Distinction between larceny and breach of tiust. M. B.'s employ. On the faith of this book so exhibited, she got credit for goods to the amount of 51. which she punctually paid; then of 107. which she also punctually discharged at the time agreed upon: then she got credit for 201. but was heard of no more, till several months after, when it was discovered that she had departed from her residence privately, and had defrauded other tradesmen in a similar manner, at several different residences in succession, in different parts of the town. It was also ascertained that no such person had ever kept an account at the house of M. B. and that she had sold the particular candles in question at an inferior price as soon as she received them. She was committed for the fraud, and indicted for a misde meanor. At her trial it was objected that this was a felony, or nothing; that though it was true she did not pay the demand at the time she engaged to do, non constat that she did not, and does not even yet, intend to pay it; and that as to her change of residence, that might be matter of necessity, indicative of no fraudulent intention; that if fraudulent intention must be presumed, it took place at the time of her giving the order for the goods; that she did it animo furandi; and that the mode of proceeding to punish it had been mistaken, for that the offence, if any, was a felony, not a misdemeanor. The objection, however, was overruled, and the prisoner convicted. (d) On the second class of cases, where there has been an original delivery or bailment of goods, the offence of appropriating them will be larceny or not, as the question may be answered-whether the bailment was determined before the act charged as felonious taking? It is clear that, unless the bailment or lawful custody be first determined, the appropriation of goods is not, at common law, larcenous. Thus, if a carrier receives goods to convey, a tailor cloth to make clothes with, or a friend property to keep secure, and, while the trust continues, they convert them to their own use, they will not be guilty of (d) Perhaps, at least, a more plausible defence to this accusation would have been, that the false pretence used to gain the credit, viz. the passage-book, and to the exhibition of which the credit is actually stated to have been given, only could have been referable to the first delivery of goods to the amount of 51; for, at the time of delivery of the last parcel of candles to the value of 20l. which forms the subject of this prosecution, the prisoner's credit was established on a different ground, and independent of the first transaction, viz. on her own punctuality in discharging her accounts with the prosecutor. felony: (e) but if the lawful possession be first determined, as if its term or object has ceased, or if it has been determined by the tortious acts of the bailee, a subsequent taking will be larcenous. Thus, if a carrier take a parcel to the place appointed, and deliver it or lay it down, and he afterwards remove it with intent to steal, such removal will be felony. (f) And it seems clear that if a carrier, during the conveyance of goods, open the package in which they are contained, and take out part of them, he will be guilty of larceny. (g) A doubt seems to have been once entertained whether a bailee so opening a package, and taking out all the contents, was thus guilty; but in a recent case this singular doubt was removed; (h) and it may now be taken as law, that wherever a carrier or other bailee, without authority express or implied, breaks a parcel committed to his care, and takes and carries away the whole or a part of the contents, with intent to steal, he is guilty of larceny. The breaking is, in these cases, the essential ground of distinction; for it was held, in a modern case, where the master and owner of a vessel had disposed of parcels committed to him for conveyance, that he was not guilty of larceny, because it did not appear that he took the goods out of their packages. (i) of another. 5. The goods must be the property of another.-A man The goods must may, in one case, be guilty of stealing goods which are, be the property in some sense, his own, when, having bailed them to another person, he takes them fraudulently in order to charge the bailee for them in an action, or takes them by force in order to charge the hundred. (j) But if the goods have been taken from the owner, and wrongfully mingled with others so that they cannot be separated, as if a garment be taken and embroidered, or wood be sawed out into planks, the owner may retake the altered article without committing any offence, however it may be increased in value. (k) Joint tenants, or tenants in common, of a chattel, as partners in trade, cannot commit larceny by abstracting the goods which belong to both, because they have a common interest in them; nor can a wife be guilty of Felonious intent necessary to larceny. larceny in abstracting the goods of the husband. (1) But it is not necessary that the owner of goods should be known in order to sustain an indictment if there are circumstances which clearly prove them to have been stolen. (m) The personal estate of a dead man is the subject of larceny; for where he has appointed executors they vest in them on his death before probate; where the deceased is intestate, they vest in the ordinary till administration granted, and then in the administrator. (n) Even the shroud of a man buried is the property of another, for it belongs in law to those who defrayed the expenses of his funeral. (o) 6. The goods must be taken with a felonious intent to steal them. A taking with the bare intent to use the goods, though unlawfully, and to return them, will be only a trespass, if the original intention to return the goods be clear; though if they were ever taken with intent to steal, no restitution will alter the legal aspect of the offence; and, in all such cases, the original intention is a question for the jury. (p) Thus, where