wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larceny. As if A. lends B. a horse, and he rides

obtain money from another by ring-dropping is a similar offence, if there was an original design to steal, (1 Leach. 238; 2 Leach, 572;) and where the owner of goods sends them by a servant, to be delivered to A., and B., pretending to be A., obtains them from him, B. is guilty of larceny. 2 East, P. C. 673. So where the prisoner, pretending to be the servant of a person who had bought a chest of tea deposited at the East India Company's warehouse, got a request-paper and permit for the chest, and took it away with the assent of a person in the company's service who had the charge of it, this was held felony. R. & Ry. C. C. 173. So to obtain a bill of exchange from an endorsee under a pretence of getting it discounted, is felony, if the jury find that the party did not intend to leave the bill in the possession of the defendant previous to receiving the money to be obtained on his credit, and that he undertook to discount with intent to convert it to his own use, (I Leach, 294;) and it seems that if a person procure possession of a house with an intent to steal the lead affixed to it, he may be indicted, on the 4 Geo. II. c. 32, for the statutable larceny. 2 Leach, 850. Vide State v. Watson, 41 N. H. 533. Loomis v. People, 67 N. Y. 322. Smith v. People, 53 N. Y. 111. Miller v. Com., 78 Ky. 15. State v. Bryant, 78 Ky. 124. Hill v. State, 6 Baxter (Tenn.) 522. People v. Shaw, 57 Mich. 103.

In all these cases the defendant's original design in obtaining the goods was felonious, and the owner never parted with his property therein; for where either is not the case there can be no larceny, as will appear from the following instances. Thus, where a house was burning, and a neighbor took some of the goods, apparently to save them from the flames, and afterward converted them to his own use, it was holden no felony, because the jury thought the original design honest. I Leach, 411, notes. And it is certain that if the property in effects be given voluntarily, whatever false pretence has been used to obtain it, no felony can be committed. I Hale P. C. 506. R. & R. C. C. 225, S. P. Thus, obtaining silver on pretence of sending a half-guinea presently in exchange is no felony. 2 East, P. C. 672. So, writing a letter in the name of a third person to borrow money, which he obtains by that fraud, is only a misdemeanor (2 East, P. C. 673) and it makes no difference, in these cases, that the credit was obtained by fraudulently using the name of another to whom it was intended to be given (1 Leach, 303, notes. 2 East, P. C. 673. R. & R. C. C. 225); and if a horse-dealer delivers a horse to another on his promise to return immediately and pay for it, the party's riding off and not returning is no felony. I Leach, 467. 2 East, P. C. 669. So if a tradesman sells goods to a stranger as for ready money, and sends them to him by a servant, who delivers them and takes in payment for them bills which prove to be mere fabrications, this will be no larceny, though the party took his lodgings for the express purpose of obtaining the goods by fraud; because the owner parted with his property. 2 Leach, 614. So fraudulently winning money at gaming, where the injured party really intended to play, is no larceny, though a conspiracy to defraud appear in evidence. 2 Leach, 610. So brokers, bankers, or agents embezzling securities deposited with them for security or any special purpose are not guilty of larceny (4 Taunt. 258. 2 Leach, 1054. R. & R. C. C. 215, S. C.), but this decision occasioned the 52 Geo. III. c. 63 (superseded by 24 & 25 Vict. c. 96, 8 7579) to be passed, making it a misdemeanor in brokers, bankers, and others to embezzle securities deposited with them for safe custody or for any special purpose, in violation of good faith and contrary to the special purpose for which they were deposited. Thus, in all cases where a voluntary delivering by the prosecutor is the defence to be relied on, two questions arise: first, whether the property was parted with by the owner; secondly, whether supposing it was not, the prisoner, at the time he obtained it, conceived a felonious design. In the first case, no fraud or breach of trust can make a conversion larceny; in the second, the complexion of the offence must depend on the felonious design. Vide People v. Phelps, 49 How. (N. Y.) Pr. 437. Crocheson's Case, I C. Hall. Rec. (N. Y.) 177. Hadley's Case, 5 C. Hall, Rec. 8. Hissot's Case, ibid, 137. Witt v. State, 6 Mo. 671. Trafton v. State, 5 Tex. App. 480. Debbs v. State, 43 Tex. 650.

