the finding the indictment, or exhibiting the information, or on an impossible day, or on a day that never happened. The same observation that was made as to a bad venue being taken advantage of, on demurrer, applies here also.

As to the property, the subject of the offence.-The goods must be described with sufficient certainty, and proved as laid, in order that it may appear upon the face of the indictment, that the thing taken is such, whereof larceny may be committed, 2 E. P. C. 777; and also, that the court may see what judg. ment to pass on the whole of the indictment. And merely charging a prisoner with stealing the "goods and chattels" of another, is not sufficient: id. A conviction of a prisoner for stealing "ten pounds in monies numbered," was held bad, for want of sufficient certainty as to the species of money: R. v. Fry, R. & R. 482. An indictment for stealing a certain note" is too general a description, and the addition of the words, "commonly called a bank note," was held not to aid such a description: R. v. Craven, R. & R. 14. So, a description of the instrument as a "bank post bill," was held insufficient: R. v. Chard, R. & R. 488. But in an indictment for stealing writings relating to real estates, it is, by the 23rd sect. of 7 & 8 Geo 4, c. 29,made sufficient to allege the thing stolen to be evidence of the title, or part of the title, of some one having a present legal and equitable interest, and to mention such real estate, or some part thereof. indictment for stealing "six handkerchiefs," the property was held to be rightly described, although they were all in one piece and not severed, but only distinguished from each other by a line of white cotton: R. v. Nibbs, R. & M. 25. In evidence it was stated, that the

In an

property stolen had been paid for, not by the piece, but by the number of handkerchiefs. In an indictment for stealing animals, which at the time were dead, that fact must be stated in the indictment; for, as without such statement, the law will presume them to be alive at the time of the theft, there would be variance, when given in evidence, that at that time they were dead, R. v. Edwards, R. & R. 497; and if, primâ facie, the animal is not the subject of larceny, as one feræ naturæ, the indictment must shew it to be dead, tame, or confined, when it may be the subject of individual property: 2 E. P. C. 777.

The value of the goods ought to be added, though it would not be necessary, where several articles of the same kind are stolen, to specify the value of each separate article : 2 Stark. Cr. P. C. 451; see also R. v. Peel, R. & R. 407. The indictment must allege, that the prisoner took and carried away the goods, and that it was done feloniously.

As to the other general requisites of an indictment, see ante, title "Indictment."

In proceeding to examine the second division of the subject, namely, the circumstances of the offence and the intent, it will be convenient to consider, 1st, What is a taking and carrying away. 2dly, The persons by whom the offence may be committed. 3rdly, Of what things. 4thly, In what place. And lastly, the felonious intent.

What is a taking.-There must be an actual taking, or severance from the possession of the owner, for every larceny includes a trespass; and the offence of larceny consists of the taking and the carrying away. If, therefore, the taking be such as does not amount to a trespass, the party carrying

away cannot be guilty of a felony. Upon this principle one joint tenant, or tenant in common of a personal chattel, cannot commit larceny of it: 1 H. P. C.513. And a prisoner was acquitted of larceny upon its appearing in evidence, that he could not otherwise get the goods, than by delivery of them by the owner's wife: Harrison's case, Leach, 56. It is no larceny if a man find goods, and, being ignorant of the owner, converts them, 3 Inst. 108, 1 Haw. P. C. c. 33, s. 2, even although he denies the finding, or secrete them, 1 H. P. C. 506; but it is otherwise if he knows the owner: 8 Ves, 405; 2 Leach, 952. So if a hackney coachman converts goods left in his coach by accident, it is felony R. v. Wynne, Leach, 460; R. v. Sears, id. 463; or R. v. Lamb, 2 E. P. C. 664. Hence, a party obtaining possession of goods lawfully, as upon trust, or in any matter whereby he acquires a special property in them, cannot afterwards be guilty of felony, unless by some new and distinct act of taking, as by severing part of the goods from the rest, with intent to convert them to his own use, he thereby determines the privity of the bailment and the special property thereby conferred in him; in which case he is as much guilty of a trespass against the virtual possession of the owner, by such second taking, as if the act had been done by a mere stranger: 2 E. P. C. 554. For instance, if a carrier, instead of delivering goods according to his contract, sells them in the bulk without breaking it, he is not guilty of felony, but only of a breach of trust. But if he severs any part, a subsequent conversion of the whole, or a part, would be felony see Brazier's case, R. & R. 337. This has been disputed, and much stress has been laid upon the unreasonableness of