two persons took two horses from a stable, rode them to a place at a distance, and there left them, proceeding on foot, and the jury found that they took the horses merely to forward them on their journey and not to make any further use of them, this was holden a trespass only, and not a larceny; as, though the horses were taken away against the consent of the owner, the intent to steal was negatived by the finding. (q) But it is enough if the taking be lucri causâ, for the sake of gain, though that gain may result collaterally from the possession of the chattel. Thus, it has been holden, that a servant clandestinely taking his master's corn to give to his master's horses, and thereby diminishing his own labour, is guilty of larceny. (r) In one case, where the prisoner took and killed a horse, not for the purpose of deriving any pecuniary advantage from it, but to prevent the horse from being identified as previously stolen by another, this was holden by six judges against five to be larceny. (s) But clandestinely removing articles belonging to a woman, in order that she may go to seek them in a particular place (1) 1 Hale, 513. (n) 1 Hale, 514. (m) 2 Hale, 290. (P) The King v. Phillipps and Strong, 2 East. P. C. c. 16. s. 98. where the taker may have sexual intercourse with her, has been held not a felonious taking. (t) And where a person having obtained the key of an uninhabited house belonging to a gentleman to whom he was domestic servant, entered it, and threw several articles of furniture into a river which ran near, in which they were destroyed, and the jury found that this was done in revenge for a supposed affront, and with no intention of converting the goods to his own use; the prisoner being tried before Mr. Baron Hotham for larceny, was, under his direction, acquitted. (u) And even though there be a conversion of the goods, with a fraudulent and wrongful purpose, yet, if the animus furandi was wanting when they were originally acquired, the conversion may not amount to larceny. Thus, during a fire, the prisoner, with other neighbours of the owner of the house which was burning, took several articles in his presence with the alleged design of saving them from the flames; the prisoner, on being asked for the articles she had taken, denied that she had them, but they were found concealed in her possession; the jury found specially that she did not take the goods with a felonious intention, but with a laudable. design, and that the design of fraud suggested itself to her mind afterwards; on which the judges were of opinion, that as the jury had negatived the animus furandi at the time of the taking, it was not a felonious taking, and the prisoner was discharged. (v) A bona fide claim of right will rebut the presumption of Claim of right. felonious intention, though it may turn out to be groundless. Thus, if the lord of a manor claiming a right of waif and estray, seize a horse as such estray, without any concealment or mark of fraud, this will be no felony. (w) But the claim must have a colour of right, and not be set up against known law, as a claim to glean on the lands of another against his will, (x) or to plunder a wreck; (y) for these will not be excused merely because custom has appeared to sanction such usages. In general, however, a wrongful taking of property against the will of the owner must be considered as felonious, unless shewn by circumstances to be otherwise. (t) The King v. Dickinson, Russ. and Ry. 420. (x) Steel v. Houghton, 1 Hen. Bla. 51, 63. Indictment for larceny. Points relating Description of goods stolen. But the question of intent is to be gathered from circumstances, on which the jury are to decide; of which the most important is the presence or absence of concealment at the time of, and subsequent to, the taking. The question is always for the jury; and if they entertain any doubt whether the taking were with intent to steal, they ought to acquit the prisoner. The following is the form of an indictment for larceny at common law : Berkshire, The jurors for our Lord the King upon their oath to wit present, that A. B. late of the parish of Sonning, in the county of Berkshire, labourer, on the first day of November, in the ninth year of the reign of our Sovereign Lord George_the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, with force and arms, at the parish aforesaid, in the county aforesaid, one coat of the value of ten shillings, one waistcoat of the value of five shillings, and one pair of shoes of the value of one shilling, of the goods and chattels of one C. D. then and there found and being, feloniously did steal, take, and carry away, against the peace of our said Lord the King, his crown and dignity. Besides the points relating to the venue [ante, p. 97], to the name and addition of the party accused [ante, p. 107], and to the statement of time and place [ante, p. 110], the following points are important in framing indictments for larceny. 1. The description of the goods stolen.-This must be accurate as to the kind of goods; for if the prisoner be charged with stealing one thing, and be proved to have stolen another, he must be acquitted; but it need not be accurate as to the number; and if he stole any one of the articles enumerated, or any part of the quantity alleged, the charge will be sustained. It must appear on the face of the indictment that the thing taken is one in respect of which larceny may be committed; and, therefore, if it charge stealing a pheasant, without stating the bird to be tame or confined, it will be bad, although the pheasant taken should in proof be shewn to be so reclaimed as to be the subject of a charge of larceny if properly laid. (x) An indictment for stealing a dead animal must state that it was dead, or the intendment will be that it is alive, and the charge will fail, on proof of stealing, not the living animal, but the carcass. (a) In an indictment for stealing (z) The King v. Rough, 2 East, P. C. c. 16. s. 41. |