3rdly, Where the offender lawfully acquired the possession of and qualified property in goods under color of bailment, but with the intention of stealing them; or where the bailment has been determined either by the wrongful act of the offender or by the intention of the parties, if he afterward embezzle such goods he will be guilty of larceny. For in the first case, after the determination of the special contract by any plain and unequivocal wrongful act of the bailee, inconsistent with that contract, the property as against the bailee, reverts to the owner, although the actual possession remain in the bailee. 2 East, P. C. 691, 627. The most remarkable case of this description is that of a carrier pointed out by the learned commentator. So the conversion of money with a felonious intent, which was found in a bureau delivered to a carpenter to be repaired, by breaking it open, when there was no necessity for so doing for the purpose of repairs,

away with him, or if I send goods by a carrier, and he carries them away; these are no larcenies. (b) But if the carrier opens a bale or pack of goods,

(b) 1 Hal. P. C. 504.

will amount to a larceny (8 Ves. 405. 2 Leach, 952. 2 Russ. 1045), and in the same case it was said that if a pocket-book containing bank-notes were left in the pocket of a coat sent to be mended, and the tailor took the pocket-book out of the pocket and the notes out of the pocket-book with a felonious intent, it would amount to a felony. If the master and owner of a ship steal some of the goods delivered to him to carry, it is not larceny in him, unless he took the goods out of their packages; nor, if larceny, would it be an offence within 24 Geo. II. c. 45. R. & R. C. C. 92. In Rex v. Hassell, L. & C. 58; 30 L. J. M. C. 175, larceny by bailee does not lie unless the bailment is to redeliver the same chattel or money. Sed vide supra p. *230, note, and Reg. v. Bunkall, L. & C. 371; 33 L. J. M. C. 75. Reg. v. Oxenheim, 46 L. J., M. C. 125, and cases cited in Arch. Crim. Pl. 21 ed. 396. And if corn be sent to a miller to grind and he take part of it he will be guilty of felony (1 Roll. Abr. 73), but where forty bags of wheat were sent to the prisoner, a warehouseman, for safe custody until sold by the prosecutor, and the prisoner's servant, by direction of the prisoner, emptied four of the bags and mixed their contents with other inferior wheat, and part of the mixture was disposed of by the prisoner and the remainder was placed in the prosecutor's bags which had thus been emptied, and there was no severing of any part of the wheat in any one bag with intent to embezzle that part only which was so severed, the prisoner was held guilty of larceny in taking the wheat out of the bag. R. & R. C. C. 337. And where property which the prosecutors had bought was weighed out in the presence of their clerk and delivered to their carter's servant to cart, who let other persons take away the cart and dispose of the property for his benefit jointly with that of the other person's, it was held that the carter's servant was not guilty of a mere breach of trust, but that he as well as the other persons were guilty of larceny at common law. Russ. & Ry. C. C. 125; and see 2 East, P. C. 568 to 574, 695 to 698. But in all these cases the defendant must have had an intention of stealing the property at the time it was delivered to him. R. & R. C. C. 441, overruling 2 East, P. C. 690, 694. 2 Russ. 1089, 1090. I R. & M. C. C. 87. Any separation of a part from the whole seems to be as much a trespass as the breaking of a package; it is the separation that constitutes the trespass. Thus where a carrier, without the consent of the owner, separated and converted to his own use, sundry bars of pig iron, part of a larger number which had been delivered to him for transportation and loaded upon his canal boat, was held larceny and not embezzlement. Nichols v. People, 17 N. Y. (Smith) 114 (1858). Although every larceny includes a trespass, and cannot exist unless there has been a taking from the possession of another, yet where one having only the care, charge, or custody of property for the owner, converts it, with an intent to steal, it is larceny. People v. Call, 1 Denio (N. Y.) 120 (1845).

4thly. Where the offender has the qualified property and actual possession of the goods at the time of the embezzlement, he will not be guilty of larceny at common law. Thus, where a servant or clerk had received property for the use of his master, and the master never had any other possession than such possession by his servant or clerk, it was doubted whether the latter was guilty of felony in stealing such property or was guilty merely of a breach of trust. 2 Leach, 835. Hale, 668. East, P. C. 570, 571. And see 4 Taunt. 258. Russ. & Ry. C. C. 215, S. C. 2 Leach, C. C. 1054. So a cashier of the bank could not be guilty of felony in embezzling an India bond which he had received from the court of chancery and was in his actual as well as constructive possession. I Leach. 28. So if a clerk received money of a customer, and without at all putting it in the till converted it to his own use, he was guilty only of a breach of trust; though, had he once deposited it and then taken it again, he would have been guilty of a felony. 2 Leach, 835.

