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prisoner may be acquitted of the circumstances of aggravation, namely, the fear or violence, and found guilty of stealing from the person or simple larceny.(r)

Upon an indictment for robbery charging a wounding, the jury may, under the 14 & 15 Vict. c. 19, s. 5, convict of unlawfully wounding, and thereupon the prisoners may be imprisoned with or without hard labor for any term not exceeding three years.(s)

By the 24 & 25 Vict. c. 96, s. 115, all offences mentioned in this Act which are committed within the jurisdiction of the admiralty of England or Ireland, may be dealt with, inquired of, tried, and determined in any county or place where the offender is apprehended or in custody.()

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*CHAPTER THE TENTH.

OF LARCENY.

WE may now consider the offence called larceny, a word formed by contraction, or rather, as it has been said, by abuse, from latrociny, latrocinium, and used to signify the violation of the property of another by theft, where the property is not taken from the house, curtilage, &c., or the person of the owner, under such circumstances of aggravation as have been noticed in the preceding chapters of this book. Formerly there was a distinction of this offence into grand larceny and petit larceny, the offence being grand larceny when the value of the property taken was above twelve-pence, and petit larceny, when the value was only twelve-pence, or under that sum.(a) But by the 24 & 25 Vict. c. 96, s. 2, “ every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects as grand larceny was before the 21st day of June, 1827; and every Court whose power as to the trial of larceny was before that time limited to petty larceny shall have power to try every case of larceny, the punishment of which cannot exceed the punishment hereinafter mentioned for simple larceny, and also to try all accessories to such larceny."

By sec. 4, "whosoever shall be convicted of simple larceny, or of any felony hereby made punishable like simple larceny, shall (except in the cases hereinafter otherwise provided for) be liable, at the discretion of the Court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(b)

Every principal in the second degree and every accessory before the fact is punishable in the same manner as a principal in the first degree, and every accessory after the fact, except a receiver of stolen property, is punishable with imprisonment for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, by sec. 98.(c)

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*The offence and punishment of receivers of stolen property will be mentioned in a subsequent chapter.

(r) 2 East P. C. c. 16, s. 167, p. 784. But where a special verdict was found, which stated facts amounting only to a larceny, as the only doubt referred to the Court was whether the prisoners were or were not guilty of the felony and robbery charged against them in the indictment; the judges thought that judgment of larceny could not be given upon such finding. They, therefore, remanded the prisoners to be tried upon another indictment: Rex v. Francis, ante, p. 107.

(8) See the section, ante, vol. i. p. 1012.

(t) See the section, post, Larceny.

(a) Stat. West. 1 (3 Edw. 1), c. 15. This statute made regulations as to such offenders as were to be mainpernable, and mentions larceny as of two kinds, namely, grand and petit-grand larceny, when the thing stolen was above the value of twelve-pence; and petit larceny, when of the value of twelve-pence, or under.

(b) This clause is taken from the 7 & 8 Geo. 4, c. 29, ss. 3, 4; 9 Geo. 4, c. 55, ss. 3, 4 (I.); and 12 & 13 Vict. c. 11, s. 1. See sec. 118, as to hard labor; sec. 119, as to solitary confinement and whipping.; and sec. 117, as to fine and sureties, ante, p. 67.

(c) Ante, p. 67. For the proceedings for the trial of accessories, see vol. 1, p. 67, et seq.

