C.)

So, where the prisoner, intending to steal the mail bags from postoffice, procured them to be let down to him by a string, from the window of the post-office, under pretence that he was the mail-guard, he was held guilty of larceny. (R. v. Pearce, 2 East's P. C. 60

Where the prisoner was hired for the special purpose of driving she ? from one fair to another, and, instead of doing so, drove them, the fi lowing morning after he received them, a different road, and sold the the jury having found, that, at the time he received the sheep intended to convert them to his own use, and not drive them to the specified fair, the judges were unanimously of opinion, the be rightly convicted of larceny. (R. v. Stock, R. & M. 87. St. Walsh, R. & R. 215; R. v. Parkin, R. & M. 45; R. v. Crump, 1C.S P. 658).

Where the defendant offered to give the prosecutor gold ir bak notes, and upon the prosecutor's laying down some bank notes for the

purpose of having them changed for gold, the defendant took th
and went away with them, promising to return immediately with
gold, but never, in fact, returned, and he was indicted for stealing them
Wood, B., left it to the jury to say, whether the defendant had
mus furandi at the time he took the notes; and said, that if they were
of that opinion, the case clearly amounted to larceny. (R. v. Gr
Taunt. 274; 2 Russ. C. & M. 122, S. C., cited by Gurney, for the
cution, in the case of R. v. Walsh, 4 Taunt. 274; 2 Leach, W;
& R. 215, S. C.) And, in the same case, Wood, B., said, "that s par
ing with the property in goods could only be effected by contract,
required the assent of two minds; but that in this case there w
the assent of the mind, either of the prosecutor or of the prisoner: 1
prosecutor only meaning to part with his notes on the faith of hav
the gold in return, and the prisoner never meaning to barter, but
steal." And see Reg. v. Rodway, 9 C. & P. 784.

(a) But see this offence under stat. 7 & 8 Geo. IV. c. 29, s. 47, post, 197.

In another case, where it appeared that the prisoners decoyed the pro- 1. The taking. secutor into a public house, and there introduced the play of cutting cards, and that one of them prevailed upon the prosecutor (who did not play on his own account) to cut the cards for him, and then, under pretence that the prosecutor had cut the cards for himself, and had lost, another of them swept his money off the table, and went away with it; it was considered to be one of those cases which should be left to the jury to determine quo animo the money was obtained, and which would be felony in case they should find that the money was obtained upon a preconcerted plan to steal it. (R. v. Horner and others, 1 Leach, 270; Cald. 295).

Where the defendant agreed to discount a bill for the prosecutor, and the bill was given to him for that purpose; he told the prosecutor, that, if he then sent a person with him to his lodgings, he should give him the amount, deducting the discount and commission; a person was sent accordingly; but, upon reaching the lodgings, the defendant left the messenger there, and went out on pretence of getting the money, but never returned; the judge left it to the jury to say, whether the defendant obtained possession of the bill with intent to steal it, and whether the prosecutor meant to part with his property in the bill, before he should have received the money for it; the jury being of opinion in the affirmative on the first proposition, and in the negative on the second, convicted the prisoner; and the judges afterwards held the conviction to be right. (R. v. Áickles, 2 East's P. C. 675; 1 Leach, 294, 8. C.)

Where the defendant obtained from a silversmith two cream ewers, that a customer of the silversmith, with whom the defendant said he lived, might select which he liked best, and absconded with them, but the silversmith did not charge for either of the ewers, and did not at the time of the delivery intend to charge for either of them until he had ascertained which would be chosen, this was holden by Bayley, J., to be larceny, because the possession only, and not the right of property, had been parted with; R. v. Davenport, MS. 1. Arch. Peel's Acts, 5; but, if the prisoner had in fact been sent by the customer to the silversmith, the possession would have been in the prisoner, and the subsequent conversion would not have been larceny; and upon this ground in a case similarly circumstanced, but in which there was no evidence that the prisoner had not actually been sent for the goods—Patteson, J., directed an acquittal; for, non constat that the prisoner had not been sent for the goods as she had stated, and had delivered them to the person who sent her. (R. v. Savage, 5 C. & P. 143).

Prevailing upon a tradesman to bring goods, proposed to be bought, to a given place, under pretence that the price shall then be paid for them, and further prevailing upon him to leave them there in the care of a third person, and then getting them from that person without paying the price, is a felonious taking, if, ab initio, the intention was to get the goods from the tradesman and not pay for them. (R. v. Campbell, R. & M. R. 179).

And where a person, by false pretences, induced a tradesman to send by his servant, to a particular house, goods of the value of 2s. 10d., with change for a crown-piece. On the way he met the servant, and induced him to part with the goods and change a crown-piece, which afterwards was found to be bad. Both the tradesman and servant swore that the latter had no authority to part with the goods or change without receiv ing the crown-piece in payment, though the former admitted that he intended to sell the goods, and never expected them back again:-It was held, that the offence amounted to larceny. (Reg. v. Small, 8 C. & P. 46).

So, taking goods the prisoner has bargained to buy, is felonious, if, by the usage, the price ought to be paid before they are taken, and the