making a man guilty of a felony for stealing part of that, of which if he had taken all, he would be only guilty of a misdemeanor; but a man is equally guilty of felony in taking the whole as in taking a part (when he has done any act to determine the privity of contract) : see Brazier's case, ut supra. The cause of the distinction, is to be found in the necessity of an accurate distinction between a breach of trust and an act of felony; and the principle is, that felony cannot be committed by a person having a legal possession of goods, as, for instance, under a contract: see Charlwood's case, Leach, 456. The contract must be put an end to, before felony can be committed; for during its existence, the person having possession under it, has primâ facie, a legal possession; therefore, although by selling the goods without breaking, he, in fact, destroys the privity of contract, still that act is executed in respect of goods which are at the time in his legal possession, the termination of the contract, and the act of conversion being contemporaneous; there is not, therefore, a caption and asportation of the goods of another, which is essential to the offence of larceny. And upon this principle, R. v. Madox, R. & R. 92, was decided. The prisoner was master and owner of a ship, and stole some of the goods delivered to him to carry. It was held not larceny, because he did not take them out of their packages. But if the package of goods be first broken, the contract is determined by that act; the legal possession of the carrier is at an end; and although the actual possession is still in him, the property revests in the owner, and any subsequent act of conversion is strictly an act committed upon the goods of another, and the larceny is

complete. It may here be observed, that the offence is the same, whether committed upon the whole or upon part.

A bare charge of goods, such as is committed to a servant, or a mere liberty to use, as by a guest at an inn, furnishes no objection to a charge of larceny: 1 H. P. C. 506; 1 Haw. P. C. c. 33, s. 6; and see post. In like manner, though the possession be delivered for a particular purpose, yet if it be obtained by fraud, it amounts to a tortious taking, for the right of ownership is reserved. But it is otherwise if the owner intends to

part with the property altogether. This forms one clear distinction between larceny and false pretences. The taking may be by the hand of another: 1 E. P. C. 555. When the possession has been lawfully acquired by the offender, but the owner still retained his property, i. e. when possession is parted with, but the right of property remains, larceny may be committed. Thus, where a servant to whom goods have been delivered by his master to carry to a customer, and he sells them and converts the money to his own use, he is guilty of larceny: 1 Leach, 285, and Kel. Rep. 35. If a bag of wheat is delivered to a warehouseman for safe custody, and he take it out of the bag and dispose of it, it is larceny: R. & R 337. Also when the possession is parted with only to deposit as a stake with one of confederates who tried to cheat a man of his property by means of a bet, such a taking is felonious: R. v. Robson, R. & R. 413. A banker's clerk taking money from the till, intending to embezzle it, is guilty of felony, though the check of a customer is left in lieu of it, if that customer has no cash in the banker's hands, R. v. Hammon, R.

& R. 221; see 4 Taun. 304; and where goods have not been actually reduced into the owner's possession, yet if he has desired another to deliver them to his servant, who embezzles a part, the servant is guilty of larceny: 2 Leach, 960, and S. P. Spear's case, 2 Leach, 962.

Carrying away.

A removal from the spot is a sufficient carrying away to complete the offence of larceny. A man lodged at an inn, and in the morning, before it was light, took the sheets from the bed, with an intent to steal them, and carried them into the hall, where he left them, and went to the stable for his horse, where he was seized; it was adjudged larceny: 27 Ass. Pl. 39; 3 Inst. 108; 1 H. P. C. 508. So, where a man had taken plate from a trunk and laid it on the floor, but was apprehended before he could carry it away: Kelynge, 31; Bro. Com. 107; H. P. C. 358, 508; Fost. 109. And to remove a package, from the head to the tail of a waggon, with a felonious intent, is a sufficient asportation to constitute larceny: Coslett's case, Leach, 271; 2 E. P. C. 556. And where the prisoner, sitting on the box of a coach, lifted a bag from the bottom of the boot on which it rested, and before he could draw the bag from the boot he was interrupted, it was held a sufficient asportation: R. v. Walzh, R. & M. 14 But where the posture only of the goods was altered, without any removal of them from the spot, it was held not a sufficient taking and carrying away: Cherry's case, 2 E. P. C. 556; S. P. Wilkinson's case, 1 H. P. C. 508; 2 E. P. C. 556; 1 Leach, 271, in notis And where the prisoner stopped the prosecutor with a feather-bed on his shoulders, and threatened to shoot him unless he put it down, but was

apprehended before he could remove it from the spot where the prosecutor had placed it, the judges were of opinion that the offence was not completed: Farrel's case, O. B. July 1787; Leach, 362; notes 2 E. P. C. 557. So, also, where A. had his purse tied to his girdle, and B. attempting to rob him, in the struggle the girdle broke and the purse fell to the ground, B. not having previously taken hold of it, nor picking it up afterwards, it was ruled no taking: 1 H. P. C. 533, 2 E. P. C. 6, 556. But a momentary possession by the thief is sufficient, though lost in the same instant: as, when an ear-ring was forcibly torn from a lady's ear, but found afterwards among the curls of her hair, it was held a sufficient carrying away. Sapier's case, 1 Leach, 360.