Servants and Clerks. The dangers resulting from this doctrine occasioned the enactment of 39 Geo. III. c. 85 (now superseded by stat. 24 & 25 Vict. c. 96 68), against such embezzlements by servants or clerks, rendering the offence punishable with transportation for fourteen years. (Now punishable with penal servitude for not longer than fourteen years nor shorter than three, or imprisonment for a term not longer than two years with or without hard labor and with or without solitary confinement, and if the criminal be a male under the age of sixteen years, with or without whipping.) This act extends only to such servants as are employed to receive money, and to instances in which they receive money by virtue of their employment. It seems an apprentice, though under the age of eighteen, is within the act, (R. & R. C. C. 80;) so is a female servant. R. & R. C. C. 267. A person employed upon commission to travel for orders and to collect debts is a clerk within the act, though he is employed by many different

or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed and afterwards takes away the whole, these are larcenies;

houses on each journey, and pays his own expenses out of his commission on each journey, and does not live with any of his employers nor act in any of their countinghouses. R. & R. C. C. 198. So a servant in the employment of A. & B. who are partners, is the servant of each, and if he embezzle the private money of one may be charged, under the act, as the servant of that individual partner. 3 Stark, C. N. P. 70. A man is sufficiently a servant within the act although he is only occasionally employed when he has nothing else to do, and it is sufficient if he was employed to receive the money he embezzled, though receiving money may not be in his usual employment, and although it was the only instance in which he was so employed. R. & Ry. C. C. 299. A clerk intrusted to receive money at home from out-door collectors received it abroad from out-door customers, it was held that such receipt of money may be considered, "by virtue of his employment," within the act, though it is beyond the limits in which he is authorized to receive money from his employers. R. &. Ry. C. C. 319. So if a servant, generally employed by his master to receive sums of one description and at one place only, is employed by him in a particular instance to receive a sum of a different description and at a different place, this latter sum is to be considered as received by him by virtue of his employment; for he fills the character of servant, as it is by being employed as servant he receives the money. R. & Ry. C. C. 516. Where the owner of a colliery employed the prisoner as captain of one of his barges, to carry out and sell coal, and paid him for his labor by allowing him two-thirds of the price for which he sold the coals, after deducting the price charged at the colliery, he was held a servant within the act, and, having embezzled the price, he was guilty of larceny within the act. R. & R. C. C. 139. So a servant who received money for his master for articles made of his master' materials, which he embezzled, was held within the act, though he made the articles and was to have a given portion of the price for making them. Russ. & Ry. C. C. 145. The act is not confined to clerks and servants of persons in trade: it extends to the clerks and servants employed to receive of all persons whatever. Therefore, where the overseers of a township employed the prisoner as their accountant and treasurer, and he received and paid all the money receivable or payable on their account, he received a sum and embezzled it, he was held a clerk and servant within the act. R. & R. C. C. 349. 2 Stark. C. N. P. 349, S. C. If a servant, immediately on receiving a sum for his masters, enters a smaller in his book, and ultimately account to his master for the smaller sum only, he may be considered as embezzling the difference at the time he made the entry; and it will make no difference though he received other sums for his master on the same day, and in paying them and the smaller sum to his master together he might give his master every piece of money or note he received at the time he made the false entry. R. & R. C. C. 463. 3 Stark. N. P. C. 67, S. C. It seems the act does not apply to cases which were larceny at common law. 2 Leach, C. C. 1033. R. &. R. C. C. 160, S. C. Peck's case, cor. Park, J. Staffordshire Sum. Ass. 1817. 3 Stark. Evid. 842. It is questionable, therefore, whether, if a servant receives money from his master to pay C., and does not pay it, he can be indicted for embezzlement, (Russ. & Ry. C. C. 267;) but as counts for larceny at common law and for embezzlement under the statute may be joined in the same indictment, any difficulty in this respect may be avoided. See 3 M. & S. 549, 550. Although property has been in the possession of the prisoner's masters, and they only intrust the custody of such property to a third person to try the honesty of their servant, if the servant receives it from such third person and embezzles it, it is an offence within the act. R. &. R. C. C. 160. 2 Leach, S. C. And see Com. v. Berry, 99 Mass. 428. Phelps v. Staples, 72 N. Y. 334. State v. Jarvis, 63 N. C. 556. Powell v. State, 34 Ark. 693. State v. Schinger, 20 Wisc. 74. U. S. v. Clew, 4 Nash. C. C. 700. Party Stealing His Own Goods, etc.-Besides the cases already mentioned in the text, if a man steals his own goods from his own bailee, though he has no intent to charge the bailee, but his intent is to defraud the king, yet if the bailee had an interest in the possession and could have withheld it from the owner, the taking is a larceny. R. & R. C. C. 470. 3 Burn, J., 24 ed. 240, S. C. And a man may be accessary after the fact to a larceny committed on himself by receiving and harboring the thief instead of bringing him to justice, (Fost. 123;) but a joint tenant in common of effects cannot be guilty of larceny in appropriating the whole to his own purpose, (1 Hale, 513;) 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. R. & R. C. C. 478. 3 Burn, Jr., 24 ed., 241, S. C. Nor can a wife commit larceny of her husband's goods, because his custody is in law hers, and they are considered as one person. I Hale, 514. On the same ground, no third person can be guilty of larceny by receiving the husband's goods from the wife; and if she keep the key of the place where the property is kept, her privity will be presumed, and the defendant must be acquitted. I Leach, 47. See i Hale, 45, 516. Kel. 37

