For in every case in which there is any mark upon the property by which the owner may be traced, and the finder, instead of restoring the property, converts it to his own use, such conversion will amount to larceny. (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, and another take the horse with intent to steal it, it is no finding, but a felony. (1 Hale, 506). So, also, if the horse stray into a neighbour's ground 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 e 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 elony. As, where a man came to Smithfield market to sell a horse, and jockey coming thither to buy a horse, the owner delivered his horse o 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 elony. (Kel. 82). So where a person came into a sempstress's shop, nd cheapened goods, and ran away with the goods out of the shop, 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 f execution, and carries away the goods; or sues out a replevin to get nother 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). 6. The felonious intent. Doing an act openly doth not felony. make it the less a 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 vidence 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 returng 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 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 1 a country like this, where such humane laws prevail for the care and aintenance 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 laws 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 Lave 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 intent raud the owner, and to apply the thing stolen to his own benefit or must be. ase. (See 2 Stark. on Evidence, 827). The intent need not be lucri causa. 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 6. The felonious intent. Intention must exist at time of taking. Intention, a question for jury. complice, who was indicted for horse-stealing, broke into the prosecutor's So, where A. and B., servants in husbandry, opened the granary of the master by means of a false key, and took thereout two bushels of be to give to their master's horses, in addition to the quantity usually all ed, this was holden larceny by a majority of the judges: but it wo alleged by some of the judges that the additional quantity of beans wa diminish the work of the men who had to look after the horses; therefore the lucri causâ, to give themselves ease, was an ingredient a the offence. (R. v. Morfit, R. & R. 307; Reg. v. Gruncell, 9 C. & P. 365; R. v. Handley, 1 C. & M. 547, post, 1121). On an indictment for larceny, by a servant in stealing his mas plate, it appeared that, after the plate in question was missed, but be fore complaint was made to a magistrate, the prisoner replaced; d it was proved by a pawnbroker, that the plate had been pawned by the prisoner, who had redeemed it; but the pawnbroker also stated the thr prisoner had on previous occasions pawned plate and after deemed it. Hullock, B. (Holroyd, J., being present), left itse jary to say, whether the prisoner took the plate with intent to star whether he merely took it to raise money on it for a time the rturn it; for that, in the latter case, it was no larceny. The juryquitted the prisoner. (R. v. Wright, Old Bailey, 1828, Car. C.L8-9% It is sufficient if the prisoner intend to appropriate the value of the chattel, and not the chattel itself, to his own use, as where the wwer of goods steals them from his own servant or bailee, in order to change him with the amount, ante, 1098. Taking away a sheep for the purpose of killing it, with an int steal part of the carcase, and not for the purpose of getting the sheep in a live state into the party's complete possession or dominis, was bad not an asportation to sustain an indictment under the 14 Gea. I for stealing the live sheep. (R. v. Williams, R. & M. 107; part. 1149). The intention must exist at the time of the taking, and no subt felonious intention will render the previous taking felonious; a, where goods are removed by the prisoner during a fire, with