4. The owner. ginal state; and that it is not sufficient to add, "of the goods a chattels of such a one." (R. v. Rough, 2 East's P. C. 607). Animals of a base nature. The owner. Stealing from the thief. Stealing pheasants fied person. Nor can larceny be committed of the eggs of animals fere nature. (Ib.) A stock of bees may, it seems, be the subject of larceny. (T) Smith, T. Raym. 33). But there are some animals, which, though they may be reclaime yet are considered of so base a nature, that no larceny can be commine of them; such as bears, foxes, monkeys, cats, ferrets, and the la which are kept for whim and pleasure. (1 Hale, 512; 4 Bla. (a. 235). And the same rule applied to dogs, unless, perhaps, those wh the law recognizes as valuable, such as a mastiff, hound, spaniel, a tumbler. (Wright v. Ramscot, 1 Saund. 83). But now, by stat& 8 Geo. IV. c. 29, s. 31, post, 1141, the stealing of dogs and other bea and birds is made punishable upon conviction before two justices. (. East's P. C. 614), In R. v. Searing, (R. & R. 350), it was held, that ferrets, though t and saleable, cannot be the subject of larceny. 4. THE OWNER. The goods taken, to constitute larceny, must be the property of another person, and not of the party taking them. Therefore tenant or wife cannot be guilty of larceny in taking away the f the co-tenant or husband. This rule has been already noticed, art, 1. As to how far a man may steal his own goods, see ante, 106 As to how far bailees are liable, see ante, 1095, 1097. Though the owner be unknown, provided there be a property, it is larceny to steal it; and the indictment will lie for stealing the goods of a person unknown. (1 Hale, 512; see post, 1151). As to stealing a shroud, see Vol. I. p. 414. And see further, as to who may be considered as the owner, and the mode of describing him in the indictment, post, 1150, &c. If one stealeth another man's goods, and afterwards another stealth the same from him; the owner may charge the first or second felon at his choice. (Dalt. c. 162). T. J. was indicted for stealing five pheasants restrained of their natural from an unquali- liberty, the property of A. Fountain. It appeared on the evidence, that Fountain was an alehouse-keeper, and not a qualified person to p to shoot game; and that he bred these pheasants for sale. And objected, on behalf of the prisoner, that F., not being a qualified pets, could have no property in the pheasants, nor any legal possession seẾcient to support the indictment; that by the several statutes relating to the game laws, unqualified persons are forbidden, under certa penalties, to have pheasants in their possession; and that, by one of those statutes, authority is given to a justice of the peace to tak from such person any pheasant he may have in his possession. But Grose, J., held, that it was sufficiently legal possession for the pr of the indictment; and the prisoner was convicted. (Buckingham Lent Assizes, 1809, R. v. Jones, cor. Grose, J., MS. (K). But see 8 C. & P. 642). Alien. An alien, whose sovereign is in amity with the Crown of England, residing here, and receiving the protection of the law, oweth a lo allegiance to the Crown during the time of his residence; and if, durin that time, he commiteth an offence, he shall be liable to be punishe for the same, even as a natural-born subject. For his person and personal estate are as much under the protection of the law as the natura born subject's; and, if he is injured in either, he hath the same remedy at law for such injury. (Fost. 185). So also an alien, whose sovereign is at enmity with us, living here under the Queen's protection, committing offences, may be proceeded against in like manner; for he oweth a temporary local allegiance, founded on that share of protection he receiveth. (Fost. 185. See tit. "Aliens," Vol. I.) 5. Against owner's con sent. It is generally said, that larceny cannot be committed of that wherein Waifs, wreck. &c. none have any determinate property, as of treasure-trove, waifs, &c., till seized. The same was said of wreck; but now the legislature has, by stat. 7 & 8 Geo. IV. c. 29, ss. 18, 19, protected the owners of property in this state against the odious plunderers of it. And indeed there seems to be some incorrectness in the generality of the position with respect to the other things mentioned. As to waifs, treasure-trove, &c., the lord has no determinate property in them, till seizure; but the true owner, though unknown, who has lost or been robbed of the things themselves, has still a property in them. (1 Hawk. c. 33, s. 24; 1 Hale, 510; 2 East's P. C. 606). But now, by 7 Will. IV. & 1 Vict. c. 87, s. 1, it is felony. See tit. " Wreck," Vol. VI. Where, indeed, the circumstances of the case furnish a presumption of an intended dereliction of such property on the part of the owner, there no larceny can be committed before seizure by the lord, because the taking is not invito domino. See tit. "Estray," Vol. II. See further, as to stealing property found, post, 1105. 