Goods examined by one pretending to become a purchaser, and set apart from the rest, but not actually bargained for or delivered, were ried off by him while the owner the taker had the possession of them delivered to him, no trespass, and therefore no larceny, can be committed by their conversion. 2 Russ. 118. Sharpless and Greatrix were convicted of stealing six pair of silk stockings of Owen Hudson; on which a case was reserved for the consideration of the judges; which stated that Greatrix, in the character of servant to Sharpless, had left a note at Hudson's shop, who was a hosier, desiring that he would send an assortment of silk stockings to his master's lodgings, at the Red Lamp, in Queen Square. The hosier having taken them according to direction, Greatrix opened the door to him, and introduced him into a parlour, where Sharpless was sitting in a dressing-gown, his hair just dressed, and an unusual quantity of powder over his face. Having looked at some of the stockings, and asked the price, which he was told was 14s. a pair, he desired Mr. Hudson to fetch some silk pieces for breeches, and some black silk stockings with French clocks. Hudson hung the six pair of stockings, which Sharpless had looked out, on the back of the chair, and went home for the the property not other goods; but no positive agreement had taken place respecting the stockings. During Hudson's absence, the prisoners decamped with the goods, which were proved to have been afterwards pawned afterwards car was sent away on pretence of getting more: held felony; being trans ferred. by one of them. The judges were of opinion that the conviction was right; for the whole of the prisoners' conduct manifested a preconceived design to obtain a tortious possession of the property: and the verdict of the jury imported, that in their belief the evil intention preceded the possession of the goods by them. But that, even independent of that, there did not appear a sufficient delivery to change the property. R. v. Sharpless & Greatrix, O. B. May, 1772, cor. Gould J. 2 East's P. C. 675. 1 Leach, 92. Prisoner was indicted for stealing two cream jugs, the property of A., a silversmith: it appeared that prisoner had been the servant of a customer of A.'s, but was so no longer; he came, however, to A., as if he had been still in the service, saying that his master wanted a cream jug, and desired it might be put down to his account; A. sent two jugs, that the master might take which he liked best, and the prisoner made away with both; and per Bayley J., as A. had parted with the possession only, and not with the right of property, it was larceny; but if he had sent one jug only in execution of the pretended order, it would have been otherwise. Cor. Bayley J. Sp. Ass. Newcastle, 1826, R. v. Davenport, Archbold's Peel's Acts, &c. p. 4. Where the owner of goods sent them by his servant to be carried to the house of A., and the prisoner, meeting him in the street, fraudulently procured the delivery of them to himself, by pretending to be A., it was holden to be larceny. Wilkins's case, O. B. 1789, 1 Leach, 520. 2 East's P. C. 673. Obtaining possession from a person who has the charge of goods, by pretending to be the servant of a person who has bought them, is felony. Robert Hench was indicted for stealing a chest and 59 pounds' weight of tea, which in one count of the indictment were stated as the property of James Layton and William James Thompson ; and in another count, as the property of the East India Company. The facts were, that Messrs. Layton & Co., who were tea brokers, them. had purchased the chest of tea in question, No. 7100, at the East had purchased India House, but had not taken it away, when the prisoner, who was no way employed by them, went thither, and going up to the place where the request papers were kept, selected one of them, and then proceeded with the paper in his hand, as if to look for a chest of tea corresponding with the number on the paper. The servant in the India House, who had the care of the request papers, seeing him so engaged, went up to him, took the paper which was in his hand, and seeing the number 7100 upon it, pointed to a chest with a corresponding number, and said that was the chest he wanted; and then returned the paper to him, in order that he might go to the permit office, from whence he shortly afterwards returned with a permit to the India House, where the same servant who had the care of the request papers received the permit from him, and asked him whose partner he was? and upon his answering "Noton's," returned the permit to him again, and entered the name of Noton in the book. The prisoner then took away the chest of tea. Upon this evidence, the jury found the prisoner guilty; when an objection was taken by his counsel, that as the possession of the property was obtained by a regular request note and permit, the offence could only be considered as a misdemeanor; and the court reserved the point for the consideration of the judges, who (Hil. T. 1811) were clearly of opinion that the offence amounted to felony. Hench's case, O. B. Oct. 1810, cor. Sir J. Sylvester, Bart. Recorder, 2 Russ. 120. C. C. R. 163. R. v. Aickle, O. B. 1784, 2 East's P. C. 675. 