coat of the value of ten shillings, and one linen shirt of the value of five shillings], of the monies, goods, and chattels of one C. D., then and there being found, feloniously did steal, take, and carry away against the peace of our lord the king, his crown and dignity. C. C. C. 45, 246. See Rex v. Dunn and Smith, post, p. 283. Evidence. Larceny is the felonious taking and carrying away of the personal goods of another. To maintain this indictment, therefore, the prosecutor must prove 1. A felonious taking. To constitute larceny, there must be a taking, either actual or constructive. A woman, therefore, cannot be guilty of larceny, in taking the goods of her husband; because her possession is his possession. And the same, where the property belongs to her husband and others. And therefore where money belonging to a friendly society was deposited in a box, and placed in the custody of one of the members, and his wife broke open the box and stole the money: the judges held that an indictinent against her as for larceny, could not be maintained. Rex v. Willis, R. & M. 375. But where the wife of the prosecutor, and a man with whom she afterwards cohabited, jointly took money and goods belonging to the husband, the judges held that an indictment for larceny would lie against the man, although not against the wife; and that notwithstanding the wife's consent, the property must be considered as having been taken invito domino. Rex v. Tolfree, R. & M. 243. So a man cannot be guilty of larceny in taking his own goods, unless they be in the hands of a bailee, and the taking of them have the effect of charging the bailee. In Rex v. Wilkinson and Marsden, R. & R. 470, the case was thus: the prosecutors Marsh and Co., who were lightermen and agents, sent by one of their boats, under the care of their servant Wilkinson, thirty bales of nur vomica belonging to the prisoner Marsden, to a foreign ship lying in the river, for the purpose of exportation, having previously given the usual bond at the custom-house; nur vomica paid no duty on exportation, but a large duty if intended for home consumption; and Marsden, wishing to defraud government of the duty, by collusion with Wilkinson, had the nux vomica re-landed, taken out of the bales, cinders and rubbish substituted for it, and the bales then shipped on board the foreign vessel: four of the judges held that this was not larceny, because there was no intent to cheat or charge Marsh and Co., the intent being to cheat the crown; but seven judges held that it was larceny, because Marsh and Co. having given a bond to the custom-house, the fraud would have the effect of charging them, by rendering them liable to a suit upon their bond. So a joint-tenant of a personal chattel cannot be guilty of larceny in taking it out of the possession of his co-tenant; for the possession of one joint-tenant is the possession of all. But if he were to take it out of the possession of a person, with whom it was placed for safe custody, and the effect of taking it would be to charge the bailee, it would be otherwise. Phoebe Bramley, a member of a friendly society, entered the room of a person, with whom a box, containing the funds of the society, was deposited for safe custody, and took and carried away the box, with intent to appropriate the contents to her own use: the judges were clearly of opinion that this was larceny, the bailee being answerable to the society for the property. Rex v. Phœbe Bramley, R. & R. 478. A constructive taking is, where possession of the goods is obtained from the owner, by means of some trick or artifice. If by means of such trick or artifice, the owner part with the possession only, still meaning to retain the right of property, this will be such a taking as is necessary to constitute larceny; but if the owner part with, not only the possession of the goods, but the right of property in them also, the offence of the party obtaining them will then be, not larceny, but the offence of obtaining goods under false pretences. A few cases will be sufficient to illustrate this distinction. Davenport was indicted for larceny, in stealing two silver cream ewers from the prosecutor, a silversmith; he was formerly servant to a gentleman who dealt with the prosecutor; some time after he left this gentleman's service, he called at the prosecutor's shop, saying that his master (meaning the gentleman whose service he had left) wanted a silver cream ewer, desired the prosecutor to give it to him, and to put it down to his master's account; the pro. secutor gave him two ewers, in order that his master might select that which he liked best; the prisoner took both, sold them, and absconded; the prosecutor at the trial swore that he did not charge his customer with these cream ewers, nor did he intend to charge him with either, until he should have first ascertained which of them he would have chosen : it was objected for the prisoner, that this amounted merely to the obtaining of goods under false pretences, and not to larceny but Bayley, J., held, that as the prosecutor had parted with the possession only, and not the right of property, the offence was larceny; that if he had sent but one cream ewer, in execution of the pretended order, and had charged the customer with it, it would have been otherwise. Rex v. Davenport, coram Bayley, J., Newcastle Spring Assizes, 1826. In a case similarly circumstanced, but where the person in whose name the goods were obtained was not called as a witness, nor was there any evidence that she had not sent the prisoner for the goods, Patteson, J., held, that on that account the prisoner should be acquitted: for non constat, but that the prisoner had been sent for the goods, as she had stated, and had delivered them to the person who sent her. Rex v. Ann Savage, 5 Car. & P. 143. Where upon an indictment for larceny, it appeared that the prisoner ordered the articles mentioned in the indictment, of a tradesman, and desired them to be sent at a certain hour to the coach office, and he should pay for them; the tradesman took the goods, packed in a case, to the coach office, and there met the prisoner, who pretended that a friend from whom he was to receive money had not come; he said he was to receive 2001. from his friend, at Tom's coffee-house, at seven o'clock that evening, and appointed with the tradesman to meet him there at that time; and it was agreed that in the meantime the goods should be left with the book-keeper at the coach office, the prisoner saying that he was going to Manchester the next day by the coach, and would take the package with him; the prisoner however called in about two hours afterwards, told the book-keeper he had changed his mind, and took away the goods; the tradesman called in the evening at the coffee-house, but the prisoner was not there; but he was afterwards found at a house on the other side of the river, with the case unpacked and the goods