intent t them for the owner, and he afterwards determine to appropriate them t his own use; (2 East's P. Č. 694); or, where a bailment is d without any felonious intent on the part of the bailee, and a fir wards, and before the determination of the bailment, converte perty, this will not be larceny. (East's P. C. 594, 837; R. v.ds, B., &R. 441; and see ante, 1104). In all cases of larceny, the questions, whether the defendant to the goods knowingly or by mistake; whether he took them bond a claim of right or otherwise; and whether he took them with ment to return them to the owner, or to deprive the owner of them shegether, and to appropriate or convert them to his own use, are questions tirely for the consideration of the jury, to be determined by then p a view of the particular facts of the case. (1 Leach, 418; 3 Eat's C. 685; 1 Hale, 504; ante, 1107). Possession of stolen property recently after its loss, if unexplain presumptive evidence, that the party in possession stole it; but after v lapse of sixteen months from the loss, a person will not be called up: to account for the manner in which the property came into his posses- 1. Repeal of sion. (R. v. —, 2 C. & P. 459; R. v. Stimpson, 2 C. & P. 415. And see as to returning the goods, ante, 1107). II. Larceny and Embezzlement by Statute. The offence of larceny at common law has, from time to time, been onsidered by the legislature to be of too confined a description for the rotection of property, and the punishment of offenders: consequently, tatutes have been constantly passed, extending the offence to different ersons and kinds of property, not coming within the strict definition of he offence at common law, and also imposing heavier punishments in ggravated cases of larceny, as regards the stealing from the person and articular places. statutes. We shall consider the offence of larceny as extended by these statutes, Division of sub1 the following order : 1. The Repeal of prior Statutes by the 7 & 8 Geo. IV. c. 27, P. 1109. 2. The general Clauses of the Statute 7 & 8 Geo. IV. c. 29, being the general consolidating Statute relative to Larceny, p. 1113. 3. The Person committing Larceny, p. 1119. 4. The Property stolen, p. 1131. 5. Stealing from the Person, p. 1142. 6. The Place from whence stolen, p. 1142. 1. THE REPEAL OF PRIOR STATutes, by 7 & 8 GEO. IV. c. 27. The stat. 7 & 8 Geo. IV. c. 27, intituled, "An Act for repealing vaious statutes in England relative to the benefit of clergy, and to lareny; and other offences connected therewith, and to malicious injuries o property, and to remedies against the hundred," passed 21st June, 827, reciting, that "it is expedient to repeal various statutes now in orce in that part of the United Kingdom called England, relative to he benefit of clergy; and it is also expedient to repeal various statutes elative to larceny, and other offences of stealing, and to burglary, robery, and threats for the purpose of robbery or of extortion; and to mbezzlement, false pretences, and the receipt of stolen property, in rder that the provisions contained in those statutes may be amended nd consolidated into one act; and it is also expedient, with the same iew, to repeal various statutes relative to malicious injuries to property; and also, with the same view, to repeal various statutes relative to remelies against the hundred," enacts, "That so much of a charter or staute made in the ninth year of the reign of King Henry the Third, commonly called Charta de Foresta,' as relates to the punishment for aking the King's venison; and so much of stat. 3 Edw. I. cc. 2 & 20, is relates to clerks taken for guilty of felony, and to trespassers in parks and ponds; and so much of stat. 13 Edw. I st. 1, c. 46, as ordains that the towns near adjoining shall be distrained, to levy at their own cost a hedge or dyke overthrown, and to yield damages; and stat. 13 Edw. I. st. 2, except so much thereof as forbids fairs and markets being kept in churchyards; and stat. 21 Edw. I. st. 2; and so much of stat. 1 Edw. III. st. 1, c. 8, as relates to trespasses in the King's forests of vert and venison; and so much of stat. 25 Edw. III. st. 6, (vulgo st. 3), cc. 4, 5, as relates to clerks convicted of treasons or felonies, and to the arraignment of clerks; and so much of stat. 28 Edw. III. c. 11, as relates to making cry and fresh suit, and to hundreds and franchises being answerable as therein mentioned; and so much of stat. 34 Edw. III. ject. Repeal of statutes prior to 7 & 8 Geo. 4, c. 27. statutes. 