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the finding the indictment, or ex- property stolen had been paid for, hibiting the information, or on an not by the piece, but by the numimpossible day, or on a day that ber of handkerchiefs. In an innever happened. The same obser- dictment for stealing animals, vation that was made as to a bad which at the time were dead, that venue being taken advantage of, fact must be stated in the indicton demurrer, applies here also. ment; for, as without such state

As to the property, the subject of ment, the law will presume them the offence. --The goods must be to be alive at the time of the theft, described with sufficient certainty, there would be variance, when and proved as laid, in order that it given in evidence, that at that time may appear upon the face of the they were dead, R. v. Edwards, indictment, that the thing taken is R. & R. 497 ; and if, primâ facie, such, whereof larceny may be coin- the animal is not the subject of mitted, 2 E. P. C. 777; and also, larceny, as one feræ naturæ, the inthat the court may see what judg. dictment must shew it to be dead, ment to pass on the whole of the tame, or confined, when it may be indictment. And merely charging the subject of individual property : a prisoner with stealing the “goods 2 E. P. C. 777. and chattelsof another, is not suf- The value of the goods ought to ficient: id. A conviction of a be added, though it would not be prisoner for stealing “ten pounds necessary, where several articles of in monies numbered,” was held the same kind are stolen, to specify bad, for want of sufficient certainty the value of each separate article : as to the species of money : R. y.

2 Stark. Cr. P. C. 451; see also Fry, R. & R. 482. An indictment R. v. Peel, R. & R. 407. The infor stealing “a certain note” is dictment must allege, that the pritoo general a description, and the soner took and carried away the addition of the words, “commonly goods, and that it was done felonicalled a bank note,” was held not ously. to aid such a description: R. v. As to the other general requisites Craven, R. & R. 14. So, a descrip- of an indictment, see ante, title tion of the instrument as a “ bank Indictment.post bill,” was held insufficient: In proceeding to examine the R. v. Chard, R. & R. 488. But in second division of the subject, an indictment for stealing writings namely, the circumstances of the ofrelating to real estates, it is, by the fence and the intent, it will be con23rd sect. of 7 & 8 Geo 4, c. 29,made venient to consider, 1st, What is sufficient to allege the thing stolen a taking and carrying away. 2dly, to be evidence of the title, or part The persons by whom the offence of the title, of some one having may be committed. 3rdly, Of a present legal and equitable in- what things. 4thly, In what place. terest, and to mention such real And lastly, the felonious intent. estate, or some part thereof. In an What is a taking. There must indictment for stealing “six hand- be an actual taking, or severance kerchiefs,” the property was held from the possession of the owner, to be rightly described, although for every larceny includes a tresthey were all in one piece and not pass ; and the offence of larceny severed, but only distinguished consists of the taking and the carfrom each other by a line of white rying away. If, therefore, the cotton : R. v. Nibbs, R. & M. 25. taking be such as does not amount In evidence it was stated, that the to a trespass, the party carrying 108,

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away cannot be guilty of a felony. making a man guilty of a felony Upon this principle one joint for stealing part of that, of which tenant, or tenant in common of a if he had taken all, be would be personal chattel, cannot commit only guilty of a misdemeanor; but larceny of it: 1 H.P.C.513. And a man is equally guilty of felony in a prisoner was acquitted of larceny taking the whole as in taking a upon its appearing in evidence, part (when he has done any act to that he could not otherwise get the determine the privity of conti 1): goods, than by delivery of them by see Brazier's case, ut supra. The the owner's wife : Harrison's case, cause of the distinction, is to be Leach, 56. It is no larceny if a man found in the necessity of an accufind goods, and, being ignorant of rate distinction between a breach the owner, converts them, 3 Inst. of trust and an act of felony; and

Haw. P. C.c.33, s. 2, even the principle is, that felony cannot although he denies the finding, or be committed by a person having secrete them, 1 H. P. C.506; but a legal possession of goods, as, for it is otherwise if he knows the instance, under a contract: owner: 8 Ves, 405; 2 Leach, 952.

Charlwood's case,

Leach, 456. The So if a hackney coachman converts contract must be put an end to, goods left in his coach by accident, before felony can be committed ; it is felony: R. v. Wynne, Leach, for during its existence, the person 460; R. v. Sears, id. 463; or R. v. having possession under it, bas Lamb, 2 E. P. C. 664. Hence, a primâ facie, a legal possession ; party obtaining possession of goods therefore, although by selling the lawfully, as upon trust, or in any goods without breaking, he, in matter whereby he acquires a spe. fact, destroys the privity of contract, cial property in them, cannot after- still that act is executed in respect wards be guilty of felony, unless of goods which are at the time in by some new and distinct act of his legal possession, the termina. taking, as by severing part of the tion of the contract, and the act of goods from the rest, with intent to conversion being contemporaneous; convert them to his own use, he there is not, therefore, a caption thereby determines the privity of and asportation of the goods of anthe bailment and the special pro- other, which is essential to the perty thereby conferred in him; in offence of larceny. And upon this which case he is as much guilty of principle, R. v. Nadox, R. & R. a trespass against the virtual pos- 92, was decided. The prisoner session of the owner, by such se- was master and owner of a ship, cond taking, as if the act had been and stole some of the goods dedone by a mere stranger: 2 E. P. livered to him to carry. It was C. 554. For instance, if a carrier, held not larceny, because he did instead of delivering goods accord- not take them out of their packing to his contract, sells them in the ages. But if the package of goods hulk without breaking it, he is not be first broken, the contract is deguilty of felony, but only of a termined by that act; the legal bieach of trust. But if he severs possession of the carrier is at an any part, a subsequent conversion end; and although the actual posof the whole, or a part, would be session is still in him, the profeiony: see Brazier's case, R. & perty revests in the owner, and any R. 337. This has been disputed, subsequent act of conversion is and much stress has been laid strictly an act committed upon the upon the unreasonableness of goods of another, and the larceny is complete. It may here be ob- & R. 221; see 4 Taun. 304; and served, that the offence is the same, where goods have not been actually whether committed upon the whole reduced into the owner's possesor upon part.

