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committitur." By Ld. Coke (3 Inst. 107.) it is defined, "a felonious and fraudulent taking and carrying away by any man or woman of the mere personal goods of another, neither from the person, nor by night, nor in the house of the owner." "It is of the essence of robbery or larceny that the goods be taken against the will of the owner." Fost. 123.

Larceny is a felonious and fraudulent taking and carrying away, by any person, of the mere personal goods of another: And has been well defined to be the wrongful taking of goods with intent to spoil the owner of them causa lucri. 1 Haw. c. 33. § 1.

The true meaning of larceny is, "The felonious taking the property of another without his consent, and against his will, with intent to convert it to the use of the taker." Per Grose J. in delivering the opinion of the judges in Hammond's case, O. B. May Sess. 1812, 2 Leach, 1089.

It appears, however, from the following cases, that a larceny may Lucri causa. be committed, not strictly falling under the above definition, and that lucri causa may perhaps be construed to mean "for any object or purpose which the person taking the property may have in view, though not falling within the ordinary acceptation of the word gain."

Taking away a

ing it for the

horse and kill

purpose of

stifling evid

The prisoner and another broke open a stable of prosecutor's, took out his horse, and led it along the road about a mile, till they came to an old coal-pit, into which they backed it, and thereby killed it; the object being, that the horse should not be forthcoming at the trial of one Howarth, who was under charge for ence. stealing it. The case being reserved, six of the judges held it not to be essential that the taking should be lucri causâ; they thought a taking fraudulently, with an intent wholly to deprive the owner of the property, sufficient: but some of the six learned judges thought, that in this case, the object of protecting Howarth by the destruction of the animal, might be deemed a benefit, or lucri causa: five judges thought the conviction wrong. R. v. Cabbage, C. C. R. 292.

In an old case, where the prisoner assaulted B. with a felonious intent, and searched his pockets for money, but finding none, pulled off the bridle of B.'s horse, and threw that and some bread, which B. had in pannels, about the highway, but did not take any thing from B., held to be no robbery; and semb., because the particular goods were not taken with a felonious intent. 2 East, P. C. c. 16. § 98. p. 662.

ter's corn,

Richard Morfit and Morris Conway were tried before Abbott J. Clandestinely at Maidstone Lent Assizes 1816, upon an indictment for feloni- taking a masously stealing two bushels of beans, value five shillings, the goods though to give of John Wimble. Upon the trial it was proved, that the prisoners the master's were servants in husbandry to Mr. Wimble, and had the care of horses, is larone of the teams; that Mr. Wimble's bailiff was in the habit of de- ceny; espelivering out to the prisoners, at stated periods, from a granary be- cially if by so longing to him, and of which his bailiff kept the key, such quan- the servant's feeding them tities of beans as Mr. Wimble thought fit to allow for the horses of labour is likely this team; the beans were to be split, and then given by the pri- to be diminishsoners to the horses; that the granary door was opened by means ed. of a false key procured for the purpose, which was afterwards found hid in the stable; and that about two bushels of beans were taken away on the day after an allowance had been delivered out

Felonious intent.

Claim of right.

Person taking his own goods

in order to charge the

bailee, or to sue the hundred.

Person taking goods wherein he has property.

as usual; and nearly that quantity of whole beans was found in a sack concealed under some chaff in a chaff-bin in the stable. The learned judge desired the jury to say, whether they thought both the prisoners were concerned in taking the beans from the granary, and also, whether they intended to give them to Mr. Wimble's horses. The jury answered both questions in the affirmative, and a verdict of guilty was taken, but judgment arrested until the next assizes, considerable doubts existing whether the above facts amounted to a larceny. A majority of the judges assembled, eight out of eleven, in E. T. following held the offence to be larceny, and that the purpose to which they intended to apply them did not vary the case: it was alleged, however, by some of the judges, that the additional beans would diminish the work of the men who had to look after the horses, so that the master not only lost his beans, or had them applied to the injury of his horses, but the men's labour was lessened, so that the lucri causâ, to give themselves ease, was an ingredient in the case. Rex v. Morfit and Conway, Maidstone Lent Ass. 1816, C. C. R. 307.

At the ensuing assizes Morfit was sentenced to be imprisoned one calendar month in the house of correction at Maidstone; and Conway was imprisoned one day in gaol, and then discharged.

Felony is always accompanied with an evil intention, and therefore shall not be imputed to a mere mistake or misanimadversion; as where persons break open a door in order to execute a warrant which will not justify such a proceeding; for in such case there is no felonious intention. 1 Haw. c. 25. § 3.

For it is the mind that makes the taking of another's goods to be felony, or a bare trespass only; but because the variety of circumstances is so great, and the complication thereof so mingled, that it is impossible to prescribe all the circumstances evidencing a felonious intent, or the contrary, the same must be left to the due and attentive consideration of the judge and jury, wherein the best rule is, in doubtful matters, rather to incline to acquittal than conviction. Only, in general, it may be observed, that the ordinary discovery of a felonious intent is, if the party do it secretly, or being charged with the goods deny it. 1 Hale, 509. See R. v. Dannelly and Vaughan, C. C. R. 310. post, p. 445.