(c) for here the animus furandi (4) is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. But bare non-delivery shall not, of course, be intended to arise from a felonious design, since that may happen from a variety of other accidents. Neither by the common law was it larceny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But, by statute 33 Hen. VI. c. 1, the servants of persons deceased, accused of embezzling their masters' goods, may, by writ out of chancery (issued by the advice of *the [*231 chiet justices and chief baron, or any two of them) and proclamation made thereupon, be summoned to appear personally in the court of king's bench to answer their masters' executors in any civil suit for such goods, and shall, on default of appearance, be attainted of felony. And, by statute 21 Hen. VIII. c. 7, if any servant embezzles his master's goods to the value of forty shillings, it is made felony; except in apprentices, and servants under eighteen years old. (5) But if he had not the possession, but only the care and oversight, of the goods, as the butler of the plate, the shepherd of the sheep, and the like, the embezzling of them is felony at common law. (d) So if a guest robs his inn or tavern of a piece of plate, it is larceny; for he hath not the possession delivered to him, but merely the use; (e) and so it is declared to be by statutes 3 & 4 W. & M. c. 9 if a lodger runs away with the goods from his ready-furnished lodgings.(6) Under some circumstances also a man may be guilty of felony in taking his own goods; as if he steals them from a pawnbroker, or any one to whom he hath delivered and intrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with an intent to charge the hundred with the loss according to the statute of Winchester. (ƒ) (7)

(c) 3 Inst. 107.
(d) 1 Hal. P. C. 506.

(e) 1 Hawk. P. C. 90.
(f) Fost. 123, 124.

The taking must always be against the will of the owner, (1 Leach, 47;) but if the owner, in order to detect a number of men in the act of stealing, directs a servant to appear to encourage the design and lead them on till the offence is complete, so long as he did not induce the original intent, but only provided for its discovery after it was formed, the criminality of the thieves will not be destroyed. 2 Leach, 913. So if a man be suspected of an intent to steal, and another, to try him, leaves property in his way which he takes, he is guilty of larceny. 2 Leach, 921. And if, on thieves breaking in to plunder a house, a servant, by desire of his master, show them where the plate is kept which they remove, this circumstance will not affect the crime. 2 Leach, 922.-CHITTY. To constitute larceny there must be a trespass in the taking. This is not the case when a bailee converts property, provided he takes the particular thing bailed. Robinson v. State, I Caldwell (Tenn.), 120 (1860).

Lost property may be the subject of larceny, but at the time of taking a felonious intent must exist with the taker. See Ransom v. State, 22 Conn. 153. People v. Anderson, 14 Johns. 294. Tanner's Case, 14 Grat. (Va.) 635. Robinson v. State, 11 Tex, App. 403. Com. v. Titus, 116 Mass. 42. Hunt v. Com. 13 Grat. (Va.) 757. Martinez v. State, 16 Tex. App. 122. Stark v. State, 63 Ind. 285. Griggs v. State, 58 Ala. 425.

(4) [Intention of stealing.]

(5) See supra 230, note 2.

(6) See stat. 24 & 25 Vict. c. 96, 74, for the present law upon the subject of larceny by tenants or lodgers.

(7) If a thief cut a belt on which a purse is hung and it drops to the ground where he leaves it, or if he compel a man to lay down goods which he is carrying, and is apprehended before he raises them from the ground, the crime is incomplete. I Leach, 322, n. b. I Hale, 533. And if goods are tied to a string, which is fastened at one end to a counter, and a person, intending to steal them, takes hold of the other and removes them towards the door as far as the string will permit him, this will be no felony. So where the prosecutor had his keys tied to the strings of his purse in his pocket, which the prisoner endeavored to take from him and was detected with the purse in his hand, but the strings still hung to the pocket by the keys, this was holden to be no asportation, and 1629

BOOK IV.-14.