The definition of the offence of larceny is thus given by an ancient writer. "Furtum est, secundum leges, contractatio rei alienæ fraudulenta, cum animo furandi, invito illo domino cujus res illa fuerit. Cum animo dico, quia sine animo furandi non committitur."(d) In subsequent definitions, the taking of the property has been stated to be "felonious;"(e) which expression has been rendered as signifying a taking animo furandi, or, as the civil law expresses it, lucri causâ.(ƒ) In a late work of great learning and research, larceny is defined at large to be "the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner."(g) And in a case of recent occurrence, which was reserved for the consideration of the twelve judges, the learned judge who delivered their opinion said, that the true meaning of larceny is, the felonious taking the property of another without his consent, and against his will, with intent to convert it to the use of the taker "(h)1

With respect to a taking lucri causâ, it is stated that upon the debate in a case which underwent great discussion, one of the learned judges defined larceny as being "a wrongful taking of goods with intent to spoil the owner of them, causâ lucri;" but if this motive be a necessary ingredient, it appears that it is not confined to the acquisition of pecuniary advantage, or to the taking of the thing stolen for the sake of its worth. Thus a taking with intent to destroy is sufficient to constitute larceny, if it be done to effect an object of supposed advantage to the party committing the offence, or to a third person. The prisoner forced open a stable door, took out a horse, led it about a mile to an old coal pit, and there backed it down and killed it, his object being that the horse might not contribute to furnish evidence against one Howarth, who was under a charge for stealing it: he had no intention of deriving any pecuniary benefit from taking the horse. Thomson, C. B., saved the point, whether a taking with this intent constituted larceny: and, upon conference, six judges against five held it not essential that the taking should be lucri causâ: they thought a taking, fraudulenter, with intent wholly to deprive the owner of the property, sufficient; but some of the six *also thought that the object of protecting Howarth might be deemed a benefit or lucrum.(i)9

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(d) Bract. lib. iii. c. 32, p. 150. So Glanvil, in words nearly similar, says, "Furtum est tractatio rei alienæ fraudulenta, animo furandi, invito illo cujus res illa fuerit:" Glanv. lib. x. c. 13. And see Brit. c. 15, p. 22; Flet. lib. i. c. 38, p. 54; 3 Inst. 107. (e) 3 Inst. 107; 1 Hale 503; 1 Hawk. P. C. c. 33; 4 Blac. Com. 229.

(f) 4 Blac. Com. 232; 2 East P. C. c. 16, s. 2, p. 553, citing Just. Inst. lib. iv. tit. 1, s. 1, which, it is observed, seems to go further than the common law in the following definition-furtum est contractatio fraudulosa lucri faciendi causâ, vel ipsius rei, vel etiam usus ejus possessionisve

(g) 2 East P. C. c. 16, s. 2, p. 553. In Reg. v. Halloway, 1 Den. C. C. 370, Parke, B., said, "Perhaps this was the more accurate definition; but it needed some addition; the taking should be not only wrongful and fraudulent, but also without any color of right.'"' But it is clear that the "felonious intent" excludes any color of right.

(h) By Grose, J., in Hammond's case, 2 Leach 1089.

(i) Rex r. Cabbage, MS., Bayley, J., and R. & R. 292.

To constitute the crime of larceny there must be a trespass, in the original taking of possession; the taking must be, invito domino, against the will of the owner, and the property in his actual or constructive possession: Hit v. State, 9 Yerg. 198. The criminal intention constitutes the offence, and is the only criterion by which to distinguish a larceny from a trespass. It is not sufficient that the goods be taken for the purpose of destroying them; as if one take the horse of another for the purpose of destroying him, to injure his neighbor-and should destroy him-this would be malicious mischief, but not larceny. Where a defendant assisted in securing a slave, to the end that she might escape from her master and obtain her freedom, but there was no intention to convert the property to the use of the defendant, an indictment for larceny could not be sustained: State v. Hawkins, 8 Port. 461.

And see also, Fields v. State, 6 Cold. 524; Isaacs v. State, 30 Texas 450; Long v. State, 11 Fla. 295; State v. Ledford, 67 N. C. 60; M Daniel v. State, 33 Texas 419; Gardiner v. State, Ibid. 692; Williams v. State, 44 Ala. 396; State v. Gray, 37 Mo. 463.

It is no defence to larceny that it was burglary: People v. Smith, 57 Barb. 46.