5. AGAINST OWNER'S CONSENT. The taking must be against the will of the owner. The primary inquiry to be made is, whether the taking were invito domino, i. e. without the will or approbation of the owner, for this is of the very essence of larceny, and its kindred offence robbery. And therefore, where one S. conspired with M'D. and other persons to procure two others, ignorant of the design, to rob him on the highway, in order to procure to themselves the reward given by act of Parliament for apprehending robbers on the highway; and he accordingly went, in pursuance of such agreement, to the place appointed, where the supposed robbery was effected; the case was holden not to amount to felony. (R. v. M'Daniel and others, Old Bailey, 1755, Fost. 121; 2 East's P. C. 665, S. C.) Yet, in another case, one N., having been informed that one of the early stage-coaches had been frequently robbed near the town, by a single highwayman, resolved to use his endeavours to apprehend him; for which purpose he put a little money and a pistol into his pocket, and attended the coach in a post-chaise, till the highwayman approached the carriages, and presenting a weapon, demanded the money of the passengers. Norden gave him his money; and then, jumping out of the chaise, with his pistol in his hand, with the assistance of some others, took the highwayman. This was ruled clearly to be robbery, and the felon was convicted. For this case differed widely from the former; there was no previous concert with the highwayman, directly or through the medium of others, that the robbery should be effected, or any thing to lessen the danger of the attempt. (Norden's case, Old Bailey, 1754; Fost. 129; 2 East's P. C. 666). Where a servant, being solicited to become an accomplice in robbing his master's house, informed his master of it, and the master thereupon told him to carry on the affair, consented to his opening the door leading to the premises, and to his being with the robbers during the robbery, and also marked his property, and laid it in a place where the robbers were expected to come; it was holden, that this conduct of the master was no defence to an indictment against the robbers. (R. v. Egginton, 2 B. & P. 508; 2 East's P. C. 666, 496; 2 Leach, 913). If the goods be taken with the consent or privity of the wife, no larceny will be committed. (1 Leach, 47. See ante, 1097). The taking must be against the owner's will. 6. The felonious intent. There must be a 6. THE FELONIOUS INTENT. The taking and carrying away must, to constitute larceny, be with felonious intent. felonious intent entertained at the time of the taking. The mind maketh a felony. Claim of right. Trespass. Felony is always accompanied with an evil intention, and, ther shall not be imputed to a mere mistake or misanimadversion; as, vi persons break open a door in order to execute a warrant, which was justify such a proceeding; for in such case there is no felonious tion. (1 Hawk. c. 25, s. 3). For it is the mind that makes the taking of another's goods to be lony, or a bare trespass only; but because the variety of circunst is so great, and the complication thereof so mingled, that it is imp to prescribe all the circumstances evidencing a felonious intent, t contrary; the same must be left to the due and attentive considerat. of the judge and jury; wherein the best rule is, in doubtful match rather to incline to acquittal than conviction. Only, in general, t be observed, that the ordinary discovery of a felonious intent is, the party doing it secretly, or being charged with the goods, denying (1 Hale, 509; ante, 1094; post, 1117). And if goods be taken on claim of right or property in them, be no felony; at the same time, it is matter of evidence whether g were bona fide so taken, or whether they were not taken from the son actually possessing them, with a thievish and felonious And therefore, obtaining possession of goods by a fraudulen das e right, or by a