7 & 8 Geo. 4, c. 27. Larceny and Embezzlement by Statute. 1. Repeal of c. 22, and of stat. 37 Edw. III. c. 19, as relates to hawks; and so mi of stat. 8 Hen. VI. c. 12, (s. 3), as relates to the offences of stealing taking away, withdrawing, or avoiding of any record or other thing therein mentioned; and so much of stat. 33 Hen. VI. c. 1, lates to servants taking and spoiling the goods of their masters de their death; and stat. 1 Hen. VII. c. 7; and stat. 4 Hen. VIL ¢.” and stat. 21 Hen. VIII. c. 7; and stat. 21 Hen. VIII. c. 11; stat. 23 Hen. VIII. c. 1; and stat. 23 Hen. VIII. c. 11; and 31 Hen. VIII. c. 2; and stat. 33 Hen. VIII. c. 1; and stat. 34 Hen. VIII. c. 14; and stat. 35 Hen. VIII. c. 17; and stat. 37 Ha VIII. c. 6; and so much of stat. 37 Hen. VIII. (s. 2), as rekis to persons stealing any horse, gelding, mare, foal, or filly; and much of stat. 1 Edw. VI. c. 12, (ss. 10, 14), as relates to houseing, robbing, horse-stealing, and sacrilege, and to the allowance of benefit of clergy in any case therein mentioned; and stat. 2 & 3 E VI. c. 33; and stat. 5 & 6 Edw. VI. c. 9; and so much of stat. 445 P. & M. c. 4, as relates to accessories to any robbery or burning there mentioned (a); and stat. 5 Eliz. c. 10; and stat. 5 Eliz. c. 21; and 8 Eliz. c. 4; and so much of stat. 13 Éliz. c. 25, (ss. 3, 18, 19). and perpetuates the act of the thirty-fifth year of the reign of Ka Henry the Eighth, hereinbefore recited; and so much (a) of st Eliz. c. 7, as relates to burglary, and to persons admitted to the of clergy; and stat. 27 Eliz. c. 13; and stat. 31 Eliz. c. 4; and se of stat. 31 Eliz. c. 12, (s. 5), as enacts that all accessories stealing shall be deprived of the benefit of clergy; and stat 15; and stat. 43 Eliz. c. 7; and stat. 43 Eliz. c. 18; and så stat. 2 Jac. I. c. 27, (recognized as existing in 2 Geo. III & lates to house doves, pigeons, and deer; and stat. 3 Jac. L act and the next are recognized as existing in 16 Geo. Il m stat. 7 Jac. I. c. 13; and stat. 15 Car. II. c. 2; and stat. 2 and stat. 22 & 23 Car. II. c. 7; and so much of stat. 2282(al c. 11, (s. 12), as relates to the wilful destruction of any ship by my the persons belonging to it, as therein mentioned; and s Car. II. c. 25, (except ss. 1 to 3), so far as relates to all subjec mentioned, except the appointment and powers of gamekeepers warrants, and the description of persons who are thereby declar persons not allowed to have or keep for themselves or any othe any guns, bows, greyhounds, or other animals or things the merated; and stat. 3 W. & M. c. 9; and so much of stat. c. 23, as relates to pigeons and fish, and to persons wrongfe and to all instruments and engines for destroying or taking the burning of any grig, ling, heath, furze, goss, or fern; of stat. 4 W. & M. c. 24, (s. 13), as explains the said recited third year of the same reign; and the whole of stat. 10 WILE (vulgo 10 & 11 Will. III. c. 23), except so much thereof a fees for discharging recognizances and drawing bills of indica to defective bills of indictment; and the whole of stat. 1 An 9, except so much thereof as relates to witnesses on behalf ✅ soner, upon any trial for treason or felony; and stat. 6 A (vulgo 5 Anne, c. 6); and stat. 12 Anne, st. 1, c. 7; and s stat. 13 Anne, c. 21, (vulgo 12 Anne, st. 2), as relates to 27 upon whom any goods stolen or carried off from any vesse shall be found, and to the several offences touching vessels which are thereby made capital felonies; and so much of stat. 1 st. 2, c. 5, (ss. 4, 6), as relates to any rioters demolishing a down, or beginning to demolish or pull down, any of the therein mentioned, and to the liability of the