2 An intent to convert to the thief's own use is not necessary. All that is required is the intent to deprive the owner of his property: People v. Inares, 28 Cal. 380; Dignowitty

VOL. II.-8

Where a letter sorter in a post-office went to a water-closet, and, after he had placed himself upon the seat, put his hand between his legs, and he was immediately taken into custody, and two letters, sealed and unopened, lay on the paper in the pan, and the jury found that the prisoner, having committed a mistake in sorting the letters, secreted them in the water-closet, in order to avoid the penalty which was supposed to be attached to such a mistake; it was held, on a case reserved, that the prisoner was guilty of larceny; for he must have intended wholly to deprive the owners of the letters; the moment the prisoner dropped the letters in the watercloset, there was an asportavit, and the intent was shown by the place where they were dropped.(j)

The prisoner was convicted of stealing at Ross, from an officer of the post-office, a post letter The prisoner had been cook to Mrs. Garbett of Upton Bishop, and had given notice to leave, and was in treaty with Mrs. Dangerfield of Cheltenham, for a similar situation. Mrs. D. had consented to employ her if a satisfactory answer from Mrs. G. should be returned to a letter making inquiries as to her character. This letter, the subject of the present indictment, was written by Mrs. D., directed to Mrs. G., and posted at Cheltenham, and was duly forwarded to the post-office at Ross Mrs. G., having found fault with the prisoner, discharged her from her service, and told her that a character would not be given to her. The day after her dismissal she went to the post-office at Ross, and applied to the clerk for the letter from Cheltenham, addressed to Mrs. G., stating that she was a servant of Mrs. G., and that Mrs. G. expected a letter from Cheltenham that morning, which she was to take; but on being informed that the one letter by itself could not be given, she took from the office all the letters for Mr. and Mrs. G., including that written by Mrs. D., and burnt it, but delivered the others to a person, who safely conveyed them to Mr. and Mrs. G. And, upon a case reserved, upon the question whether the taking and destroying of the letter under these circumstances amounted to larceny, all the judges present, except Platt, B., were of opinion that this was larceny; for supposing that it was a necesssry ingredient in that crime, that it should be done lucri causâ (which was not admitted), there were sufficient advantages to be obtained by the prisoner in making away with the written character. (k)

The prisoner was indicted for the offence of stealing an iron axle, the property of William Williams and others, his masters. It appeared that the prisoner was in the employment of Messrs. Williams, ironmasters, as a puddler; his duty being to convert pig iron into puddle bar; for which he was paid according to the *148] weight of the puddle bar produced from his furnace: and that the prisoner threw into his furnace an iron axle belonging to his masters, which had formerly been used for a tram cart. It was proved that the value of the axle in its former state was from 6s. to 7s., and that the benefit to the prisoner was a little better than a penny. Tindal, C. J., told the jury that it was manifest the act done by the pri8 ner caused the destruction of the axletree in its former state, so that it never could be restored in specie to the masters as an axletree, though it might increase the mass of iron produced from the furnace: and if they were satisfied that the throwing the axle into the furnace was an act done by him without the consent and against the will of his masters, and that the pay of the prisoner was thereby increased, and that

(j) Reg. v. Wynn, 1 Den. C. C. 365; 2 C. & K. 859 (61 E. C. L. R.). See this case more fully stated, post, "Post Office."

(k) Reg. v. Jones, 1 Den. C. C. R. 188; 2 C. & K. 236. In the course of the argument, Pollock, C. B., said, "For the prisoner's counsel's argument the case would be the same as if the prisoner had picked the postman's pocket of the letter. I see no difference. Will it be contended that picking a rich man's pocket, not to make yourself rich, but to make him poor, would not be a larceny?" Parke, B., "Supposing you pick A.'s pocket to give to a beggar in the next street." See Reg. v. Gillings, 1 F. & F. 36, post, “Post Office."

