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inder the Queen's protection, committing offences, may be proceeded 5. Against gainst in like manner; for he oweth a temporary local allegiance, owner's conounded on that share of protection he receiveth. (Fost. 185. See tit. sent. Aliens," Vol. I.) It is generally said, that larceny cannot be committed of that wherein Waifs, wreck. &c. one have any determinate property, as of treasure-trove, waifs, &c., ill seized. The same was said of wreck; but now the legislature has, y stat. 7 & 8 Geo. IV. c. 29, ss. 18, 19, protected the owners of property a this state against the odious plunderers of it. And indeed there eems to be some incorrectness in the generality of the position with espect to the other things mentioned. As to waifs, treasure-trove, &c., he lord has no determinate property in them, till seizure; but the true wner, though unknown, who has lost or been robbed of the things hemselves, has still a property in them. (1 Hawk. c. 33, s. 24; 1 Hale, 110; 2 East's P. C. 606). But now, by 7 Will. IV. & 1 Vict. c. 87, . 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, here no larceny can be committed before seizure by the lord, because he taking is not invito domino. See tit. “Estray," Vol. II. See furher, 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 The taking must lomino, i. e. without the will or approbation of the owner, for this is of be against the
owner's will. he very essence of larceny, and its kindred offence robbery. And herefore, where one S. conspired with M‘D. and other persons to proure 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. 565, S. C.)
Yet, in another case, one N., having been informed that one of the arly stage-coaches had been frequently robbed near the town, by a ingle 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 paslengers. Norden gave him his money; and then, jumping out of the chaise, with his pistol in his hand, with the assistance of some others, look 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 lar. ceny will be committed. (1 Leach, 47. See ante, 1097).
6. The felonious intent.
6. The FELONIOUS INTENT. There must be a The taking and carrying away must, to constitute larceny, be with a felonious intent.
felonious intent entertained at the time of the taking. The mind maketh Felony is always accompanied with an evil intention, and, then a felony.
shall not be imputed to a mere mistake or misanimadversion; as, ada persons break open a door in order to execute a warrant, which is justify such a proceeding; for in such case there is no felimination. (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 circum="3" is so great, and the cɔmplication thereof so mingled, that it is impos' to prescribe all the circumstances evidencing a felonious intense contrary; the same must be left to the due and attentive consider'.: of the judge and jury; wherein the best rule is, in doubtful iube rather to incline to acquittal than conviction. Only, in general, it be observed, that the ordinary discovery of a felonious intent is so party doing it secretly, or being charged with the goods, des :
(1 Hale, 509; ante, 1094; post, 1117). Claim of right. And if goods be taken on claim of right or property in them, is
be no felony; at the same time, it is matter of evidence whether like
, The prosecutor, a game-keeper, took them away, for the use code bord of the manor, while the prisoner was absent. The prisonette his wires and game, with menaces, and, under the influence on the prosecutor gave them up. The jury found, that the prisoner sind der a bonâ fide impression that the game and wires were his paper, and that he merely, by some degree of violence, gained pockstage what he considered his own. It was held no robbery, there being 2. animus furandi. (R. v. Hall, 3 C. & P. 409).
a man take a letter, supposing it belongs to himself, ani, a ing it does not, appropriates to himself any property it opta will not amount to larceny, there being no animus furandi stea bras received the letter. (R. V. Much low, R. & M. 160 ; and see
Godfrey, 8 C. & P.563, ante, p. 1096). Trespass.
And it may be, that the taking is no more than a trespass. die a man takes another's goods openly before him, or before orbe pro otherwise than by apparent robbery; or, having possessed by them, avows the fact before he is questioned. (i Hale, 540 ; : P. C. 661).
The prisoners enter another's stable at night, and take out bb and ride them thirty-two miles, and leave them at an inn, and wards found pursuing their journey on foot. On a finding by the that the prisoners took the horses merely with intent to ride, sal ditem wards leave them, and not to return or make any farther used held trespass and not larceny. (R.v. Phillips & Strong, ? Een?.' 662). So, where a person stole certain articles, and also took a be not with an intent to steal it, but only to get off more convenient the other property ; this was held not to be a stealing of the boxe v. Crump, i C. & P. 658).