1 Leach, 294. Bill delivered 2 Russ. 120. The prisoner agreed with the prosecutor to dis- to prisoner to count a bill of exchange for him, and the bill was delivered into discount, and prisoner de. the prisoner's hands. The prisoner then said, that if the prose- camping with cutor would come to his lodgings, he would give him the cash. it. The prosecutor did not go himself, but sent his clerk, whom he desired not to lose sight of the prisoner till he had got the money. The prisoner contrived to get away from the clerk with the bill, and without paying the money. This was holden to be larceny; the jury finding a preconcerted design by the prisoner to get the bill into his possession with intent to steal it. It should be observed, that in this case the prosecutor never gave the prisoner credit for the property of the bill, and therefore did not part with the legal possession. Where money or other property is parted with for the performance of a certain engagement, and the party, instead of complying with such engagement, converts the same to his own use, he is guilty of felony. R. v. Oliver. The prisoner was indicted for stealing 351., the property of William Smith. The prosecutor had entrusted the prisoner with notes to the amount of 35/., to procure him gold in lieu thereof; but having got possession of the notes, he went away with them, and did not return with the gold as he promised to do. Wood B. held, that the prosecutor having parted with his notes upon the faith of his having gold and silver in return, and the prisoner not having complied with the trust reposed in him, he was guilty of felony, if the jury believed that the intention of the prisoner was to take away the notes, and never to return with the gold. The learned judge further said, that a parting with the Prisoner mak ing away with notes delivered change for to him to ex gold. Money taken under pretence of being lost at cards. Several present and acting in concert, all guilty of the larceny. Money taken which was pro duced on account of a bet. By way of pledge or security. Pretending to find a jewel, in which the prose cutor as present at the time was to share, and inducing him to take charge of it, and to depofinder his watch property in goods could only be effected by contract, which required the assent of two minds, but that in this case there was not the assent of the mind, either of the prosecutor or of the prisoner; the prosecutor only meaning to part with his notes on the faith of having the gold in return, and the prisoner never meaning to barter, but to steal. Northumb. Sum. Ass. 1811, cor. Wood B. MS. S. C. cited by Gurney arguendo, Walsh's case, 4 Taunt. 274. 2 Leach, 1072. So where it appeared that the prisoners decoyed the prosecutor into a public house, and there introduced the play of cutting cards, and that one of them prevailed upon the prosecutor (who did not play on his own account) to cut the cards for him, and then, under pretence that the prosecutor had cut the cards for himself and had lost, another of them swept his money off the table and went away with it: it was considered to be one of those cases which should be left to the jury to determine quo animo the money was obtained, and which would be felony, in case they should find that the money was obtained upon a preconcerted plan to steal it. R. v. Horner and others, 1 Leach, 270. Cald. 295. If several persons act in concert to steal a man's goods, and he is induced by fraud to trust one of them in presence of the others with the possession, and another of them entices him away, so that the man who has his goods may carry them off, all are guilty of felony. The receipt by one is a felonious taking by all. Standley, Jones, and Webster conspired to get some money from M'Laughlin. They pretended he could not produce 100l.: he produced that sum in notes: J. took them to count; handed them to S., and S. and W. pretended to gamble for them. J. beckoned M'L. out of the room, and S. and W. immediately decamped with the money; and all three afterwards shared it. On case reserved, the judges were unanimous that this was larceny in all three. R. v. Standley and others, Warwick Lent Ass. 1816, cor. N. G. Clarke, Esq. K. C. and before the Judges, E. T. 1816, C. C. R. 305. If credit be given for property for ever so short a time, no felony can be committed in converting it. 2 East's P. C. 677, 678. So, where the delivery is by way of pledge or security, the property in the thing pledged remains in the owner, and therefore larceny may be committed of it, if such delivery were obtained fraudulently and with intent to steal. John Patch was indicted for stealing a silver watch, gold seal, &c. and 7s., the property of J. Bumstead. The prisoner and two others joined Bumstead in a street in London, and after walking a little way with him, one of them stooped down and picked up a purse, which contained a ring, and a receipt for 1477, purporting to be the receipt of a jeweller for a rich brilliant diamond ring. The prisoner proposed that they should go into a public house, which they accordingly did, to consider in what manner the prize should be divided amongst them. After various proposals, the prisoner at length asked the prosecutor if it would be agreeable to him to take the ring into his own possession, and to deposit his money and watch, which he had before interrogated him about, as a security, to return it upon receiving his portion of its value. The prosecutor assented, and signed a written agreement, dictated this done with by the prisoner, that when the prisoner or either of the two other sit with the &c. until the latter should redeem the jewel by paying a certain sum of money; and men returned the watch and money and 70%., he would re-deliver intent to steal to them the purse and the ring. The prosecutor accordingly laid the watch, &c.: the watch and money mentioned in the indictment on the table, held larceny. and received the ring. The prisoner beckoned the prosecutor out of the room, upon pretence of speaking to him in private, and in the mean time the other two men went off with the property. Their abrupt departure alarmed the prosecutor, but the prisoner told him not to be uneasy, for he knew the two men very well, and would take care that he should have his watch and money again; and when the prisoner was apprehended he wanted to make it up. The ring was valued at 10s. It was objected that this amounted only to a fraud. But the court, upon the authority of Pear's case (infra) referred it to the jury to consider, whether the whole transaction were not a preconcerted scheme, feloniously to obtain the prosecutor's property? And Gould J., who tried the prisoner, left it to the jury, whether the prisoner and the other two men were not all in concert together to procure by such a pretext any man's property whom they might meet, and to embezzle it; which in plain words was to steal it? The jury found the prisoner guilty, and he was sent to the Thames for three years. Patch's case, O. B. Feb. 1782, 2 East's P. C. 678. 