2. There must not only be a taking, but a carrying away, cepit et asportavit was the old law-Latin. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation or carrying away. As, if a man be leading another's horse out of a close, and be apprehended in the fact; or if a guest, stealing goods out of an inn, has removed them from his chamber down-stairs; these have been adjudged sufficient carryings away to constitute a larceny.(g) Or if a thief, intending to steal plate, takes it out of a chest in which it was and lays it down upon the floor, but is surprised before he can make his escape with it, this is larceny. (h)

*232]

*3. This taking and carrying away must also be felonious; that is, done animo furandi:(8) or, as the civil law expresses it, lucri

(g) 3 Inst. 108, 109.

(h) 1 Hawk. P. C. 93.

therefore no larceny was committed. I Leach, 321, n. a. 1 Hale, 508. But a very slight asportation will suffice. Thus, to snatch a diamond from a lady's ear which is instantly dropped among the curls of her hair. (I Leach, 320. 2 East, P. C. 557;) to remove sheets from a bed and carry them into an adjoining room, (1 Leach, 222, in notes,)—to take plate from a trunk and lay it on the floor with intent to carry it away, (ibid.)-and to remove a package from one part of a wagon to another with a view to steal it, (1 Leach 236,) have respectively been holden to be felonies; and where the prisoner had lifted up a bag from the bottom of a boot of a coach but was detected before he had got it out, it did not appear that it was entirely removed from the space it at first occupied in the boot but the raising it from the bottom had completely removed each part of it from the space that specific part occupied, this was held a complete asportation. 1 Ry. & Moody, C. C. 14. But if the defendant merely changed the position of a package from lying endways to lengthways, for the greater convenience of taking out its contents, and cuts the outside of it for that purpose, but is detected before he has taken any thing, there will be no larceny committed. Id. ibid. in notes. Where it is one continuing transaction, though there be several distinct asportations in law by several persons, yet all may be indicted as principals who concur in the felony before the final carrying away of the goods from the virtual custody of the owner, (2 East, P. C. 557;) but two cannot be convicted upon an indictment charging a joint larceny, unless there be evidence to satisfy a jury that they were concerned in a joint taking. 2 Stark. on Evidence,840. If one steal another man's goods, and afterwards another stealeth from him, the owner may prosecute the first or the second felon at his choice. Dalt. c. 162. There is no occasion that the carrying away be by the hand of the party accused; for if he procured an innocent agent, as a child or a lunatic, to take the property, or if he obtained it from the sheriff by a replevin, without the slightest color of title, and with a felonious design, he will himself be a principal offender. Hawk. b. I, c. 33, s. 12.-CHITTY.

The "carrying away " need not be literally construed; dominion and control over the object complete the deed; as to entice a brute by placing food in such a position as to operate on the volition of the animal. 8 Ala. (Porter) 519. Possession once taken by the thief, though it be but for an instant, the crime is committed; because thereby the possession and dominion of the owner is, at least for that instant, destroyed. State v. Hardin, 2 N. C. 413 (1838). State v. Green, 81 N. C. 560 (1879).

(8) [With the intention of stealing.] The felonious quality consists in the intention of the prisoner to defraud the owner and to apply the thing stolen to his own use; and it is not necessary that the taking should be done lucri causa [For the sake of gain]: taking with an intent to destroy will be sufficient to constitute the offence if done to serve the prisoner or another person, though not in a pecuniary way. R. & R. C. C. 292. In a late singular case it was determined that where a servant clandestinely took his master's corn, though to give it to his master's horses, he was guilty of larceny, the servant in some degree being likely to diminish his labor thereby. R. & R. C. C. 307. 3 Burn, J., 24 ed. 209. See a late case, Rus. & Ry. C. C. 118, under very particular circumstances. It is sufficient if the prisoner intend to appropriate the value of the chattel and not the chattel itself to his own use, as where the owner of goods steals them from his own servant or bailee in order to charge him with the amount. 7 Hen. VI. f. 43. The intention must exist at the time of the taking; and no subsequent felonious intention will render the previous taking felonious.

We have seen that a taking by finding, and a subsequent conversion, will not amount to a felony. 3 Inst. 108. I Hawk. c. 33, S. 2. 2 Russ. 1041. But if the goods are found in the place where they are usually suffered to lie, as a horse on a common, cattle in the