And if goods be taken on claim of right or property in them, it will be no felony; at the same time, it is matter of evidence, whether they were bonâ fide so taken, or whether they were not taken from the person actually possessing them with a thievish and felonious intent. And, therefore, obtaining possession of goods by a fraudulent claim of right, or by a fraudulent pretence of law, and then running away with them, would be a felony. 1 Hale, 507. 1 Haw. c. 33. § 8. Farr's case, Kel. 43.

In one instance a man may be guilty of felony in taking his own goods, viz., where having bailed them to another person, he afterwards steals them from such person in order to charge him for them in an action, or robs the other person of them in order to charge the hundred. 1 Hale, 513. 2 East, P. C. c. 16. § 95. p.659.

But regularly, a man cannot commit felony of goods wherein he has a property: thus, if A. take away the trees of B. and cut them into boards, or if A. take the cloth of B. and make it into a doublet, B. may take the boards or the cloth, and it will not be felony. 1 Hale, 513.

been mixed

Ld. Hale says, if one man take another man's hay or corn, and Where his own mingle it with his own heap or stock; or take another man's cloth, property has and embroider it with silk or gold; such other person may retake the whole heap of corn, or cock of hay, or garment and embroidery also; and this retaking is no felony, nor so much as a trespass. 1 Hale, 513.

with that of others.

There can be no legal right to take corn by gleaning except by Practice of special custom in particular places; and it is said a prisoner has gleaning. been convicted of larceny for so taking it. 2 Russ. 99. It is, however, justly observed, that such taking will hardly amount to larceny, where they merely took openly the corn that was left after the removal of the crop, under a claim of right, illegal indeed, but not altogether without some colour, and where similar practices were allowed in the neighbourhood. 2 Russ. 100.

In general, where goods have been taken on a claim of right, if Bonâ fide claim there be any fair pretence of property or right in the prisoner, or of right. if it be brought into doubt at all, the court will direct an acquittal, as it is not fit that such disputes should be settled by means of a proceeding so highly penal. 2 East, P. C. c. 16. § 95. p. 659.

And it may be that the taking is no more than a trespass, and Trespass. the circumstances in such case must guide the judgment. As where a man takes another's goods openly before him or before other persons, otherwise than by apparent robbery, or, having possessed himself of them, avows the fact before he is questioned. 1 Hale, 509. 2 East, P. C. 661.

Philipps and Strong were indicted for stealing a mare and gelding of John Goulter. It appeared in evidence that the prisoners had gone to the stables of Goulter, who kept an inn at a place called Petty France, in the night of the 26th of February 1801, opened them, and taken out the horse and mare, the subject of the indictment, and rode on them to Lechlade, about 32 or 33 miles off, where they carried them to different inns, and left them in care of the ostlers, directing them to clean and feed them, and saying that they should return in three hours. In the course of the same day, the prisoners were taken at a distance of fourteen miles from Lechlade, walking towards Farringdon in Berkshire, in a direction from Lechlade. The jury being directed to consider, whether the prisoners, when they took the horse and mare, intended to make any farther use of them than to ride them, for the purpose of assisting them on their journey towards the place where they were going, and then to leave them to be recovered by the owner, or not, as it might turn out; and whether they intended to return to Lechlade and make any further use of them, found the prisoners guilty; but added, they were of opinion that the prisoners meant merely to ride them to Lechlade, and to leave them there; and that they had no intention to return for them, or to make any farther use of them. Upon this finding, at a conference, first in Easter, and afterwards in Trinity Term, 1801, the judges (dissentiente Grose J. et dubitante Lord Alvanley) held it to be only a trespass, and no felony for there was no intention in the prisoners to change the property, or to make it their own; but only to use it for a special purpose, i. e. to save their labour in travelling. The judge who dissented thought there was no intention to return the horses to the owner, but, for aught the prisoners concerned themselves, to deprive him of them. But the

The prisoners enter another's stable at night, horses and ride them thirty-two miles and leave them at an inn, and are after

and take out his

wards found pursuing their journey on foot. On a finding by the jury that the prisoners took the horses merely with intent to ride and afterwards leave them, and not to return or make any farther use of

them; held trespass and not larceny.

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rest agreed that it was a question for the jury; and that, if they had found the prisoners guilty generally upon this evidence, the verdict could not have been questioned. Philipps and Strong's case, Gloucester Sp. Ass. 1801, cor. Lawrence J. 2 East, P. C. c. 16. § 98. p. 662.

Where the prisoner took out of a house the bonnet of a girl with whom he had intrigued, and placed it in his hay-rick, in order to induce her to go there again, that he might meet her: held, not to be a felonious taking. R. v. Dickinson, C. C. R. 420.

However, in all these cases, the concurrent conduct of the person accused must be considered, for the purpose of determining whether or not the act done by him be felony.