sion, yet if he has desired another A bare charge of goods, such as to deliver them to his servant, who is committed to a servant, or a embezzles a part, the servant is mere liberty to use, as by a guest guilty of larceny: 2 Leach, 960, at an inn, furnishes no objection and S. P. Spear's case, Leach, to a charge of larceny: 1 H. P. C. 962. 506; 1 Haw. P. C. c. 33, s. 6; and Carrying away. see post. In like manner, though A removal from the spot is a the possession be delivered for a sufficient carrying away to comparticular purpose, yet if it be ob. plete the offence of larceny. A tained by fraud, it amounts to a man lodged at an inn, and in the tortious taking, for the right of morning, before it was light, took ownership is reserved. But it is the sheets from the bed, with an otherwise if the owner intends to intent to steal them, and carried part with the property altogether. them into the hall, where he left This forms one clear distinction them, and went to the stable for his between larceny and false pre- horse, where he was seized ; it was tences. The taking inay be by adjudged larceny: 27 Ass. Pl. the hand of another: 1 E. P.Č. 39; 3 Inst. 108; 1 H. P. C. 508. 555. When the possession has So, where a man had taken plate been laufully acquired by the of- from a trunk and laid it on the fender, but the owner still retained floor, but was apprehended before his property, i. e. when possession he could carry it away: Kelynge, is parted with, but the right of 31; Bro. Com. 107; H. P. C. 358, property remains, larceny may be 508; Fosi. 109. And to remove committed. Thus, where a servant a package, from the head to the to whom goods have been deli- tail of a waggon, with a felonious vered by his master to carry to a intent, is a sufficient asportation to customer, and he sells them and constitute larceny: Coslett's case, converts the money to his own Leach, 271; 2 E. P. C. 556. And use, he is guilty of larceny: 1 where the prisoner, sitting on the Leach, 285, and Kel. Rep. 35. If box of a coach, lifted a bag from a bag of wheat is delivered to a the bottom of the boot on which it warehouseman for safe custody, rested, and before he could draw and he take it out of the bay and the bag from the boot he was interdispose of it, it is larceny: R. & rupted, it was beld a sufficient asR 337. Also when the possession portation : R. v. Walzh, R. & M. 14 is parted with only to deposit as a But where the posture only of the stake with one of confederates goods was altered, without any rewho tried to cheat a man of bis moval of them from the spot, it was property hy means of a bet, such a held not a sufficient taking and taking is felonious : R. v. Robson, carrying away: Cherry's case, 2 R. & R. 413. A banker's clerk E. P. C. 556; S. P. Wilkinson's taking money from the till, intend- case, 1 H. P. C. 508; 2 E. P. C. ing to embezzle it, is guilty of 556; 1 Leach, 271, in notis and felony, though the check of a cus- where the prisoner stopped the protomer is left in lieu of it, if that secutor with a feather-bed on his customer has no cash in the shoulders, and threatened to shoot hanker's hands, R. v. Hammon, R. bim unless be put it down, but was apprehended before he could re- some of the judges thought that it move it from the spot where the would have been larceny although prosecutor had placed it, the judges there had been no felonious inwere of opinion that the offence tention against the bailee, but was not completed : Farrel's case, only to defraud the crown: id., 0. B.July 1787; Leach, 362 ; notes and see Fost., 124. And be may be 2 E. P. C. 557. So, also, where accessory after the fact, by har. A. bad his purse tied to his girdle, bouring and assisting the thief : and B. attempting to rob bim, in 2 E. P. C. 558. And, similarly, a the struggle the girdle broke and wife may steal the goods of her the purse fell to the ground, B. not husband bailed to another person, having previously taken bold of it, id.; but cannot commit larceny of nor picking it up afterwards, it was them from his possession; on which ruled no taking : 1 H. P. C. 533, account a stranger is not guilty of 2 E. P. C. 6, 556. But a momen- larceny by delivery from the wife, tary possession by the thief is suffi- although he knew they were the cient, though lost in the same in- husband's goods: Harrison's case, stant: as, when an ear-ring was for. 1 Leach, 56. Neither can the wife cibly torn from a lady's ear, but commit larceny in company of her found afterwards among the curls husband; but she is punishable as if of her hair, it was held a sufficient she were sole, if done in bis al. carrying away.