Where the prosecutor met the prisoner, whom he knew to be poacher, and seized him, and the prisoner, being rescued, seized the?" of the prosecutor, and ran away with it, and subsequently was bei say that he would sell it, and the gun was never afterwards heard
Taughan, B., upon an indictment for stealing the gun, told the jury 6. The felohat it would not be a felony if the prisoner took the gun under an im- nious intent. ression at the time that it might be used, so as to endanger his life, nd not with an intention of disposing of it, although he afterwards right 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 atch them, and thereby to give the prisoner an opportunity to solicit Jer to commit fornication with him, is not felonious. (R. v, Butternorth, 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, 7, 509). It is said by Lord Hale, if one man take another man's corn or hay, Mixing goods with id mingle it with his own heap or cock; or take another man's others, oth, and embroider it with silk or gold ; such other person may reke the whole heap of corn, or cock of hay, or garment and embroidery $0; and this re-taking is no felony, nor so much as a trespass. (1 Tale, 513). If a person drop any chattel, and another find it and take it away Finding. ith the intention of appropriating it to his own use, and only restore because a reward is offered, he is guilty of larceny." The only cases in which a party finding a chattel of another can be istified in appropriating it to his own use are, where the owner cannot e found, or where it may be fairly said that the owner has abandonIf 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-quare ? 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 of 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 sught 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.
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.
& The felis consider the state of the finder's mind, and ruled, that if the jury sa intent. thought the person really believed the note to be her own by right a
finding, the jury should not bring in a verdict of guilty on an indict ment for s larceny of the note. (Reg. v. Reed, 1 Car. & M. 306).
A. picked up the purse of B., which contained money, on a turpike-road, along which B. had previously travelled by coach; A. 6 verted the purse and its contents to his own use :-Held, no larsen, and that A. was liable civilly, but not criminally. If there had been any mark on the purse by which the owner could have been known, would have been otherwise. (Reg. v. W. Mole, 1 Car, K. 417).
Where a person, on whom stolen property is found, gives to the who find him in possession of it a reasonable account of how he came by it, it is incumbent on the prosecutor, on the trial, to shew that tha: 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 see, had been found by a constable in the possession of the prisoner br days after it was lost, who said, that he had bought it of N., who livel about two miles off, it was held, that it was incumbent on the in secutor to negative this explanation. (Reg.v. Crowhurst, 1 Car. Ker S70).
And it is laid down, if A, finds the purse of B. in the highway, takes it and carries it away, and hath all the circumstances that e prore it to be done animo furandi, as denying it or secreting it, TEN not felony. (I Hale, 506).
It is observed by Mr. Russell, that the doctrine of a taking by focus must be admitted with great limitation, and must be understood to op ply only where the finder really believes the goods to have beec list by the owner, and does not colour a felonious taking under such spetz. (2 Russ. C. & N. 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 them animo furandi. (1 Hale, 506).
But even if the place where the goods are found is not one in the 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-mon, and a servant, finding it, took part: if, by circumstances, it can appear he box his master laid it there, it is felony: but then the circumstances * be pregnant : otherwise it may be reasonably interpreted to be a bure finding, because the purse was deposited in so unusual a place. (
re P. C. 664; 2 Hale, 507).
But, where a gentleman left a trunk in a hackney coach, and we coachman took and converted it to his own use ; it was held in for he must have known where he took up the gentleman sd trunk, and where he set him down; and, therefore, he ought to have stored it to him. (R. v. Lamb, 2 East'P. C. 664 ; 2 Rux. C. 101 ; and R. v. Il'ynne, 1 Leach, 413; 2 East's P. C. 664, S.C).
See a curious case of a conversion, with a felonious intent, alege sum of money, found in a bureau, which had been delivered to a penter for the purpose of being repaired, and where he was come 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 appropriated to his own use; it was held, that if he had express Doctor that the bureau only, and not its contents, if any, was sold to me if he had no reason to believe that anything more than the bureso 11 was sold, the abstraction of the money was a felonious taking, and was guilty of larceny ; but that if he had reasonable ground for bedrer ing that he bought the bureau with its contents, if any, he had a cola able right to the property, and it was no larceny. (Merry v. Greaty N. & W.623).