But, nevertheless, doing it openly and avowedly doth not excuse from felony. As where a man came to Smithfield market to sell a horse, and a jockey coming thither to buy a horse, the owner delivered his horse to the jockey to ride up and down the market to try his paces, but instead of that the jockey rode away with the horse; this was adjudged felony. Kel. 82.

So where a person came into a sempstress's shop, and cheapened goods, and ran away with the goods out of the shop, openly, in her sight, this was adjudged to be felony. T. Raym. 276.

So where a man comes into a house by colour of a writ of execution, and carries away the goods; or sues out a replevin to get another man's horse, and then runs away with him; this is felony under colour of law. 2 Vent. 94. Kel. 83.

So where legal process of any other description is fraudulently made use of, for the purpose of stealing the property of another, it will be felony. 2 East, P. C. c. 16. § 96. p. 660. cit. 2 Russ. 130,

131.

It is laid down in the books, that if one lose his goods, and another find them, though he convert them, animo furandi, to his own use, yet it is no larceny; for the first taking was lawful. 3 Inst. 108. 1 Haw. c. 33. § 2. 2 Russ. 100.

And Lord Hale says, if A. finds the purse of B. in the high. way, and takes it, and carries it away, and hath all the circumstances that may prove it to be done animo furandi, as denying it or secreting it, yet it is not felony. 1 Hale, 506.

But the doctrine of a taking by finding must be admitted with great limitation, and must be understood to apply only where the finder really believes the goods to have been lost by the owner, and does not colour a felonious taking under such a pretence.

It will not avail, therefore, where a man's goods being in a place in which ordinarily and lawfully they are or may be placed, a person takes them animo furandi. 1 Hale, 506. See post, p. 417. Thus, if a man's horse be going upon a common where he has a right to put him, and another take the horse with intent to steal him, 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.

If A.'s sheep stray into B.'s flock, and B. drives it along with his flock, and by bare mistake shears it, this taking is not a felony ; but if he knew it to be another's, and marks it with his mark, this is an evidence of felony. 1 Hale, 507.

But even if the place where the goods are found is not one in

which ordinarily they would be deposited, circumstances may shew the taking to have been felonious. 1 Hale, 506.

A man hides a purse of money in his corn-mow; his servant finding it, took part of it. If, by circumstances, it can appear he knew his master laid it there, it is felony: but then the circumstances must be pregnant; otherwise it may be reasonably interpreted to be a bare finding, because the purse was deposited in so unusual a place. 2 East's P. C. 664. 2 Hale, 507.

Money hid in

an unusual

place.

But where a gentleman left a trunk in a hackney coach, and the Stealing box coachman took and converted it to his own use; held felony for left in a hackhe must have known where he took up the gentleman and his ney coach. trunk, and where he set him down; and therefore he ought to have restored it to him. Lamb's case, O. B. 1694, 2 East's P. C.

664.

So also, in the case of Wm. Wynne, at the O. B. in April Sess. Ditto. 1786, 1 Leach, 413. 2 East's P. C. 664. 2 Russ. 101. The prisoner, who was a hackney coachman, had taken up the prosecutor, with several packages, at the Adelphi, and set him down in Orchard Street, where the prisoner and a servant took all the things out of the coach except one corded box, which remained under one of the seats, and contained several articles; for the stealing of which the prisoner was indicted. The prisoner, having received his fare, drove off; soon after which the box was missed, and all possible means were used that day to discover it, but without effect. In a few days, however, the prisoner was traced and taken, and the box found at a Jew's, whither it had been carried by the prisoner uncorded, the hasps forced off, and part of the goods only in it; several papers were missing, and among them two bonds, mentioned in the indictment. Eyre B. observed to the jury, that as the prisoner had not originally taken possession of the property himself, but had it thrown upon him by the negligence of the prosecutor, in leaving the box behind him in the coach, no felonious intention could be supposed to exist in the mind of the defendant at the moment the property was first acquired; and although the subsequent circumstance of keeping it until it was advertised was a breach of moral duty, it could not of itself be legally considered as a criminal conversion. But if from the evidence the jury were satisfied in their consciences, that he had opened the box, not merely from curiosity, but with an intention to embezzle any part of its contents, and that he had actually taken the goods, it would become a matter of legal consideration whether it was felony. The jury found the prisoner guilty; and, in Easter term, 1786, a majority of the judges held the conviction proper; and in July session following, he received sentence of transportation for seven years.

At O. B. Jan. Sess. 1789, John Sears was indicted before Ash- Parcel left in hurst J. for stealing a parcel of calico, &c. the property of Sarah hackney coach, Dixon. The prosecutrix hired the prisoner, who was a hackney and stolen. coachman, to drive her from her house in Manchester Buildings to a linen-draper's in Oxford Street, where she purchased the articles named in the indictment, which were tied up in a parcel, and put into the coach. The prisoner drove back to Manchester Buildings, and the prosecutrix, on getting out of the coach, ordered him to give the parcel to her servant, but he neglected so to do. The things were advertised, and a reward offered to any person

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