fraudulent pretence of law, and then running them, would be a felony. (1 Hale, 507; 1 Hawk. c. 33, s.; Farra case, Kel. 43). In a recent case, the prisoner had set wires, in which game was caught. The prosecutor, a game-keeper, took them away, for the use of the manor, while the prisoner was absent. The prisontemnded his wires and game, with menaces, and, under the influence of bear, the prosecutor gave them up. The jury found, that the prisoner acted der a bona fide impression that the game and wires were his per and that he merely, by some degree of violence, gained posses of what he considered his own. It was held no robbery, there being animus furandi. (R. v. Hall, 3 C. & P. 409). If a man take a letter, supposing it belongs to himself, and, ing it does not, appropriates to himself any property it co will not amount to larceny, there being no animus furandi whe received the letter. (R. v. Muchlow, R. & M. 160; and see Day '. Godfrey, 8 C. & P. 563, ante, p. 1096). And it may be, that the taking is no more than a trespass, As a man takes another's goods openly before him, or before other p otherwise than by apparent robbery; or, having possessed them, avows the fact before he is questioned. (I Hale, 509; P. C. 661). The prisoners enter another's stable at night, and take out he and ride them thirty-two miles, and leave them at an inn, and wards found pursuing their journey on foot. On a finding by that the prisoners took the horses merely with intent to ride, s wards leave them, and not to return or make any farther used held trespass and not larceny. (R. v. Phillips & Strong, 2 Eats!" 662). So, where a person stole certain articles, and also took ab not with an intent to steal it, but only to get off more conveniently the other property; this was held not to be a stealing of the horse v. Crump, 1 C. & P. 658). Where the prosecutor met the prisoner, whom he knew to poacher, and seized him, and the prisoner, being rescued, seized the " of the prosecutor, and ran away with it, and subsequently was bes say that he would sell it, and the gun was never afterwards heard Vaughan, B., upon an indictment for stealing the gun, told the jury that it would not be a felony if the prisoner took the gun under an impression at the time that it might be used, so as to endanger his life, and not with an intention of disposing of it, although he afterwards night have determined to dispose of it; and the jury, being of opinion hat he had no intention of disposing of the gun at the time he took it, cquitted the prisoner. (R. v. Holloway, 5 C. & P. 524). Clandestinely taking away articles, to induce the owner (a girl) to etch them, and thereby to give the prisoner an opportunity to solicit er to commit fornication with him, is not felonious. (R. v. Butterporth, R. & R. 420). It depends also on circumstances what offence it is to force a man in he possession of goods to sell them; if the defendant takes them, and hrows down more than their value, it will be evidence that it was only respass; if less were offered, it would probably be regarded as felony. Burrows v. Wright, 1 East's Rep. 615, 616). And it seems, that the taking may be only a trespass, where the oriinal assault was felonious. Thus, if a man searches the pockets of anher for money, and finds none, and afterwards throws the saddle from is horse on the ground, and scatters bread from his packages, he will ot be guilty of robbery; (2 East's P. C. 662); though he might cerinly have been indicted for feloniously assaulting with intent to steal, r that offence was complete. A taking by mere accident, or in joke, or mistaking another's prorty for one's own, is neither legally nor morally a crime. (2 Hale, 17, 509). 6. The felo nious intent. others. It is said by Lord Hale, if one man take another man's corn or hay, Mixing goods with If a person drop any chattel, and another find it and take it away Finding. The only cases in which a party finding a chattel of another can be If a person find the chattel of another, and do not immediately bring to the owner in the hope that, by bringing it on the next day, he may eceive a present for so doing whether this is a larceny—quære? Reg. v. Peters, 1 Car. & Kirw. 245; per Rolfe, B.) It is laid down, that if a party lose his goods, and another find them, hough he convert them, animo furandi, to his own use, yet it is no lareny, for the first taking was lawful. (3 Inst. 108; 1 Hawk. c. 33, s. ; 2 Russ. 100). And where a servant indicted for stealing bank