For in every case in which there is any mark upon the property by 6. The felowhich the owner may be traced, and the finder, instead of restoring the nious intent.
roperty, converts it to his own use, such conversion will amount to arceny. (R. v. James, 2 Russ. 102 ; R. v. Jones, Id.)
If a man's horse be upon a common where he has a right to put him, nd another take the horse with intent to steal it, it is no finding, but a elony. (1 Hale, 506). So, also, if the horse stray into a neighbour's round or common, it is felony in him that so takes him. (Id. 2 East's P. C. 664).
If A.'s sheep stray into B.'s flock, and B. drives it along with his lock, and by bare mistake shears it, this taking is not a felony; but if ne knew it to be another's, and marks it with his mark, this is an eviLence of felony. (1 Hale, 507). See further, as to waifs, &c., ante, 1103.
But, nevertheless, doing it openly and avowedly doth not excuse from Doing an act elony. As, where a man came to Smithfield market to sell a horse, and !
openly doth not
make it the less a jockey coming thither to buy a horse, the owner delivered his horse felony.
the jockey to ride up and down the market to try his paces; but intead of that the jockey rode away with the horse : this was adjudged -lony. (Kel. 82). So where a person came into a sempstress's shop, tiâÒ2 ÂòÂ?Â2Ò2Â§Â§2§22/ņēmū22timătiņū2ņēmēģ22ū22/?§Â2Ò2ÂÒ2ÂòÂÂÂÂÂỘò/â/22?? penly, in her sight, this was adjudged to be felony. (Chiser's case, T. laym. 276). So, where a man comes into a house, by colour of a writ fexecution, and carries away the goods; or sues out a replevin to get gother man's horse, and then runs away with him; this is a felony nder colour of law. (Bealey v. Sampson, 2 Vent. 94; Kel. 83).
Returning the thing taken generally evinces that the party, when he Returning the bok it, had no intention to deprive the owner of it, or to convert it to his goods wn use. Returning the goods, however, can be considered merely as ridence of the defendant's intentions when he took them; for if it apear that he took them originally with the intent of depriving the owner f them, and of appropriating them to his own use, his afterwards returnig them will not purge the offence. (See 1 Hawk, c. 34, s. 2; 1 Hale, 33; ante, 1100).
It is laid down by several writers, that it is no felony for one reduced Stealing through o extreme necessity to take so much of another's victuals as will save necessity. im from starving. But this can never be admitted as a legal defence la country like this, where such humane laws prevail for the care and laintenance of the poor. Even if the case existed in fact, it would in ruth be but little excuse that the party preferred this method of satisying his necessity, rather than apply to the persons charged with carying those law's into execution, because, perhaps, of some trouble or aprehension of reproof. Yet still, in apportioning the punishment, the ourt will have a tender regard to cases of real necessity, which may nd do sometimes exist under the best regulated governments. A false ense of shame has sometimes tempted persons, otherwise well disposed, o the commission of these offences. Sometimes, it is to be feared, they have been driven to it by the cruel and unfeeling conduct of others, who re in such instances more just objects of severity than the unhappy ufferers. (2 East's P. C. 699; 1 Hawk. c. 23, s. 30).
The felonious quality consists in the intention of the prisoner to de- What the interne raud the owner, and to apply the thing stolen to his own benefit or must be. use. (See 2 Stark. on Evidence, 827). The intent need not be lucri causâ. In a late singular case on this point, it was determined, that, where a servant clandestinely took his master's corn, though to give it to his master's horses, he was guilty of larceny; the servant in some degree being likely to diminish his labour thereby. (R. v. Morfit, R. & R. 307. And see R. v. Van Murgen, R. & R. 118)... . Some cases, however, go to establish that, if the taking be fraudulent, it is not necessary that it should be lucri causâ, and with intent wholly to deprive the owner of the property. As where A., to screen his ac