By whom.-Joint-tenants, or tenants in common of chattel, cannot commit larceny of it, as against each other, because the property and the possession are in both: 2 E. P. C. 558. But, if a part-owner of property steal it from the person in whose custody it is, and who is responsible for its safety, he is guilty of larceny: Bramley's case, R. & R. 478. And, under some circumstances, a man may be guilty of larceny in stealing his own goods, where they are taken with a wicked, fraudulent intent, from those who have a temporary special property in them; as where a man stole his own goods from his own bailee, without the intention of charging the bailee, but of defrauding the king-it was held Jarceny, because the bailee, in that case, had an interest in the posses sion, and the intent to deprive him of that possession wrongfully, and against his will, was felonious as against him, because it exposed him to a suit upon a bond: Wilkinson's case, R. & R. 470. And

some of the judges thought that it would have been larceny although there had been no felonious intention against the bailee, but only to defraud the crown: id., and see Fost., 124. And he may be accessory after the fact, by har. bouring and assisting the thief: 2 E. P. C. 558. And, similarly, a wife may steal the goods of her husband bailed to another person, id.; but cannot commit larceny of them from his possession; on which account a stranger is not guilty of larceny by delivery from the wife, although he knew they were the husband's goods: Harrison's case, 1 Leach, 56. Neither can the wife commit larceny in company of her husband; but she is punishable as if she were sole, if done in his absence, and by his mere command: 1 H. P. C. 45; S. P. C. 26. In order to convict a woman indicted either with or separate from her husband, there must be evidence that it was done by her own voluntary act, or that her husband, if present, had no knowledge or participation of the fact: E. P. C. 559. But the presumption of coercion does not arise in the husband's absence, although the offence be committed by his order and procuration: R. v. Sarah Morris, R. & R. 270. And if a woman insists that she is the man's wife in whose company the felony was done, she may be indicted by her husband's name and her own, with an alias, and the addition of spinster, and the onus of the proof of coverture is upon her; 2 E. P. C. 559.

Servants. In considering the offence of larceny at common law by servants, it will be unnecessary to say any thing upon that class of cases, where the goods were in the master's possession before the ac tual taking by the servant. They are all governed by the rule, that the

possession of the servant is the possession of the master; and where the person to whom goods are delivered has but the bare charge and custody of them, the legal possession remains in the owner. Upon this principle, a distinction worthy of remark occurs between the cases of servants and others. In Pear's case, 1 Leach, 253, and in Charlewood's case, id. 456, and all similar cases of delivery to strangers, it was considered necessary to prove a felonious intent at the time of obtaining the goods in order to constitute the offence of larceny. And so far was it held necessary, that an animus furandi should be proved to exist at the time of delivery, that without such proof, a conversion was held not to be larceny, when it took place even after the special purpose was over for which the bailment was made: R. v. Banks, R. & R. 441; and in Hick's case, R. & R. 87, the ground of the decision was, that at the time the prisoner (who was bailee for a special purpose) received the sheep, he intended to convert them to his own use. But, according to the principle above adverted to, it is not necessary to prove the felonious intention, in the cases of delivery by masters to servants; for the possession of the servant being always the possession of the master, the act of converting the goods fraudulently, is, in law, a tortious conversion from this possession, and is in itself evidence of the intent: see, on this head, 2 E. P. C. 564; see, also, Bass' case, 1 Leach, 285, and Chipchace's case, id. 805; Spear's case, 2 Leach, 962; and Harding's case, R. & R. 125. And it has been decided in the case of a servant stealing his master's corn to give to his master's horses, that the purpose for which the theft was committed, did not vary the case R. v. Morfit, R. & R. 307,

and S. P., C. v. Cabbage, id. 292. The only doubt which had any foundation was, where the master had no previous possession of the property, distinct from the actual possession of the servant; that is, where the goods had never been in the possession of the master, but by the receipt of the servant upon the delivery of another. This was not considered larceny at common law, but merely a breach of trust. To include cases of this kind, the 39 Geo. 3, c. 85, was passed. That statute has been repealed by 7 & 8 Geo. 4, c. 27, and a re-enactment (containing what appears to have been omitted in it by a mere blunder) passed by 7 & 8 Geo. 4, c. 29, s. 47. This last statute embraces the particular objects of the statutes of 33 H. 6, c. 1, and 21 H. 8, c. 7, which are both likewise repealed by the same statute as the 39 Geo. 3; and the usual distinction between the offences by servants of embezzlement and larceny is still preserved. The 7 & 8 Geo. 4, c. 29, s. 46, is a re-enactment of 3 Geo. 4, c. 38, and it is not necessary that the property stolen should be proved to be the master's; the words being "belonging to or in the possession or power of the master," and the value is immaterial. The 47 & 48 sects. of 7 & 8 Geo. 4, c. 29, refer to the offence of embezzlement by servants. (See ante, " title Embezzlement.")

Lodgers. Before the statutes of 3 & 4 W. & M. c. 9, it was held doubtful, whether a lodger could be guilty of larceny in fraudulently purloining the furniture in his lodgings, having, as was thought, a special property in the goods : Mary Raven's case, O. B. 14; Car. 2. Kel. 24, 81-2.; and in Rex v. Meeres, 1 Show, 50, a majority of the judges determined in the negative. But as two of the judges in this last case concurred, because it