1 Leach, 238. The principle of this case has been subsequently recognised in the cases of Rex v. Humphrey Moore, 1 Leach, 314. 2 East's P. C. 679. reserved by Mr. Serjeant Adair, recorder, at the O. B. Apr. Sess. 1784, and Rex v. John Watson, 2 Leach, 640. 2 East's P. C. 680, reserved by Perryn B. at the O. B. December Sess. 1794, for the opinion of the judges; and both prisoners were sentenced to transportation for seven years. If there be a plan to cheat a man of his procolour of a bet, perty under and he parts with the possession only, to deposit as a stake to one of the confederates, the taking by such confederate is felo R. v. Robson, Gill, Fewster, and Nicholson, E. T. 1820. The prisoners were convicted before Bayley J. at the Lent assizes at Newcastle-upon-Tyne, 1820, of stealing, from the person of John Younger, twenty notes for one guinea each. The facts were as follows: R., by pretending to find a sixpence in a fair, decoyed Y. to a public-house; they were there joined by the three other prisoners. After a little time, G., who pretended to be flush of money, began to play with F. at guessing at a halfpenny which F. hid under a pewter pot: G. was to guess three times right out of four. After losing twice, G. offered a wager of a pound that none of them could produce 101. F. took the bet, and advised Y. to do the same: he had not money enough about him, but went and borrowed 20 guinea notes of a friend; and then it was con- nious. ceded he had won. G. then offered F. to bet him 100l., or 50l., or any other sum, that he guessed the halfpenny right three times out of four; and F. betted him 40l. G. guessed wrong once out of the four times, and then went out. In his absence, F. advised Y. to go halves in the bet, as he was sure to win; and after some persuasion he consented; and on G.'s return he handed his 20 notes to G., who passed them on to R., who was to be stakeholder. G. then pretended to guess the remaining three times, and being right in each, R. gave him the stake, and he went away. Bayley J. told the jury, that if they thought, when G. took the notes from Y. and passed them to R., there was a plan and concert between the prisoners that Y. should never have his notes back, but that they should keep them for themselves, under the Taking goods by delivery of owner, possession being obtained with a felonious intent. Hiring a horse on pretence of taking a journey, but in truth with intent to steal it, and evidencing such felonious intent by immediately selling the horse as soon as the party obtained false colour and pretence that G. won his bet, he thought it a felonious taking, and a felonious taking by all. The jury were of that opinion; and on case reserved, (East. T. 1820,) the judges (ten) held the conviction right; because at the time of the taking, the prosecutor parted with the possession only. C. C. R. 413. N. B. R.v. Nicholson and others, 2 East's P. C. 669. antè, 433. was referred to: but that case is distinguishable from the above, the property having been parted with by the prosecutor: here the prosecutor parted with the possession only, and not the property. It is peculiarly the province of the jury to determine with what intent any act is done; and therefore, though in general he who has a possession of any thing on delivery by the owner cannot commit felony thereof; yet that must be understood, first, where the possession is absolutely changed by the delivery, which has before been considered; and next, which is the present object of inquiry, whether such possession is not obtained by fraud, and with a felonious intent. For if, under all the circumstances of the case, it be found that a party has taken goods from the owner, though by his delivery, with an intent to steal them, such taking amounts to felony. 2 East's P. C. 685. This principle is illustrated by the following cases. John Pear was indicted for stealing a black mare, the property of Samuel Finch. On the 2d July 1779, the prisoner hired the mare of Finch, who lived in London, for that day, in order to go to Sutton in Surrey, and told him that he should return at eight o'clock the same evening. Finch, before he let the prisoner the mare, inquired of him where he lived, and whether he were a housekeeper? to which he answered, that he lived at No. 25. in King-street, and was only a lodger. The prisoner not returning, as he had promised, the prosecutor went the next day to inquire for him according to the direction he had given; but no such person was to be found. It turned out that the prisoner had, in the possession of it, afternoon of the same 2d of July, sold the mare in Smithfield. In is larceny. summing up this evidence to the jury, Mr. Justice Ashhurst, who tried the prisoner, told them, that if they were of opinion that the prisoner hired the mare with an intent of taking the journey mentioned, and afterwards changed that intention, then, as she was sold whilst the privity of contract subsisted, they ought to acquit the prisoner. But if they were of opinion that the journey was a mere pretence to get the mare into his possession, and that he hired her with an intention of stealing her, they ought to find him guilty; and he would save the point for the opinion of the judges. The jury found the prisoner guilty. This case was very solemnly discussed at Ld. C.J. De Grey's house on 4th Feb. 1780, and on the 22d of the same month, Mr. B. Perryn delivered the opinion of the judges at the O. B. at considerable length; a very copious and accurate report of which is given by Mr. East, in the 2d vol. of his Treatise of the P. C., p. 685. A majority of the judges held, that the obtaining possession of the mare, and afterwards disposing of her in the manner stated, was, in the construction of the law, such a taking as would have made the prisoner liable to an action of trespass at the suit of the owner, if he had not intended to steal her; for she was delivered to the prisoner for a special purpose only, viz., to go to Sutton, which he never intended to do, but immediately sold her: that in this light the case would be similar to what was laid down by Littleton, §71., who |