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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: 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.
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 be 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 larceny, because the bailee, in that case, had an interest in the possession, 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 actual 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. 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
did not appear in evidence that the lodgings were taken with the intent of rifling them, and all the rest thought the point worthy of consideration, it seems reasonable, that when such intent clearly appears, it would be held a felony at common-law. The stat. 3 & 4 W. & M. c. 9, however, has expressly made it larceny, to steal any "chattel, bedding, or furniture," let to use
with any "lodging." But the preamble of this statute recites the practice of hiring lodgings "with the intent," &c. Proof of the felonious intent, therefore, still remained necessary, and it seems to have been the intention of the legislature, to preserve a consistency with the rule laid down (supra) in cases of larceny by servants. Upon this statute, Palmer's case, 2 Leach, 782, was decided, where it was adjudged, that if the whole house, ready furnished, was let to the prisoner, he could not be indicted upon this statute for stealing goods in the lodging-house; and Eyre, C. J., said, that the statute was meant to apply to cases where the owner had possession, and the lodger the use, and was made to obviate a doubt as to the owner's possession. In this case the agreement was to make good every thing which was missing, which made the case stronger.
The statute of William & Mary only uses the word lodging-It has been also held upon this statute, that the indictment must state by whom, as well as to whom the lodgings were let: Ann Pope's case, 1 Leach, 377. But in a late case, it was thought to be unnecessary to state by whom the lodging was let, and all the judges held that the letting might be stated either according to the fact, or according to the legal operation: Healey's case, R. & M. 1. Now 7 & 8 Geo. 4, c. 29, s. 45, comprises any fixture
or chattel, let to be used in or with any "house" or lodging, and extends to cases of larceny by "tenants," as well as lodgers. The statement as to the person by whom the lodging is let, would be regulated by Healey's case (supra), and as to the person to whom, the statute is sufficiently explicit. Under this statute, Goddard's case, 2 Leach, 617, would not be law. In this case the prisoners were acquitted, because the indictment stated, that the contract was made with the male prisoner, and by the evidence it was shewn to have been with the female. In Bew's case, P. & R. 480, the indictment was for stealing goods in a lodging-house, let by contract to the prisoner, to be used with the lodging aforesaid. This was held to import a liberty of sole user, and the prisoner was acquitted, as it appeared that others had a concurrent use of the lodging-room and goods. But since 7 & 8 Geo. 4, c. 29, s. 45, in the case of chattels, allows the indictment to be in the common form as for larceny, it is apprehended that this decision would not be held now to apply. In case of larceny of fixtures, the indictment may now be preferred, as if the offender were not a tenant, or lodger; and in either case the property may be laid either in the owner or the person letting to hire. Sect. 45.
Of what things.-By the common law, larceny can only be committed of goods personal, and not of chattels real, or such as are annexed to the freehold : 1 E. P. C. 587; 1 Haw. P. C. c. 33, s. 21; 1 H. P. C. 509, 510; 4 Blac. Com. 233. Therefore, no larceny at common law can be committed of trees, grass, &c. or lead of a house, or the like; but when once they are severed from the freehold, either by the owner himself or by the thief, if there be an interval between his
severing and taking away, so that
or nursery ground. In these, the time when the offence is committed, is not essential. The 44th section extends to stealing any glass or wood work belonging to any building whatsoever; therefore, under this statute, the "stealing a window-casement," made of iron, lead, and glass, might be included, which could not under the former statutes, 4 Geo. 2, c. 32, and 21 Geo. 5, c. 68: see R. v. Senior, 1 Leach, 509. This statute also extends to any metal fixed in any land, or a fence to any dwellinghouse, garden, or area, or in any square, street, or public place; and in this last case it is not necessary to allege the property to be in any person. The 7 & 8 Geo. 4, c. 27, repeals 4 Geo. 2, c. 32, and 21 Geo. 3, c. 68. A church would come within the meaning of the statute: see Parker's and Easy's case, E. P. C, 592.
Stealing from certain mines.By the 37th section it is made felony to steal, or to sever with the intent to steal, the ore of any metal, or any lapis calaminaris, manganese, or mundick, or any wad, black cawke, or black lead, or any coal, or cannel coal, from any mine, &c. Wad, black cawke, or black lead were the subjects of the statute 25 Geo. 2, c. 10. Coals were protected by the 39 & 40 Geo. 3, c. 77, s. 5. are repealed.
These two statutes
Records.-The 8 Hen. 6, c. 12, as relates to stealing, &c. "records," is repealed, and the 21st section of this act substituted, which differs from the repealed act-1st, By extending to "any person. 2dly, By making destruction, or obliterating, an offence as well as stealing 3dly, By including interrogatories, depositions, affidavits, rules, orders, or any original documents whatsoever. 4thly, By extending to the court