all about the room; the prosecutor swore that he never intended to part with the goods until the money was paid; and the jury were of opinion that when the prisoner first called on the tradesman he had no intention of buying and paying for the goods, but merely gave the order for the purpose of getting the goods out of the possession of the tradesman, and converting them to his own use; the prisoner being convicted, the judges held the offence to be larceny. Rex v. John Campbell, R. & M. 179. So, where it appeared that a servant of the prosecutor being sent to a fair with some oxen, to sell them for ready money, the prisoner bargained with him for them, and desired him to go to the inn and he would pay him for them; he went to the inn, but the prisoner never came; and upon his going back to the fair, he found that the oxen were gone; the prisoner had taken them, and sold some of them ; the servant said that he would not have delivered them until the money was paid the jury being of opinion that the prisoner never meant to have paid for the oxen, found him guilty; and the judges afterwards held the conviction to be right. Rex v. Gilbert, R. & M. 185. And where the prisoner, under pretence of buying four casks of bristles, obtained a delivery order to a wharfinger for them, undertaking : to pay cash for them before they should be taken out of the cart at his door; but instead of taking them to his house or shop, he had them taken to a warehouse in a different direction, and endeavoured to sell them the jury having found that the prisoner had no real intention of buying the goods, but merely to get them by fraud froin the owner, the judge held this to be larceny. Rex v. Pratt, R. & M. 250. On the other hand, where, upon an indictment for stealing in the dwelling-house of a pawnbroker, a diamond broach and other articles, it appeared that the prisoner called at the shop of the pawnbroker, with duplicates of the broach, &c. mentioned in the indictment, which he had before then pawned there for 341., and desired to redeem them; he at the same time showed the pawnbroker's shopman a parcel of loose diamonds which he wished to pawn, and the shopman agreed to lend 1601. upon them; he sealed the parcel of diamonds in the shopman's presence, and gave him what he believed at that time to be the same parcel: the shopman then gave him the broach, &c. mentioned in the indictment, and the balance of the 160l., after deducting the 341. for which the broach, &c. were pledged and interest; but the parcel upon being afterwards opened, was found to contain some coloured stones of little value; the shopman swore that he was authorized by his master to receive money for pledges, and to lend money on them; and that when he delivered the articles in question, he parted with them entirely, believing he had received a full equivalent: this case being referred to the judges, they held that it was not larceny, because the shopman parted with the property and ownership, and not merely with the possession. Rex v. Jackson, R. & M. 119. Robson and others, in pursuance of a preconcerted design, induced the prosecutor, Younger, to deposit some bank notes with one of them, as stakeholder, upon a pretended bet; the stakeholder afterwards, upon pretence that his confederate had won the wager, handed the notes over to him: the judges held this to be larceny; because at the time the prisoners obtained the notes from Younger, he parted with the possession only, and not the property; the property was only to pass eventually, if the other party really won the wager. Rex v. Robson, Gill, Fewster, and Nicholson, R. & R. 413. And in another case, where three persons in a public-house, acting in concert, induced the prosecutor to lodge 100l. in the hands of one of them, upon a pretended bet that he could not produce so much money; the person with whom it was lodged, counted it, and upon his reporting that there was 100%. in it, the bet was admitted to be lost; he then handed the 100. over to one of the others, and upon some pretence induced the prosecutor to go outside the public-house with him, and whilst they were absent the other two absconded with the money: the judges held this to be larceny, and that all three were equally guilty. Rex v. Standley, Jones, and Webster, R. & R. 305. On the other hand, where, upon a pretended wager of this kind, the prosecutor paid his money, on the wager being determined against him, imagining it to be fairly won; the judges held it not to be larceny, because the prosecutor had parted with, not merely the possession of his money, but the property in it also. Rex v. Nicholson, 2 East, P. C. 669. So, where the prosecutor, a hatter, sold a hat to one of his customers, and the prisoner, knowing the circumstance, sent a messenger to the prosecutor for the hat, in the name of the customer, and obtained it: the judges held this not to be larceny, but obtaining goods under a false pretence merely. Rex v. Phineas Adams, R. & R. 225. Upon an indictment for stealing three chests of tea, the property of S. Tanner and his partners, it appeared that Tanner & Co. were carriers from London to Tewkesbury; the prisoner Isaiah John Longstreeth, calling himself Langstan, came to Tanner's office at Tewkesbury, and inquired if there were any teas for him; the porter informed him that there were three chests directed to I. Creighton, whom he did not know; the prisoner said they were for him, and that the party who sent them had spelt his name wrong by mistake; he paid the carriage and porterage, the three chests were delivered to him, and he afterwards removed and concealed them; the teas were not his, but belonged to a person named I. Creighton, to whom they were directed: the prisoner being found guilty, it was referred to the judges to say whether this was a larceny; and they held that it was; because the ownership in the goods was not parted with, the carrier's servant having no authority to deliver them to the prisoner. Rex v. Isaiah John Longstreeth, R. & M. 137. So, where the prisoner went to an inn at Sodbury on the fair day, and desired the ostler to bring out his horse, and upon the ostler saying he did not know which was his, he went into the stable with him, and pointing to a mare said it was his, and the ostler brought it out; he then attempted to mount her, but the mare being frightened, he could not effect it; he then desired the ostler to lead the mare out of the yard, which was done accordingly, but before he could mount her some person who knew the mare came up, and he was detected and secured: Garrow, B., held this to be larceny. Rex v. Pitman, 2 Car & P. 423. Where the prisoner went to a shop and asked for change of half-a-crown, and the person attending gave him two shillings and six penny-pieces; he then held out the half-crown, and the other just took hold of it by the edge, but never actually got it into his custody; the prisoner immediately |