inhabitants of the dred, city, or town in which the damage shall be done, to yiel (a) Wholly repealed by 9 Geo. IV. c. 31. statutes. the party injured; and stat. 1 Geo. I. st. 2, c. 48; and the whole of stat. 1. Repeal of Geo. I. c. 11, (except s. 7), except so much thereof as relates to the trial iracy, felony, or robbery committed within the Admiralty jurisdiction; 7 & 8 Geo. 4, c. 27. stat. 5 Geo. I. c. 28; and stat. 6 Geo. I. c. 16; and stat. 9 Geo. I. c. 22; so much of stat. 2 Geo. II. c. 25, as relates to the stealing or taking robbery any orders or other securities therein enumerated; and stat. eo. II. c. 32; and stat. 6 Geo. II. c. 37; and stat. 8 Geo. II. c. 16; stat. 8 Geo. II. c. 20; and stat. 10 Geo. II. c. 32, (except s. 10), ept so much thereof as relates to wild fowl; and so much of stat. 11 . II. c. 22, (s. 5 to the end), as relates to the liability of the inhaants of hundreds (a); and stat. 13 Geo. II. c. 21; and stat. 14 Geo. c. 6; and stat. 15 Geo. IL. c. 34; and stat. 22 Geo. II. c. 24; and so h of stat. 22 Geo. II. c. 46, as relates to such writs, and the prolings thereupon; and stat. 24 Geo. II. c. 45; and stat. 25 Geo. II. 0; and so much of stat. 25 Geo. II. c. 36, as relates to the advertiseats therein prohibited; and so much of 26 Geo. II. c. 19, (ss. 1, 2, ,8(b)), as relates to any of the felonies therein mentioned, and to ch warrants, and to property belonging to any vessel lost, stranded, ist on shore, being found in any place, or in the possession of any on, and to any person offering or exposing to sale any such prov, as therein respectively mentioned; and so much of stat. 28 Geo. 19, as relates to persons burning or destroying the same; and stat. eo. II. c. 30; and so much of stat. 29 Geo. II. c. 36, (ss. 6, 7, 8, 9), lates to the remedy for the recovery of damages against the inhats of the adjoining parishes, towns, hamlets, villages, or places, and e punishment of the several offences relating to trees, and to the nation respecting the three acts of King George the First, as in respectively mentioned; and so much of stat. 30 Geo. II. c. 24, , as relates to obtaining by false pretence or pretences any property rein mentioned; and stat. 31 Geo. II. c. 35; and stat. 2 Geo. III. as relates to the preservation of house doves and pigeons, by making anner of convicting such person or persons as shall offend therein easy and expeditious; and stat. 4 Geo. III. c. 12; and stat. 4 [II. c. 31; and stat. 5 Geo. III. c. 14; and stat. 6 Geo. III. c. 36; at. 6 Geo. III. c. 48; and stat. 9 Geo. III. c. 29; and stat. 9 Geo. .41; and stat. 10 Geo. III. c. 18; and stat. 10 Geo. III. c. 48; › much of stat. 13 Geo. III. c. 31, (ss. 4, 5), as relates to the proseand punishment of persons for theft or larceny, and for receiving or g any stolen property as therein mentioned; and stat. 13 Geo. III. and stat. 13 Geo. III. c. 33; and stat. 16 Geo. III. c. 30; and the of stat. 19 Geo. III. c. 74, except so much thereof as relates to the lodgings; and stat. 21 Geo. III. c. 68; and stat. 21 Geo. III. c. 69; at. 22 Geo. III. c. 58; and stat. 31 Geo. III. c. 35; and stat. 33 Geo. 51; and so much of stat. 33 Geo. III. c. 67, (ss. 5, 6 (c)), as to persons who shall wilfully and maliciously set fire to, or deor damage otherwise than by fire, any ship, keel, or other vessel; much of 36 Geo. III. c. 9, (s. 3 to the end (d) ), as relates to the ty of the inhabitants of hundreds; and stat. 39 Geo. III. c. 85; much of stat. 39 & 40 Geo. III. c. 77, (ss. 1, 5), as declares what s shall be deemed and adjudged to be guilty of a misdemeanour, relates to any person who shall steal or take away, or break, destroy, e, or embezzle, any article not exceeding the value of five shillings ein mentioned, or shall break, destroy, or damage any waggon, cart, er carriage as therein mentioned; and stat. 41 Geo. III. c. 24, (U. nd stat. 42 Geo. III. c. 67; and stat. 42 Geo. III. c. 107; and so much And the 9 Geo. IV. c. 31, re3. 1 & 2. Also s. 11, repealed by 9 Geo. 31. (c) Also s. 2, repealed by 9 Geo. IV. c. 31. (d) Also part of ss. 1 & 2 by 9 Geo. IV. c. 31. |