Sapier's case, sence, and by his mere command : i Leach, 360.

I H. P. C. 45; S. P. C. 26. In By whom.-Joint-tenants, or te- order to convict a woman indicted nants in common of chattel, cannot either with or separate from her commit larceny of it, as against husband, there must be evidence each other, because the property that it was done by her own volun. and the possession are in both : 2 tary act, or that her husband, if E. P. C. 558. But, if a part-owner present, had no knowledge or par. of property steal it from the per- ticipation of the fact: E. P. C. son in whose custody it is, and 559. But the presumption of cowho is responsible for its safety, he ercion does not arise in the busis guilty of larceny: Bramley's band's absence, although the ofcase, R. & R. 478. Ind, under fence be committed by his order some circumstances, a man may be and procuration : R. v. Sarah Marguilty of larceny in stealing his ris, R. & R. 270. And if a wo. own goods, where they are taken man insists that she is the man's with a wicked, fraudulent intent, wife in whose company the felony from those who have a temporary was done, she may be indicted by special property in them; as where her husband's name and her own, a man stole his own goods from with an alias, and the addition of his own bailee, without the inten. spinster, and the onus of the proof tion of charging the bailee, but of of coverture is upon her : 2 E.P.C. defrauding the king-it was held 559. larceny, because the bailee, in that Servants.- In considering the case, had an interest in the posses. offence of larceny at common law sion, and the intent to deprive bim by servants, it will be unnecessary of that possession wrongfully, and to say any thing upon that class of against bis will, was felonious as cases, where the goods were in the against him, because it exposed master's possession before the ac. him to a suit upon a bond : Wil tual taking by the servant. They kinson's case, R. & R. 470. And are all governed by the rule, that the possession of the servant is the pos. and S. P., C. v. Cabbage, id. 292. session of the master; and where The only doubt which had any the person to whom goods are de- foundation was, where the master livered has but the bare charge and had no previous possession of the custody of them, the legal posses- property, distinct from the actual sion remains in the owner. Upon possession of the servant; that is, this principle, a distinction worthy where the goods had never been in of remark occurs between the cases the possession of the master, but by of servants and others. In Pear's the receipt of the servant upon the case, 1 Leach, 253, and in Charle- delivery of another. This was not wood's case, id. 456, and all similar considered larceny at common law, cases of delivery to strangers, it but merely a breach of trust. To was considered necessary to prove include cases of this kind, the 39 a felonious intent at the time of Geo. 3, c. 85, was passed. That obtaining the goods in order to con- statute has been repealed by 7 & 8 stitute the offence of larceny. And Geo. 4, c. 27, and a re-enactment so far was it held necessary, that an (containing what appears to have animus furandi should be proved to been omitted in it by a mere blunexist at the time of delivery, that der) passed by 7 & 8 Geo. 4, c. 29, without such proof, a conversion S. 47. This last statute embraces was held not to be larceny, when the particular objects of the statutes it took place even after the special of 33 H. 6, c. 1, and 21 H. 8, c. 7, purpose was over for which the which are both likewise repealed bailment was made : R. v. Banks, by the same statute as the 39 Geo. R. & R. 441; and in Hick's case, 3; and the usual distinction be. R. & R. 87, the ground of the de- tween the offences by servants of cision was, that at the time the pri- embezzlement and larceny is still soner (who was bailee for a special preserved. The 7 & 8 Geo. 4, c. 29, purpose) received the sheep, he in- 8. 46, is a re-enactment of 3 Geo. 4, tended to couvert them to his own c. 38, and it is not necessary that

But, according to the prin- the property stolen should be proved ciple above adverted to, it is not to be the master's; the words being necessary to prove the felonious “ belonging to or in the possession intention, in the cases of delivery or power of the master,” and the by masters to servants; for the value is immaterial. The 47 & 48 possession of the servant being al- sects, of 7 & 8 Geo. 4, c. 29, refer ways the possession of the master, to the offence of embezzlement by the act of converting the goods servants. (See ante, title Embezfraudulently, is, in law, a tortious zlement.") conversion from this possession, Lodgers.-- Before the statutes of and is in itself evidence of the in- 3 & 4 W. & M. c. 9, it was held tent: see, on this head, 2 E. P. C. doubtful, whether a lodger could 564 ; see, also, Bass' case, 1 Leach, be guilty of larceny in fraudulently 285, and Chipchace's case, id. 805; purloining the furniture in his Spear's case, 2 Leach, 962; and lodgings, having, as was thought, a Harding's case, R. & R. 125. And special property in the goods : it has been decided in the case of a Mary Raven's case, O. B. 14; Car. servant stealing his master's corn 2. Kel. 24, 81-2.; and in Rex v. to give to his master's horses, that Meeres, 1 Show, 50, a majority of the

purpose for which the theft the judges determined in the negawas committed, did not vary the tive. But as two of the judges in case : R. v. Morfit, R. & R. 307, this last case concurred, because it

use.

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