v. State, 17 Texas 521; State v. South, 4 Dutch. 28; Hamilton v. State, 35 Miss. 214; Vaughn v. Comm., 10 Gratt. 758; Keely v. State, 14 Ind. 36. But when the accused took and carried away muskets to prevent others from using them against himself and his friends, it was held, that he was not guilty of larceny: United States v. Durhee, 1 M‘All. C. C. 196.

his object and motive was to obtain such increase of pay, all that was necessary, in point of law, to constitute a felony was made out. That the gain to the prisoner was indeed extremely small, in this particular instance; but that the character and nature of the offence did not depend upon the extent of the gain to the party offending or injury to the master: which, however, it must be observed were extremely disproportioned to each other; and which loss to the masters might be carried almost to an incalculable amount by the opportunity of repeating the offence.(1)

It has also been decided, that clandestinely taking a master's corn, though to give the master's horses, is felony: especially if by so feeding them the servant's labor is likely to be diminished. The prisoners had the care of one of their master's teams: the master allowed what beans he thought fit, but they, by means of a false key, took from the granary additional quantities. They were indicted for stealing two bushels, and the jury found that they took them to give their master's horses. A case was reserved upon the question whether this was felony: eight judges out of eleven held that it was, and that the purpose to which the prisoners intended to apply the beans did not vary the case; and further, as it was alleged that the additional beans would diminish the work of the men who had to look after the horses, so that the master not only lost his beans, or had them applied to the injury of his horses, but the men's labor was lessened, it appeared that the lucri causâ to give themselves ease, was an ingredient in the case. (m) So where the prisoners took from the floor of a barn, in the presence of the thrasher, five sacks of unwinnowed oats, and secreted them in a loft there, for the purpose of giving them to their master's horses, they being employed as carter and carter's boy, but not being answerable at all for the condition or appearance of the horses, the jury found that they took the oats with intent to give them to their master's horses, and without any intent of applying them for their private benefit: and, upon a case reserved, the greater part of the judges present (except Erle, J., and Platt, B.) appeared to think that this was larceny, because *the prisoners took the oats knowingly against the will of the owner, and without color of title or authority, with intent not to take temporary pos[*149 session merely, and then abandon it (which would not be larceny), but take the entire dominion over them; and that it made no difference that the taking was not lucri causâ, or that the object of the prisoners was to apply the oats in a way that was against the wish of the owner, but might be beneficial to him. But all agreed that they were bound by the previous decisions to hold this to be larceny, though several of them expressed a doubt if they should have so decided if the matter were res integra. Erle, J., and Platt, B., were of a different opinion; they thought that the former decisions proceeded, in the opinion of some of the judges, on the supposition that the prisoners would gain by the taking, which was negatived in this case; and they were of opinion that the taking was not felonious, because to constitute larceny it was essential that the prisoner should intend to deprive the owner of the property in the goods, which he could not if he meant to apply it to his use.(n) In the interval between the last case and the preceding one Lord Abinger, C. B., and Rolfe, B., had approved of acquittals in similar cases. (o) and now by the 26 & 27 Vict. c. 103, sec. 1:(p) "If any servant shall, contrary to the orders of his master, take from his possession any corn, pulse, roots, or other food, for the purpose of giving the same or of having the same given to any horse or other animal belonging to or in the possession of his master, the servant so offending shall not by

(1) Reg. v. Richards, Monmouth Sum. Ass. 1844. Verdict, guilty. The text is a correct copy of C. J. Tindal's note of the case which he gave the Editor; s. c., 1 C. & K. 532 (47 E. C. L. R.).

(m) Rex v. Morfit, MS., Bayley, J., and R. & R. 307. In Reg. v. Handley, C. & M. 547, (41 E. C. L. R.), Patteson and Cresswell, JJ., acted on this case, and refused to reserve the point.

(n) Reg. v. Privett, 1 Den. C. C. R. 193 ; 2 C. & K. 114 (61 E. C. L. R.). This and the preceding case are retained because they may throw light on the question as to the lucri causa in other cases.