notes, the property f her master, in his dwelling house, set up as her defence that she ound them in the passage, and, not knowing to whom they belongd, kept them to see if they were advertized, Park, J., held, that she ught to have inquired of her master whether they were his or not, and that not having done so, but having taken them away from the house, she was guilty of stealing them. (Reg. v. Kerr, 8 C. & P. 177). Although a person finding property, the ownership of which has not been abandoned, may not convert it to his own use, at any rate not without some endeavour to discover the owner; and although ignorance of the law will excuse none, yet, where an ignorant person found a five-pound note, and appropriated it, the Court directed the jury to VOL. III. 4 B 6. The felonious intent. consider the state of the finder's mind, and ruled, that if the ju thought the person really believed the note to be her own by right finding, the jury should not bring in a verdict of guilty on an inde ment for a larceny of the note. (Reg. v. Reed, 1 Car. & M. 306). A. picked up the purse of B., which contained money, on a t pike-road, along which B. had previously travelled by coach; A. verted the purse and its contents to his own use:-Held, no lam and that A. was liable civilly, but not criminally. If there had m any mark on the purse by which the owner could have been know. would have been otherwise. (Reg. v. W. Mole, 1 Car. & K. 417). Where a person, on whom stolen property is found, gives to ha who find him in possession of it a reasonable account of how he ca by it, it is incumbent on the prosecutor, on the trial, to shew that the account is untrue. Aliter, if that account be unreasonable or in bable on the face of it. Where a piece of wood, which had been start had been found by a constable in the possession of the prisoner y days after it was lost, who said, that he had bought it of N., who bo about two miles off, it was held, that it was incumbent on the pr secutor to negative this explanation. (Reg. v. Crowhurst, 1 Car. E 370). And it is laid down, if A. finds the purse of B. in the highway, a takes it and carries it away, and hath all the circumstances that prove it to be done animo furandi, as denying it or secreting it, yats not felony. (1 Hale, 506). It is observed by Mr. Russell, that the doctrine of a taking briang must be admitted with great limitation, and must be unders ply only where the finder really believes the goods to have beastly the owner, and does not colour a felonious taking under such a pre (2 Russ. C. & M. 100; 1 Hale, 506). It will not avail, therefore, that a man's goods be in a place in which ordinarily and lawfully they are or may be placed, if a person take a animo furandi. (1 Hale, 506). But even if the place where the goods are found is not one in whe ordinarily they would be deposited, circumstances may shew the taking to have been felonious. (1 Hale, 506). Thus, where a man hid a purse of money in his corn-mow, and his servant, finding it, took part: if, by circumstances, it can appeare bes his master laid it there, it is felony: but then the circumstans be pregnant: otherwise it may be reasonably interpreted to be a h finding, because the purse was deposited in so unusual a place. ( P. C. 664; 2 Hale, 507). y But, where a gentleman left a trunk in a hackney coach, and the coachman took and converted it to his own use; it was held for he must have known where he took up the gentleman a trunk, and where he set him down; and, therefore, he ought to h stored it to him. (R. v. Lamb, 2 East's P. C. 664; 2 Rus. (1) 101; and R. v. Wynne, 1 Leach, 413; 2 East's P. C. 664, §. C) See a curious case of a conversion, with a felonious intent, a sum of money, found in a bureau, which had been delivered to penter for the purpose of being repaired, and where he was c guilty of larceny. (8 Ves. 405; 2 Leach, 952). But where a person purchased at an auction a bureau, in which afterwards discovered, in a secret drawer, a purse of money, which he appropriated to his own use; it was held, that if he had expres that the bureau only, and not its contents, if any, was sold to h if he had no reason to believe that anything more than the burea was sold, the abstraction of the money was a felonious taking, and was guilty of larceny; but that if he had reasonable ground for bei ing that he bought the bureau with its contents, if any, he had acce able right to the property, and it was no larceny. (Merry v. Grm M. & W. 623). |