So if a hackney coachman convert to his own use a parcel left by a passenger in his coach by mistake, it is felony if he knows the owner, or if he took him up or set him down at any particular place, where he might have inquired for him: R. v. Wynne, 2 East, P. C. 664; R. v. Sears, 1 Leach, 415.

So, in every case where the property is not, properly speaking, lost, but only mislaid, under circumstances which would enable the owner to know where to look for and find it, as where a purchaser at a stall of the defendant in a market left his purse on the stall, the person who fraudu lently appropriates property so mislaid is guilty of larceny: R. v. West, Dears, 402.

mark upon

the

And in every case in which there is any 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. Pope, 6 C. & P. 346; R. v. Mole, 1 C. & K. 417; R. v. Preston, 2 Den. 353.

Doing an act openly doth not make it the less a felony, in certain cases: 3 Burn, 223. So, where a person came into a seamstress's shop, and cheapened goods, and ran away with the goods out of the shop, openly, in her sight, this was adjudged to be a felony: Chiser's Case, T. Raym. 276.

Returning the goods will not purge the offence if the prisoner took them originally with the intent of depriving the owner of them, and of appropriating them to his own use. In R. v. Trebilcock, Dears. & B. 453, the jury found the prisoner guilty, but recommended him to mercy, believing that he intended immediately to return the property:" Held, that the conviction was right: the recommendation of the jury is no part of the verdict.

The felonious quality consists in the intention of the prisoner to defraud the owner, and to apply the thing stolen to his own benefit or use.

The intent need not be lucri causa: R. v. Morfit, R. & R. 307; R. v. Gruncell, 9 C. & P. 365; R. v. Handley, Car. & M. 547; R. v. Privett, 1 Den. 193; R. v. Jones, 1 Den. 188.

Possession of stolen property recently after its loss, if unexplained, is presumptive evidence that the party in possession stole it. Such presumption will, however, vary according to the nature of the property stolen, and whether it be or not likely to pass readily from hand to hand: R. v. Partridge, 7 C. & P. 551, Warb. Lead. Cas. 182.

Prisoner was found with dead fowls in his possession of which he could give no account, and was tracked to a fowl house where a number of fowls were kept, and on the floor of which were some feathers corresponding with the feathers of one found on the prisoner from the neck of which feathers had been removed. The fowl-house, which was closed over night, was found open in the morning. The spot where the prisoner was found was twelve hundred yards from the fowl-house, and the prosecutor, not knowing the number of fowls kept, could not swear that he had lost any: Held, that there was evidence to support a conviction for larceny: R. v. Mockford, 11 Cox, 16; see R. v. Dredge, Warb. Lead. Cas. 135.

On the first floor of a warehouse a large quantity of pepper was kept in bulk. The prisoner was met coming out of the lower room of the warehouse, where he had no business to be, having on him a quantity of pepper of the same kind as that in the room above. On being stopped he threw down the pepper and said, "I hope you will not be hard with me." From the large quantity in the warehouse it could not be proved that any pepper had been taken from the bulk. It was objected that, as there was no direct proof that any pepper had been stolen, the judge was bound to direct an acquittal, but the court of Criminal Appeal held that there was evidence to warrant a conviction: R. v. Burton, 6 Cox, 293.

To obtain money by the trick known as "ringing the changes" is larceny: R. v. Hollis, 15 Cox, 345.

A. was indicted for larceny under the following circumstances:-R., intending to lend A. a shilling, handed him a sovereign, believing it to be a shilling. A., when he received the sovereign, believed it to be a shilling, and did not know until subsequently that it was not a shilling. Immediately A. became aware that it was a sovereign, and although he knew that R. had not intended to part with the possession of a sovereign, but only with the possession of a shilling, and although he could easily have returned the sovereign to R., fraudulently appropriated it to his own use. Prisoner was convicted of larceny. Upon a case reserved, seven judges held the conviction right, and seven were of opinion that these facts did not constitute larceny: R. v. Ashwell, 16 Cox, 1, 16 Q. B. D. 190.

In R. v. Flowers, 16 Cox, 33, 16 Q. B. D. 643, held, that where money or goods have been innocently received a subsequent fraudulent appropriation will not render the receiver guilty of larceny, the above lastly cited case not being an authority to the contrary.

A declaration made by a prisoner tried on an indictment for larceny, before he was charged with the crime, in answer to a question asked him where he got the property, is evidence on his behalf.

On the trial of an indictment for larceny of a watch the prisoner's counsel called a witness, W., who stated that the prisoner was drinking at a public house on the evening when the alleged offence was committed, and had the watch with him; that W. went home with the prisoner, and they sat down in the house; that while they were sitting there the prisoner fell upon the floor and the watch fell out of his pocket, and W. picked it up and asked him where he got it. His answer to this question was rejected, The prisoner being convicted, it was held by the court, on a case reserved, that the evidence should have been

received, and the conviction was quashed: R. v. Ferguson, 3 Pugs. (N. B.) 612.

H. and W. were jointly indicted for stealing. H. was found guilty, but the jury could not agree as to W., and were discharged from giving a verdict as to him. Held, that the verdict warranted the conviction of H.: R. v. Hamilton and Walsh, 23 N. B. Rep. 540.

Evidence of a general deficiency in the books of a clerk not sufficient to support a charge of larceny: R. v. Glass, M. L. R. 7 Q. B. 405; see R. v. Wright, 7 Cox, 413. Now, evidence of a general deficiency would, it seems, support an indictment for theft, s. 305, post.

TITLE VI.

OFFENCES AGAINST RIGHTS OF PROPERTY AND RIGHTS ARISING OUT OF CONTRACTS, AND OFFENCES CONNECTED WITH TRADE.

PART XXIV.

WHAT THINGS CAN BE STOLEN.

303. Every inanimate thing whatever which is the property of any person, and which either is or may be made moveable, shall henceforth be capable of being stolen as soon as it becomes moveable, although it is made moveable in order to steal it : Provided, that nothing growing out of the earth of a value not exceeding twenty-five cents shall (except in the cases hereinafter provided) be deemed capable of being stolen.

Section 337, post, provides for the stealing of trees of a value not exceeding twenty-five cents.

By the above section, whatever remained of the common law rule as to fixtures, things growing, minerals, choses in action, is superseded. The reason why things growing under the value of twenty-five cents are excepted is the harshness of exposing every person to be treated as a thief who picked a flower in a garden or cut a stick from a hedge: 3 Stephen's Hist. 162.

"The rules that documents evidencing certain rights, and that land and things savouring of the realty' are not capable of being stolen, appear to us wholly indefensible. It is, no doubt, physically impossible to steal a legal right, or to carry away a field, but this affords no ground at all for the rule that it shall be legally impossible to commit theft upon documents which afford evidence of legal rights, or upon things which, though fastened to, growing out of, or forming part of the soil, are capable of being detached from it and carried away.

"These rules have been qualified by statutory exceptions so wide and intricate that they are practically abolished, but they still give form to a considerable part of the law of theft, and