(0) Reg. v. Smith, 1 Cox C. C. 10.

(P) The Act recites that "the offence of taking corn or other food by a servant from the possession of his master, contrary to his orders, for the purpose of giving the same, or of having the same given, to the horses or other animals of such master, is felony."

reason thereof be deemed guilty of or be proceeded against for felony, but shall, on conviction of such offence before two justices of the peace, at their discretion, either be imprisoned, with or without hard labor, for any term not exceeding three months, or else shall forfeit and pay such penalty as shall appear to them to be meet, not exceeding the sum of five pounds, and if such penalty shall not be paid, either immediately after the conviction, or within such period as the said justices shall at the time of the conviction appoint, the servant so offending shall be imprisoned, with or without hard labor, for any term not exceeding three months, unless such penalty be sooner paid: Provided always, that if upon the hearing of the charge the said justices shall be of opinion that the same is too trifling, or that there are circumstances in the case which render it inexpedient to inflict any punishment, they shall have power to dismiss the charge, without proceeding to a conviction: Provided also, that if upon the trial of any servant for feloniously taking from his master any corn, pulse, roots, or other food consumable by horses or other animals, such servant shall allege that he took the same under such circumstances as would constitute an offence punishable under this Act, and therefore shall satisfy the jury charged with his trial, then it shall be lawful for such *jury to return a verdict accordingly; *150] and thereupon the Court before which such trial shall take place shall proceed to award such punishment against such servant as may be awarded by two justices of the peace on the conviction of any person under the provisions of this Act: Provided also, that in case of non-payment of any penalty to be imposed by the Court on such servant, he shall be imprisoned, with or without hard labor, for any term not exceeding three months, as the Court shall order, unless such penalty be sooner paid." (9)

The term lucri causâ implies that it should be to gain some advantage to the party committing the offence; if, therefore, a person from idle impertinent curiosity, either personal or political, opens another person's letter, that is not larceny, even if it were done to prevent the letter from arriving at its destination. A parcel containing letters was sent by a coach of which the prisoner was the proprietor; the prisoner, instead of delivering the parcel, opened it, read the letters, and disposed of them as he thought proper; and it was held, that this was a trespass and breach of contract, but no felony, although it was done to gratify some idle curiosity, or perhaps to prevent the letters from arriving.(r)

"all

The prisoner was indicted for stealing pieces of paper, and it appeared that two very important dispatches had been received in the Colonial Office, and that a certain number of copies of these despatches had been privately printed for distribution among the members of the Government, and some of them had been delivered at the Colonial Office, and placed on a table in that office; the prisoner had been in that office, and close to the table where the copies were lying, and shortly afterwards he sent one of these copies to the editor of the "Daily News" newspaper, with a note marked "private," requesting that the despatch might be inserted in the "Daily News," and stating that no other journal had received a copy. The editor had no previous acquaintance with the prisoner. The editor wrote to the prisoner at the address mentioned in his letter, and he replied that it was right," but he did not wish his name to be mentioned in any way as connected with the publication. The despatches were published, and in consequence of a letter from the editor the prisoner called on him, and introduced himself as the person who had sent the despatches, and he pressed the editor not to give any further information. There was no pecuniary inducement for the act; but it rather appeared that the prisoner bore some resentment to the Colonial Minister for the refusal of an appointment. The editor stated that the only object for which the despatches were sent to him, as he understood, was that they might be published in the "Daily News." Martin, B., told the jury that the offence consisted in the taking away the property of another without his consent, and with the intention at the time to convert that property to the use of the taker. Such documents as these were clearly the subject of larceny, and as the stealing of the paper itself would have been a (9) Sec. 2 gives an appeal; and sec. 5 confines the Act to England, so that the offence remains a felony in Ireland.

(r) Reg. v. Godfrey, 8 C. & P. 563 (34 E. C. L. R.), Lord Abinger, C. B.

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